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Trial court's order placing defendant on three-years' probation for cultivation of marijuana and simple possession is affirmed in part and reversed in part where: 1) the trial court's error in including the numerical limits set forth in section 11362.77(a) of the Medical Marijuana Program Act (MMPA) when instructing the jury regarding the amount of medical marijuana that defendant could lawfully possess and/or cultivate unconstitutionally amended the Compassionate Use Act passed by the voters, but the error was harmless as defendant admitted he was growing marijuana for at least four other people and he proffered no evidence to show that he was the primary caregiver for any of them; but 2) defendant's conviction for simple possession is reversed as under section 11357(a), the instructional error capping the amount of marijuana defendant could lawfully possess was prejudicial because defendant himself was a qualified patient in April 2006, and as such, he was entitled to possess an amount of marijuana reasonably related to his own medical needs.
Filed November 17, 2009
Opinion by Judge Benke
For Appellant: Russell S. Babcock
For Appellee: Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Meredith A. Strong, Deputy Attorney General.
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