The KMUD news reported tonight a California Supreme Court ruling which eliminates as a “primary caregiver” the right to distribute marijuana to patients unless the provider renders treatment other than the marijuana itself.

So I got home and tried to find the case. There’s a story on the SF Chronicle site, but it sort of misses the point, focusing on a side point – state approved cooperatives yes, your street corner dealer no. The article barely mentions the “primary caregiver” issue, which was the central issue of the case. My first assumption was that Cynthia had misstated the nature of the case, but fortunately the Chronicle article links to the decision itself. It turns out the Chronicle writer just doesn’t really understand the case. I offer my profuse apology to Cynthia for doubting her even for a brief moment.

The case arose from events in Santa Cruz. The defendant made a number of large cash deposits at a bank and the teller took notice. When the amount of the deposits exceeded $10,000 over a two month period she notified the sheriff who busted the defendant. The defendant brought to the stand several witnesses to testify that they had designated him their “primary caregiver” which would make it legal for him to sell to them.

The Supreme Court rejected the defendant’s status as “primary caregiver” because he did not “consistently assume responsibility for the housing, health, or safety of the patient.” And it’s not enough to subsequently designate someone, the relationship must exist when the marijuana is being distributed. And as Cynthia reported, you have to offer something more than just the marijuana.

There is also a very interesting concurring opinion by Justice Chin, addressing a point which was not necessary to the decision of the case. It’s a fine point, but the majority opinion continually states that the defendant has the “burden of raising a reasonable doubt” as to whether he had the right to possess and distribute the stuff as a primary caregiver. The jury instruction apparently says precisely that, but Chin argues that the defendant merely has the obligation to produce evidence while the burden of proof remains with the prosecution. It may seem a fine point, but it could potentially affect how a jury deliberates on the question and thus impact the result. Unfortunately for the defendant, the jury never even got to consider the question in this case. But Justice Chin pretty much issued a warning to trial courts as to how they’re instructing juries.