KOLKEY, J., Concurring and Dissenting. I agree that defendant’s conviction must be reversed: Under the standard established by the California Supreme Court in People v. Mower (2002) 28 Cal.4th 457, 481 [122 Cal.Rptr.2d 326, 49 P.3d 1067], defendant’s proffered evidence that his physician told him to “go ahead” and try marijuana for his migraine headaches raises a reasonable doubt whether he had a physician’s approval for purposes of the Compassionate Use Act of 1996 (Compassionate Use Act; Health & Saf. Code, § 11362.5).1
But I disagree with the majority’s construction of the term “approval” under the Compassionate Use Act. The majority concludes that “a physician gives his or her ‘approval’ of a patient’s marijuana use within the meaning of the Compassionate Use Act if the physician expresses to the patient a favorable opinion of marijuana use for treatment of the patient’s illness.” (Maj. opn. ante, at p. 344.)
However, the dictionary offers several definitions for the word “approval.” The definition of “approval” as a mere “favorable opinion” takes the broadest and loosest construction of the term, stretches the concept of “approval” beyond the purposes of the Compassionate Use Act, and will promote needless litigation over whether a physician’s innocent remarks short of a prescription for treatment constitute approval.
[352]I.
When interpreting a statute adopted by initiative, like the Compassionate Use Act, “ ‘[a]bsent ambiguity, we presume that the voters intend the meaning apparent on the face of [the] initiative measure [citation] and the court may not add to the statute or rewrite it to conform to an assumed intent that is not apparent in its language.’ [Citation.] Of course, in construing the statute, ‘[t]he words . . . must be read in context, considering the nature and purpose of the statutory enactment.’ ” (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 301 [58 Cal.Rptr.2d 855, 926 P.2d 1042] (Lungren); see Consumer Advocacy Group, Inc. v. Exxon Mobil Corp. (2002) 104 Cal.App.4th 438, 443—444 [128 Cal.Rptr.2d 454] (Consumer Advocacy).)
In this case, section 11362.5, subdivision (d)—the principal provision of the Compassionate Use Act—provides that California’s criminal prohibitions against the possession and cultivation of marijuana do not apply to a patient, or the patient’s caregiver, who possesses or cultivates marijuana for the patient’s personal medical purposes “upon the written or oral recommendation or approval of a physician.”
The statute thus links the terms “recommendation” and “approval” in the context of a physician’s authorization of the medical use of marijuana. However, the statute nowhere defines those terms.
When a term or phrase is not defined in a statutory initiative, “it can be assumed to refer not to any special term of art, but rather to a meaning that would be commonly understood by the electorate.” (Lungren, supra, 14 Cal.4th at p. 302; Consumer Advocacy, supra, 104 Cal.App.4th at p. 444.) “To determine the common meaning, a court typically looks to dictionaries.” (Consumer Advocacy, supra, 104 Cal.App.4th at p. 444, citing Lungren, supra, 14 Cal.4th at p. 302.)
The dictionary reveals that “approval” has a number of definitions. The meaning of “approval” adopted by the majority is based on the broadest definition of the word “approve,” i.e., “to have or express a favorable opinion of.” (Merriam-Webster’s Collegiate Dict. (10th ed. 2001) p. 57.)
But the same dictionary also defines “approve” as meaning “to give formal or official sanction to . . . .” (Merriam-Webster’s Collegiate Dict., supra, at p. 57.) So do other dictionaries. (See American Heritage Dict. (3d ed. 1992) p. 91 [defining “approve,” inter alia, as “[t]o consent to officially or formally; confirm or sanction”].)
“Sanction,” in turn, means “explicit or official approval, permission, or ratification: APPROBATION.” (Merriam-Webster’s Collegiate Dict., supra, [353]p. 1031; see American Heritage Dict., supra, p. 1596 [“sanction” defined as “[a]uthoritative permission or approval that makes a course of action valid”].)
In the context of the requirement of a physician’s approval of the personal medical use of an otherwise illegal drug, the definition of “approval” as a “formal or official sanction” to use such a drug better serves the purpose of the Compassionate Use Act than the expression of “a favorable opinion” posited by the majority. (Maj. opn. ante, at p. 344.)
First, “ 1 “where a word of common usage has more than one meaning, the one which will best attain the purposes of the statute should be adopted (Sierra Club v. City of Hayward (1981) 28 Cal.3d 840, 860, fn. 12 [171 Cal.Rptr. 619, 623 P.2d 180]; People v. Quesada (1991) 230 Cal.App.3d 525, 535 [281 Cal.Rptr. 426].)
In this case, the stated purpose of the Compassionate Use Act, as set forth in section 11362.5, subdivision (b)(1)(A), is “[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of [various conditions and illnesses] for which marijuana provides relief.” (Italics added.)
