I concur in the judgment on the sole ground that respondents are not “primary caregivers” within the meaning of Health and Safety Code section 11362.5.
I think it unnecessary in this case to determine whether the sale and furnishing of marijuana remain absolutely prohibited after the enactment of Proposition 215.
By enacting that proposition, the voters of this state sought “[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 cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.” (Health & Saf. Code, § 11362.5, subd. (b)(1)(A).) The “right to obtain” marijuana is, of course, meaningless if it cannot legally be satisfied.
The majority does not say qualified users may not obtain marijuana but it does say no one has the right to sell or furnish it to them, which is the functional equivalent. Obtaining marijuana from another may, however, be the only practical way to secure it for many seriously ill Californians who have a right to obtain and use the substance, because they and their primary caregivers may as a practical matter be unable to cultivate the plant or await harvest. Moreover, a person cannot even cultivate marijuana without first obtaining seeds, and the majority does not suggest how this may legally be accomplished.
At oral argument, the Attorney General took the position that persons unable to cultivate may be impliedly authorized under Proposition 215 to obtain marijuana from one who sells or furnish it, and immune from criminal prosecution, but that the sale or furnishing is not immune and may be prosecuted under section 11360 even though the buyer cannot be criminally charged. The Attorney General maintains, in other words, that a qualified patient or bona fide primary caregiver genuinely unable to cultivate marijuana can obtain the substance only by participating in what would remain an illegal street transaction.
Though the majority does not endorse this view, its opinion provides colorable support. I am not on this record prepared to resolve the knotty problem of whether and, if so, how a qualified patient or primary caregiver *1402unable to cultivate marijuana can otherwise legally obtain it. As we suggested in People v. Trippet (1997) 56 Cal.App.4th 1532 [66 Cal.Rptr.2d 559], “practical realities” dictate that there be some leeway in applying the statutory prohibitions pertaining to marijuana where strict enforcement would defeat or obstruct the purpose of Proposition 215. (56 Cal.App.4th at p. 1550.) Local governments in California are now exploring ways in which to responsibly implement the new law (as, for example, through licensing ordinances) so as to relieve those medically in need of marijuana but unable to cultivate it from the need to do so. I do not think we should make gratuitous blanket determinations which might prematurely interfere with those efforts.
Respondents’ petitions for review by the Supreme Court were denied February 25, 1998.
Presiding Justice of the Court of Appeal, First District, Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.