Tag Archives: Medical Marijuana

People v Chakos (2007 – Fourth Appellate District)

Full Circle Cannabis Consultations’ Court Case Analysis of  People v Chakos (2007 – Fourth Appellate District) by Jason Browne



Summary

“Nowhere in this record do we find any substantial evidence that the arresting officer had any expertise in differentiating citizens who possess (cannabis) lawfully for their own consumption, as distinct from possessing (it) unlawfully with intent to sell.”

“As to drugs that may be (obtained legally), the officer may have experience with unlawful sales, but there is no reason to believe that he will have any substantial experience with the numerous citizens who lawfully (obtain) the drugs for their own use as medicine for illness.”

In the absence of evidence of some circumstances not to be expected in connection with a patient lawfully using the drugs as medicine, an officers’ opinion that possession of lawfully (obtained) drugs is for purposes of sale is worthy of little or no weight, and should not constitute substantial evidence sufficient to sustain the conviction.”

“Mere and undefined ‘contact’ with undefined ‘investigations’ is manifestly not substantial evidence that an officer is in any way familiar with the patterns of individuals who, under State law, may lawfully purchase (cannabis) pursuant to a physician’s (authorization) under the C.U.A., nor does it show any expertise in the ability to distinguish lawful from unlawful possession (of cannabis).”
Read entire Court opinion here


Jason Browne’s Analysis

Here, the court found that police testimony evinced a lack of understanding of the patterns of use of (cannabis) by qualified patients, which rendered the police officer unqualified to testify as an expert and required that his testimony be stricken.


Analysis for Attorneys

Basically, police testimony as “experts” in medical cannabis cases should be challenged under Voi-Dire. In order to meet the challenge, it’s important to ascertain the officer’s actual experiences with differentiating between lawful patterns of possession (etc.) from unlawful patterns of holding for (unlawful purposes). If police cannot produce notes or course materials, if their instructors are other law enforcement officers, if they can’t provide any peer-reviewed scientific studies, cannot provide the names of physicians who authorize cannabis uses or patients who use cannabis that they are familiar with, etc…, then you should rightly challenge their status as an “expert”. It’ also helpful to cite either of the official Position Papers on medical cannabis, from the website of the California Narcotics Officers Association (C.N.O.A.), because they provide almost all of the training materials and instructors for law enforcement officers in California, and those Papers clearly show that officers are trained to disbelieve the existence of medical cannabis and are therefore incapable of differentiating the differences between lawful and unlawful uses, so long as they are relying on their training. In terms of challenging their experience, asking questions that reveal the types of experiences they have had should be sufficient (they are invariably the same…a combination of unnamed “patients” who have been arrested and/or imprisoned, jailhouse informants, reading high-times magazine and countless raids or sting operations where the object was to target only unlawful activities. In the end, they will rely on the “totality of circumstances” argument, so if you can pinpoint and challenge all of the individual aspects and get it all into the record, you have laid the groundwork for challenging the totality of circumstances argument.



People v. Urziceanu (2005 – Third Appellate District)

Full Circle Cannabis Consultations’ Court Case Analysis of  People v. Urziceanu (2005) by Jason Browne



Summary

“Thus, the legislature…exempted those (qualified individuals) who collectively or cooperatively cultivate (cannabis)…from criminal sanctions for (possession, cultivation), possession for sale, transportation or furnishing (cannabis), maintaining a location for unlawfully selling, giving away or using a controlled substance, managing a location for the storage (of cannabis), distribution of any controlled substance for sale and the laws declaring use of property for these purposes (to be ) a nuisance.”

Also, “a primary caregiver (may) receive compensation for actual expenses and reasonable compensation for services rendered to (a) qualified patient, i.e. conduct that would constitute sale under other circumstances.”

“Further, the M.M.P.A. sets forth the new affirmative defense allowing collective cultivation of (cannabis), expands to Penal (Code) sections not identified by the C.U.A. and contains no savings clause. These facts lead us to the conclusion that this law must also be retroactively applied.”

Regarding conspiracy charges: “…the relevant question (for the jury to decide) is what the defendant thought the laws relating to the medical use of (cannabis) required or allowed. And they must decide this question in the context of defendant’s claim that (he) did not have the specific intent to violate the law and was, for that reason, not guilty of participating in criminal conspiracy.” “If the jury believed that defendant had a good faith belief, based on the C.U.A. (or the M.M.P.A.) that (his) actions were legal, this would negate the specific intent to violate the law required for a conspiracy conviction.”
Read entire Court opinion here


Jason Browne’s Analysis

This case addresses a few issues, including the new affirmative defenses available under the M.M.P.A. regarding collectives and cooperatives, primary caregiver compensation, the qualified immunity of individuals under the C.U.A. and M.M.P.A. and the defense against conspiracy charges.