Thus, the express explanation of the statute’s purpose suggests that a physician must assess the appropriateness of marijuana as a medical treatment, determine that the patient’s health would benefit from its use, and then recommend it, before the statute permits legal possession or cultivation of marijuana. In short, the statutory language demonstrates that the voters intended that a process occur, whereby doctors give a formal sanction to the use of marijuana on an individualized basis to bona fide patients. (Cf. Conant v. McCaffrey (N.D.Cal. 1997) 172 F.R.D. 681, 686.) This deliberative process, as expressed in the statutory purpose, necessarily protects the patient and also acts as a bright line in granting limited immunity for the otherwise unlawful marijuana possession or cultivation. Indeed, the ballot arguments separately reveal that the physician’s authorization was meant to act as a bright line and to prevent nonmedical use. (See pt. II, post.)
In contradistinction, the mere expression of a favorable opinion of marijuana use suggests less deliberation, less formality, and less finality than a recommendation or other official sanction of the use of marijuana as a treatment.
Second, elsewhere in the Compassionate Use Act, the statute only refers to “recommendation” (§ 11362.5, subds. (b)(1)(A) & (B), (c)), not “approval,” [354]thereby suggesting that approval may be distinct from recommendation but has an equivalence in weight and purpose. For instance, as noted, the statute states that its purpose is “[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician . . . .” (§ 11362.5, subd. (b)(1)(A), italics added.) Likewise, it states that an additional purpose is “[t]o ensure that patients . . . who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.” (§ 11362.5, subd. (b)(1)(B), italics added.) And finally, it provides that “no physician . . . shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.” (§ 11362.5, subd. (c), italics added.)
Thus, unless we read “approval” to connote the same weight and purpose as a physician’s “recommendation,” the statute would protect physicians from punishment only in the case of an authorization that rises to the level of a recommendation of marijuana use, but not in the case of an approval, because section 11362.5, subdivision (c), only provides that a physician shall not be punished “for having recommended marijuana to a patient for medical purposes.” Accordingly, while there is no need today to construe the scope of section 11362.5, subdivision (c), the exclusive use of the term “recommendation” in that subdivision and in the subdivision setting forth the statutory purposes suggests that the term “approval,” while distinct from “recommendation,” must have a similar formality and gravity. Otherwise, its anomalous introduction into the provision granting limited immunity to patients from prosecution for the possession or cultivation of marijuana (§ 11362.5, subd. (d)) would stray from the otherwise consistent statutory provisions that focus only on the physician’s recommendation.
Third, the rule of statutory construction, noscitur a sociis—that “a word takes meaning from the company it keeps”—supports a definition of “approval” that affords the same level of formality and gravity as “recommendation.” (People v. Drennan (2000) 84 Cal.App.4th 1349, 1355 [101 Cal.Rptr.2d 584] (Drennan).) Under that canon of construction, “ ‘[a] word of uncertain meaning may be known from its associates and its meaning “enlarged or restrained by reference to the object of the whole clause in which it is used.” [Citation.]’ [Citation.]” (Ibid.; see also Lungren, supra, 14 Cal.4th at p. 307.) Applying this canon, the tandem statutory references to “recommendation” and “approval” in the context of a physician’s authorization indicate that both are meant to provide the same level of formality and gravity in connection [355]with the statute’s objective of authorizing marijuana use.2 Only the definition of “approval” as a formal or official sanction gives it the same formality and gravity as a physician’s recommendation.
Indeed, the majority’s conclusion that “recommendation” suggests that “the physician has raised the issue of marijuana use and presented it to the patient as a treatment” (maj. opn. ante, at p. 347), whereas “approval” suggests that “the patient has raised the issue of marijuana use” (ibid.), distinguishes the two terms while maintaining the same level of formality and gravity. However, the majority’s additional definition of “approval” as the expression of “a favorable opinion” (ibid.) does not.
For these reasons, as a matter of construction of the statutory language of the Compassionate Use Act, physician “approval” should have the same level of formality and gravity as “recommendation” and should be defined as the physician’s formal or official sanction of a patient’s use of marijuana as a medical treatment after the patient has raised the subject.
II.
Conversely, interpreting “approval” as a mere “favorable opinion” threatens to stretch the concept of physician approval of marijuana use beyond what the voters authorized when they approved the Compassionate Use Act.
To resolve ambiguities in a statutory initiative, “ ‘it is appropriate to consider indicia of the voters’ intent other than the language of a provision itself. [Citation.]’ [Citation.] Such indicia include the analysis and arguments contained in the official ballot pamphlet.” (Legislature v. Eu (1991) 54 Cal.3d 492, 504 [286 Cal.Rptr. 283, 816 P.2d 1309].)
