California Demurrer: When charges do not apply to the defendant even if the facts of the case are held to be correct.

Below is a sample pleading for the dismissal of a marijuana charge based on the demurrer (PC 1000)

Download as a PDF file

 

Name_______________________________________________

 

Address______________________________________________

In Pro Per

 

Superior Court of California

County of _____________________________

 

THE PEOPLE OF THE STATE OF CALIFORNIA

Plaintiff,

vs.

Name_____________________

Defendant in Pro Per )

Case No.: No.

 

DEMURRER, MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION

DEMURRER

 

Defendant ____________________________________________ demurs and objects to the jurisdiction of this court in this matter. _______________________________ is a qualified patient under the Compassionate Use Act of 1996 ("Act"), enacted by initiative Proposition 215 by the electorate November 5, 1996. The only qualification required by the Act is the patient's recommendation letter of his physician (see Exhibit A). A qualified patient under the Act is exempt from criminal penalties and criminal prosecution regarding the cultivation and possession of marijuana. Where there is no criminal penalties and prosecution is prohibited the court has no jurisdiction.

POINTS AND AUTHORITIES:

1. Health and Safety Code §11362.5 (d) holds: " Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician."

2. The California Supreme Court in People v. Mower, 28 Cal 4th 457, held in 2002:

Inasmuch as this statute provides that sections 11357 and 11358, which criminalize the possession and cultivation of marijuana, "shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician" (§ 11362.5(d)), the provision renders possession and cultivation of marijuana noncriminal under the conditions specified. (Mower, ibid. p. 482)

... in view of his or her status as a qualified patient or primary caregiver, the grand jury or the magistrate should not indict or commit the defendant in the first place, but instead should bring the prosecution to an end at that point. Mower, ibid. 473

Evidence of a defendant's status as a qualified patient or primary caregiver exculpates him or her from guilt of the crimes of possession or cultivation of marijuana, because such a status renders possession and cultivation of marijuana noncriminal. Mower, ibid. 485, FN5

As a result of the enactment of section 11362.5(d), the possession and cultivation of marijuana is no more criminal-so long as its conditions are satisfied-than the possession and acquisition of any prescription drug with a physician's prescription. People v. Mower, 28 Cal 4th 457, 482

... the Court of Appeal stated that "jurisdictional issues can be raised at any time," and implied that such issues include immunity from prosecution. We recognize that we sometimes have spoken of immunity from prosecution as "jurisdictional."... the limited immunity from prosecution granted by section 11362.5(d) implicates jurisdiction in its less fundamental sense; it surely does not undermine a court's personal or subject matter jurisdiction. Hence, it is subject to bars including waiver and forfeiture. Mower, ibid. 485, FN6

 

DECLARATION:

________________ is a qualified patient under the Act as evidenced by the recommendation letter of his physician (see Exhibit A). As such a qualified patient, he/she committed no crime in cultivating and possession of marijuana for his/her medical purposes, and criminal prosecution is prohibited. §11362.5 abrogates the application of §§11357 and 11358, whose statutes begin with the phrase "Unless otherwise authorized by law,…" __________________________ is a patient who is innocent, exempt, and immune from criminal laws regarding the cultivation and possession of marijuana. ________________ was merely exercising legal rights pursuant to the California Constitution.

Prayer:

__________________ requests the court to dismiss with prejudice all counts without leave to amend.

Respectfully,

Name____________________________________________________Date______________________

IN PRO PER

 

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