Water Usage Overview Required…

Pot-Background1.jpgA recent study from the California Department of Fish and Wildlife has the Media pinning the drought on cannabis cultivation, but does the math add up?


Jason Browne of Full Circle Cannabis Consultations has a few talking points regarding water usage for cannabis cultivation.


jbrowne0785I would like for us all to put an entirely different spin on this issue of water usage and cannabis cultivation, as posited in a new study from the California Department of Fish and Wildlife. Fortunately, an article in the most recent issue of High Times has done a lot of the work for us. They have some great comparisons of the water usage of different plants, including cannabis, which, not surprisingly, uses far less water than most other crops. Now we can take their information, and apply our own economic comparisons. We know how much water it takes to produce a pound of almonds, alfalfa, plums, rice, etc. — and how much to produce a pound of cannabis — now let’s compare the value of a pound of cannabis, compared to each of the other crops, and then relate that back to our water usage. They opened Pandora’s box, and we should take advantage of the Truth of the matter. The truth is that cannabis produces far greater wealth, jobs and potential tax revenues, per gallon of water used, than any other agricultural commodity in California. Let’s get that on the front pages!

These are the talking points I think we should work on, and back them up with data and links:

1) All “marijuana” plants being cultivated on public property, whether by foreign drug cartels or by American citizens, are unlawful and have no place in any conversation about regulated cannabis cultivation. Such operations are beyond the scope of any regulations, they are under the exclusive purview of law enforcement and they will continue to be eradicated every year, regardless of medical and recreational cannabis laws. Adding additional penalties against persons whose only incentive to cultivate “marijuana” is for financial gain, will not deter such illegal cultivation. However, applying those harsh penalties against qualified individuals for growing their own medicine, in accordance with state laws, and then intentionally misrepresenting that legal patient gardens and illegal marijuana operations are the same thing, is unconscionable.

2) Cannabis cultivation is legal in California, when done in accordance with the C.U.A. and M.M.P.A. If we are truly having a discussion about water conservation and usage during times of drought, then we insist that cannabis plants be afforded the same scrutiny as other legal uses of water. If a municipality or agency wants to restrict water usage, it properly does so according to land zoning categories and other factors such as restricting days and times of water use. This attempt to indirectly circumvent the rights of patients to cultivate their own medical cannabis has been an ongoing problem for 18 years in California, and blaming cannabis cultivation for the drought is a new low for the advocates of reefer madness.

3) Our property rights in California (and all western states) actually begin with water rights. When water was appropriated for agricultural purposes, it formed the basis of title or rights to other land uses in California. So property owners either have vested rights to use water, or they lease those rights out, to the government, or legal tenants. Water use laws in the western states are very complex, and are not something that cannabis prohibitionists can really hope to change, just because they don’t like people growing the herb. Notwithstanding all this bantering by certain regulatory agencies, if they attempt to deprive landowners of legitimate water rights, based merely on the presence of cannabis plants, they will open up yet another Pandora’s box… and they will ultimately lose that argument in court.

4) The United States Supreme Court has, on more than one occasion, ruled that all cannabis cultivation and distribution are matters of Interstate Commerce (OCBC, Raich, Rosenthal), and as such, all medical cannabis production in California must be considered to be “Agriculture”, as that term applies to California Zoning Codes. The main reason that cities and counties are getting away with their abatement schemes, is precisely because they are claiming (with straight faces) that “cannabis is not agriculture, because it cannot be grown commercially.” If the Supreme Court of the United States says that all cannabis cultivation is a form of commerce, in order for the Federal Government to even claim jurisdiction on this subject within the States, then it most certainly can be grown commercially, and local governments should not be allowed to continue enforcing local bans and nuisance abatement schemes under color of law. The personal cultivation of cannabis, and the commercial cultivation of cannabis, are properly regulated according to long-standing land use laws, under local zoning categories. The commercial cultivation of cannabis, if undertaken on any agriculturally or industrially zoned parcels, is exempt from common nuisance abatement, under existing California Zoning Codes (people living in or near those zones, and even local municipalities, have no legal right to seek an abatement or to file a nuisance complaint against persons, specifically for engaging in activities that are allowed in those zones). And residential properties already allow for the personal cultivation of various kinds of plants, including food crops, in accordance with California Zoning Codes.

I hope this proves useful. I’m already on this bandwagon. Check out the High Times article, and if you like this idea, please share this information on your social media accounts.