The ballot pamphlet arguments for Proposition 215, pursuant to which the Compassionate Use Act was enacted, assured voters that the physician’s role in the process would avoid the risk that the initiative would create a giant loophole in the state’s drug laws because: (1) “Proposition 215 will allow seriously and terminally ill patients to legally use marijuana, if, and only if, they have the approval of a licensed physician” (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) argument in favor of Prop. 215, p. 60); (2) “Proposition 215 would also protect patients from criminal penalties for marijuana, but ONLY if they have a doctor’s recommendation for its use” (ibid.); (3) “Proposition [356215] DOES NOT permit non-medical use of marijuana” (ibid.); (4) “Proposition 215 does not allow ‘unlimited quantities of marijuana to be grown anywhere’ ” (id., rebuttal to argument against Prop. 215, p. 61); and (5) “Proposition 215 simply gives those arrested a defense in court, if they can prove they used marijuana with a doctor’s approval” (ibid.).
First, these ballot arguments by the proponents show that physician “approval” was used interchangeably with “recommendation.” One term was not considered less formal, clear, or deliberative than the other.
Second, these ballot pamphlet arguments confirm the voters’ intention that under the terms of the Compassionate Use Act, “[t]he state relies on the recommendation [or approval] of a state-licensed physician to define the line between legal and illegal marijuana use.” (Conant v. Walters (9th Cir. 2002) 309 F.3d 629, 645 (conc. opn. of Kozinski, J.).)
But a broad interpretation of “approval of a physician” to mean a “favorable opinion” threatens to blur the line between legal and illegal marijuana use by watering down the role of the gatekeeper intended to draw that line. Whereas “[t]he purpose of [Proposition 215] was to provide a narrow medical exception under medical supervision for use of marijuana as an approved therapeutic agent” (People v. Rigo (1999) 69 Cal.App.4th 409, 415 [81 Cal.Rptr.2d 624]), the right to use marijuana based merely upon a physician’s “favorable opinion” toward such a treatment suggests neither the deliberation nor the formal sanction associated with a physician’s recommendation or approval of a particular treatment for a particular patient.
III.
Finally, defining approval as the mere expression of a “favorable opinion” of marijuana use will promote litigation over innocent remarks made during the course of a patient-physician consultation, because such a definition is too vague, too loose, and too easily attributable to innocent or stray comments not intended as the final word.
For instance, in the course of a consultation, a physician may express a number of opinions to the patient, but then ultimately recommend or approve a specific treatment as the best treatment option. The fact that the doctor may have a favorable opinion of several courses of action does not make that opinion a recommendation or an official sanction of a particular treatment, which is instead the outcome of the give-and-take between doctor and patient.
The situation is somewhat analogous to a client’s consultation with a lawyer, who might express a range of opinions, more or less favorable, about [357]possible legal strategies. But it is the lawyer’s recommendation or approval of one action over another at the conclusion of the consultation that is counsel’s final word.
Yet, under the majority’s definition, the expression of an opinion during the course of a consultation can be cited as an approval, despite the physician’s different conclusion.
This will encourage litigation over whether a physician’s passing remarks, unintended or misapprehended, constituted an approval. Significantly, such passing remarks will not be likely documented in the medical record. And the physician will often not recall comments made during the consultation, but only the ultimate recommendation or approval of a particular treatment. This will leave the patient—the potential defendant—as the principal witness of the physician’s intentions, undermining the role of the very gatekeeper whom the Act established to assure legitimate marijuana use. And the fact finder— judge or jury—will not have the benefit of clear testimonial or documentary evidence from the gatekeeper—the physician—assigned the role under the Compassionate Use Act of determining whether marijuana use falls within the protection of the statute.
Such an uncertain situation does not further the statute’s objective, undermines the physician’s role of gatekeeper established by the statutory scheme, adds expense and time to the judicial determination whether the Compassionate Use Act is properly invoked, and goes well beyond what the electorate understood the measure would accomplish, i.e., a narrow exception to this state’s criminal prohibitions against marijuana possession and cultivation where a physician has formally authorized marijuana use as a medical treatment for a particular patient’s illness or ailment.
Accordingly, in the context of the Compassionate Use Act’s requirement of a physician’s recommendation or approval of the medical use of an otherwise illegal substance, the definition of “approval” should require the physician’s formal or official sanction of the patient’s use of marijuana as the appropriate medical treatment. The majority’s differing definition that the physician’s mere expression of “a favorable opinion of marijuana use as a treatment” can constitute the requisite approval (maj. opn. ante, at p. 347) lacks the formality, deliberation, or gravity of the authorization suggested by both the statutory language and the ballot materials that persuaded the electorate to approve enactment of the Act in the first place.
Further statutory references are to the Health and Safety Code.
People v. Trippet (1997) 56 Cal.App.4th 1532 [66 Cal.Rptr.2d 559], contrarily suggests that “ ‘approval’ connotes a less formal act than a ‘recommendation.’ ” (Id. at p. 1548.) However, the court in Trippet offered no authority or analysis for this conclusion, which was dictum.