# People v. Mentch > California Supreme Court · November 24, 2008 · 45 Cal. 4th 274 URL: https://www.frixlaw.com/law-library/cases/5452520 ## Case - **Full name:** THE PEOPLE, and v. ROGER WILLIAM MENTCH, and - **Court:** California Supreme Court - **Decided:** November 24, 2008 - **Citations:** 45 Cal. 4th 274; 85 Cal. Rptr. 3d 480; 195 P.3d 1061; 50 A.L.R. 6th 673; 2008 Cal. LEXIS 13630 - **Precedential status:** Published - **Opinion:** Concurrence by Chin - **Judges:** Chin, Werdegar - **Cited by:** 91 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5452520 ## Opinion text CHIN, J., Concurring. I entirely agree with, and have signed, the majority opinion. I write separately to underscore the importance of an issue that we asked the parties to brief but that, due to our holding on the merits of the compassionate use defense, we do not have to decide in this case. In People v. Mower (2002) 28 Cal.4th 457 [ 122 Cal.Rptr.2d 326 , 49 P.3d 1067 ], we held that the defendant has the burden to raise a reasonable doubt regarding the compassionate use defense. As the majority opinion notes, the trial court instructed the jury on the compassionate use defense by modifying the standard CALJIC instruction. The instruction included this statement: “ ‘To establish the defense of compassionate use, the burden is upon the defendant to raise a reasonable doubt as to guilt....’” (CALJIC No. 12.24.1 (2004 rev.) (7th ed. 2003), quoted in maj. opn., ante, at pp. 281-282, fn. 4.) The standard CALCRIM instruction, by contrast, does not place any burden whatever on the defendant. Instead, it states, “The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or transport marijuana for medical purposes. If the People have not *293 met this burden, you must find the defendant not guilty of this crime.” (Judicial Council of Cal., Crina. Jury Instas. (2008) CALCRIM No. 2363.) Aware of the difference between the two standard instructions, and concerned about whether the trial court properly instructed the jury in this case, we directed the parties “to brief the additional question whether the defendant’s burden to raise a reasonable doubt regarding the compassionate use defense (see People v. Mower[, supra,] 28 Cal.4th 457 ) is a burden of producing evidence under Evidence Code section 110 or a burden of proof under Evidence Code section 115. (See, e.g., Evid. Code, §§ 500, 501, 502, 550, and the Law Revision Commission Comments thereto; see also Pen. Code, § 189.5 and cases interpreting it, including People v. Deloney (1953) 41 Cal.2d 832, 841-842 [ 264 P.2d 532 ], People v. Cornett (1948) 33 Cal.2d 33, 42 [ 198 P.2d 877 ], and People v. Loggins (1972) 23 Cal.App.3d 597 [ 100 Cal.Rptr. 528 ]; and People v. Frazier (2005) 128 Cal.App.4th 807, 816-822 [ 27 Cal.Rptr.3d 336 ].) In this regard, the parties should also discuss whether the trial court should instruct the jury on the defendant’s burden to raise a reasonable doubt and, if so, how. (Compare CALJIC No. 12.24.1 (2005 Revision) with . . . CALCRIM No. 2363.)” The parties have briefed the question and agree on the answer. They agree that the defendant’s burden is only to produce evidence under Evidence Code section 110, and that once the trial court finds the defendant has presented sufficient evidence to warrant an instruction on the defense, the defendant has fully satisfied this burden; accordingly, the court should not instruct the jury on any defense burden. (While generally agreeing that the standard CALCRIM instruction is correct in this regard, the Attorney General does suggest one modification of that instruction.) If the parties’ answer to our question is correct, CALJIC No. 12.24.1 misinstructs the jury. The Attorney General argues that any error in this case was harmless beyond a reasonable doubt for two reasons: (1) error in requiring defendant to raise a reasonable doubt as to a defense is inherently harmless in light of the instructions as a whole, which make clear to the jury that the prosecution has the overall burden of proof beyond a reasonable doubt; and (2) defendant simply did not establish the compassionate use defense. The majority concludes that any error in this regard was harmless because defendant “has failed to show he was entitled to a primary caregiver instruction . . . .” (Maj. opn., ante, at p. 292, fn. 12.) I agree and thus further agree that we need not now decide the question regarding the nature of defendant’s burden to raise a reasonable doubt. {Ibid.) *294 Nevertheless, the question remains important. As the Attorney General notes in arguing that a defendant’s burden is only to produce evidence under Evidence Code section 110, and that the court should not instruct the jury on this burden, “An instruction on the defendant’s burden of production may run risks that are best avoided.” Accordingly, the question needs to be resolved, preferably sooner rather than later. In the meantime, trial courts might well be advised to be cautious before instructing on any defense burden. Corrigan, J., concurred. On December 17, 2008, the opinion was modified to read as printed above. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5452520. Public record. Not legal advice.