Jason Browne
Full Circle Cannabis Consultations
http://fullcirclecannabis.com



 

People v. Frazier (2005 – Third Appellate District)

Full Circle Cannabis Consultations’ Court Case Analysis of  People v. Frazier (2005 – Third Appellate District) by Jason Browne



Summary

“There is no constitutional imperative that a state must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. The (C.U.A.) defense is one such defense…the Mower court concluded the (C.U.A.) defense negates the unlawful element of possessing or cultivating (cannabis). As a result, the defendant has the burden of proof to raise a reasonable doubt as to the facts underlying this defense (i.e. a reasonable doubt as to the guilt of unlawful possession, cultivation and transportation (etc…) of (cannabis).”

“To the extent that the M.M.P.A. sets forth new affirmative defenses, expands the defense identified by the C.U.A., and contains no savings clause, that law must be retroactively applied.”


Jason Browne’s Analysis

Mirroring the language in Mower and the opinions of our state Attorney General’s Office, this court held that the C.U.A. and the M.M.P.A. have abrogated various criminal codes regarding “marijuana” offenses.


Analysis for Attorneys

It’s worth noting that many legal minds seem to miss this point. While it’s true that this case abrogated several previous rulings, of greater significance is the fact that the high courts repeatedly state that the C.U.A. and M.M.P.A. have abrogated the laws against “marijuana” offenses, and that qualified individuals are exempt from being charged with these offenses, so long as they raise a reasonable doubt in establishing their status. This means that medical cannabis defendants shouldn’t accept “business as usual” from the prosecutors and the superior courts, and should more aggressively challenge the proceedings against them at every stage, including filing Demurs, filing motions to dismiss at Arraignments and demanding Mower hearings in order to request dismissal during the preliminary hearing phase.



The City of Garden Grove v. Superior Court of Orange County and Felix Kha (2007 – Fourth Appellate District)

Full Circle Cannabis Consultations’ Court Case Analysis of  The City of Garden Grove v. Superior Court of Orange County and Felix Kha (2007 – Fourth Appellate District) by Jason Browne



Summary

“But we are convinced by the Attorney General’s argument that governmental subdivisions of the state are bound by the state’s laws in this instance and must return materials the state considers legally possessed. We are persuaded due process will allow nothing less.”

“(The) role (that a) police department has with respect to seized property…is primarily one of custodian for the court. Even as to property not yet offered or received in evidence, we think that judicial control still exists. We regard property so taken and so held as being as much held on behalf of the court in which the contemplated prosecution will be instituted as is property taken and held under a warrant. The seizing officer claims no right in or to the property, or in or to its possession, save and accept as the court may find use for it. He must respond, as must any custodian, to the orders of the court for which he acted.”

“…the police may not destroy or otherwise dispose of the seized drugs without prior judicial approval (See California Health and Safety Code § 11473.5(a)). And if the court determines the defendant was in lawful possession of the drugs, then they may not be destroyed at all. It is up to the court to decide whether destruction is appropriate in a given case; the police role is limited.”

“No one would accuse (a municipality) of willfully encouraging the violation of federal law, were it merely to comply with (a) trial court’s order (to return cannabis). Moreover, in light of the federal immunity statute (21 U.S.C. §885 (d)), it seems rather unlikely that any officer involved in carrying out (a) trial court’s order (to return cannabis) would be subject to liability for handling…(cannabis).”

“Nothing in the C.U.A. or M.M.P.A. appears to require a qualified patient to provide evidence regarding the source of his or her (cannabis).”

“Since the M.M.P.A. effectively authorizes the conduct described in Vehicle Code § 23222(b), when…the conduct at issue is the transportation of a small amount of medical (cannabis) for personal use – (such) conduct (is) authorized by law.”

“A (municipality) cannot do indirectly what it could not do directly. That is what it seeks to do in destroying (cannabis) when it cannot punish (the qualified individuals) under the criminal law for possessing it.”

“…section 11473.5 (California Health and Safety Code) cannot be read as requiring the destruction of a controlled substance based solely on the fact that possession of the substance is prohibited under federal law. Unless the substance possessed is also prohibited under state law, the state has no authority to invoke the sanction of destruction set forth in the statute.”

“The (municipality)…(failed) to recognize (that) the police cannot retain a person’s property without running afoul of basic constitutional considerations. Particularly, the Fourteenth Amendment…provides that no state shall deprive any person of life, liberty or property without due process of law.”
Read entire Court opinion here


Jason Browne’s Analysis

Basically, once cannabis is in the hands of a qualified patient, it’s legally possessed. And obtaining it from otherwise illegal sources does not affect a qualified individual’s status under the C.U.A. and M.M.P.A., nor does it negate their defense claims.