Journal of the California Cannabis Research Medical
Landmark Cases in the Implementation
of California's Medical Marijuana Law
by Omar Figueroa and Pebbles Trippit
While we wait for the U.S. Supreme Court to rule in the Raich-Monson case,
California patients and lawyers are watching the courts closely, working
together, sharing case law and insights, and interpreting and assessing Prop
215 rulings and resultant protections for patients, doctors and caregivers
under state law.
Listed here are medical marijuana cases in which the courts defined elements
of the defense and decided procedures and perspectives intrinsic to the law
(Health and Safety Code sections 11362.5 and 11362.7). In each case, the court
ruled on at least one new question concerning how a class of medical marijuana
cases will be decided. The appellate court rulings are highlighted and key
Not all these landmark cases represent “wins” for the medical marijuana movement,
but the two major cases do: People v Mower (on patients’ rights) and Conant
v Walters (on doctors’ rights). Both Mower in state court in August 2002 and
Conant in federal court in December 2002 were reasonable rulings, favorable
to patients and physicians based on classic constitutional principles: privacy,
equality and freedom of speech.
There are still issues that remain to be determined by appellate courts, such
as proper jury instructions for Prop 215 caregivers and how to apply the “collective,
cooperative cultivation” clause of Senate Bill 420.
• People v Myron Mower (August 2002) California Supreme
Key ruling: on equality of cannabis patients with prescription
In April ’98, in Tuolomne County Superior Court, Myron Mower —a severe diabetic,
legally blind— was tried and convicted of felony cultivation. Sheriff’s deputies,
after raiding his house and ripping out 28 of 31 plants (Tuolomne having decided
on a three-plant limit), had found Mower in a hospital, hooked up to a morphine
drip, unable to hold down food. “My health was all in that garden,” Mower told
them. “You guys don’t know what you’ve done to me.” Without a lawyer, Mower “confessed” that
the plants were for himself and two other sick people —resulting in his conviction
and the imposition of a $1,000 fine, plus five years’ probation.
At Mower’s trial the prosecution only had to show “by a preponderance of the
evidence” that his medical-use claim was false. This standard made California
patients accused of marijuana violations less than equal under the law, since
all other comparable crimes claiming innocence must be proved beyond a reasonable
doubt. One of us (Trippet, joined by Tod Mikuriya, MD), filed an amicus brief
on the burden-of-proof issue, and attorney Gerald Uelmen raised it in his appeal.
In August 2002, the state Supreme Court reversed Mower’s conviction on the
grounds that the trial court had incorrectly instructed the jury on the burden-of-proof
question. Although Prop 215 doesn’t bar arrests, it now entitles those who
claim “medical use” to file a pre-prelim motion to dismiss. The Mower court
opened the door for early dismissal of charges for medical users wrongly arrested
or prosecuted by allowing an additional motion to dismiss prior to or at prelim,
similar to a post prelim 995. If the case goes to trial, the burden of proof
beyond a reasonable doubt is on the government.
“The possession and cultivation of marijuana is
no more criminal... than the possession and acquisition of any prescription
drug with a phys-ician’s prescription.”
Chief Justice Ronald George wrote, “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.”
And: “Had the jury properly been instructed that defendant was required merely
to raise a reasonable doubt about his purposes instead of proving such purposes
by a preponderance of the evidence... the jury might have entertained a reasonable
doubt in defendant’s favor.”
This prosecutorial advantage for conviction, facilitated by trial court judges,
prevailed for six years after Prop 215 passed. It was created by CALJIC, an
advisory board of judges based in Los Angeles, which issued the erroneous WHAT
MEANS? Prop 215 preponderance burden of proof as an advisory pronouncement
on “standard jury instructions” for criminal trials in California, as though
it were law. The preponderance standard was then adopted by judges in a majority
of Prop 215 trials. As a result, hundreds of patient-defendants were convicted
at trial or accepted plea bargains to avoid trials that would not have occurred
if prosecutors had to prove a patient’s guilt beyond a reasonable doubt, as
with people who use prescription medicines.
The burden of proof issue is important because it goes toward whether or not
the conviction is valid.
It took the California Supreme Court to end this unfair process. Moderate Chief
Justice Ronald George wrote what amounts to a marijuana equality opinion (“no
more criminal than” prescription drug users). The perfect remedy for discrimination
• Conant v Walters (December 2002) 9th Circuit US Court of Appeals
1) First Amendment speech protections apply to doctor-patient relationship
without regard to conflicting federal law.
2) Physicians may discuss marijuana use with their patients, and authorize
3) Government is enjoined from investigating doctors without “good cause.”
On December 30, 1996, Drug Czar Barry McCaffrey (John Walters’ predecessor)
and other federal officials held a press conference at which they threatened
to prosecute and punish doctors who approve marijuana use by their
patients by revoking their prescription-writing privileges.
On behalf of AIDS specialist Dr. Marcus Conant and other San Francisco Bay
Area doctors and patients, the American Civil Liberties Union in January, 1997,
brought a civil suit against Drug Czar McCaffrey et al to prevent the threats
from being carried out. The suit charged that the federal government had “intruded
into the physician-patient relationship, an area traditionally protected from
In April 1997, federal Judge Fern Smith granted a preliminary injunction “limiting
the government’s ability to prosecute physicians, revoke their prescription
licenses, or bar their participation in Medicare and Medicaid because they
recommend medical use of marijuana.”
“The First Amendment allows physicians to discuss
and advocate medical marijuana...”
In a 43-page opinion Smith wrote, “The First Amendment allows physicians
to discuss and advocate medical marijuana, even though use of marijuana
itself is illegal... The government’s fear that frank dialog between
physicians and patients about medical marijuana might foster use does
not justify infringing First Amendment freedoms.”
A permanent injunction was issued in September, 2000, by federal district Judge
William Alsup. It was challenged by the Bush Administration and upheld by the
9th Circuit US Court of Appeal in December 2002. The U.S. Supreme Court chose
not to review the 9th Circuit ruling, so the Conant injunction will remain
the law of the land.
Under the First Amendment, MDs have the right to discuss marijuana with a patient
and to recommend its use. Judge Alsup wrote: “The government is permanently
enjoined from 1) revoking a... physician’s DEA registration merely because
the doctor recommends medical marijuana to a patient based on a sincere medical
judgment and from 2) initiating any investigation solely on that ground.”
• People v Baez/Santa Clara (April 2000). California Court of
Appeal, 6th Appellate District.
Key ruling: Discovery of discriminatory prosecution was granted.
In March ’98 San Jose police seized patients’ records from the Santa Clara
County Cannabis Center (one day after a sympathetic police chief was replaced
by a drug warrior). Police contacted doctors listed in the files to discuss
their patients’ cases. Co-founder Peter Baez was indicted by a grand jury on
five felony sales charges (failing to verify some doctors’ recommendations)
and two grand-theft charges. Baez claimed he was targeted for his involvement
in a cannabis dispensary, amounting to a discriminatory prosecution. His attorneys
requested internal district attorney memos about the decision to file charges
against him. The DA refused to provide.
In May 2000 the DA offered Baez a lenient deal ($100 fine for maintaining a
place for marijuana sales) after an appeals court ruled that 1) he had made
a credible showing of discriminatory prosecution and 2) the trial court did
not abuse its discretion in granting defendant’s motion to discover the “district
attorney’s unconstitutionally discriminatory prosecution.”
• People v Bianco (October 2001). California Court
of Appeal, 3d Appellate District.
Key ruling: Probation condition was properly imposed after
guilty plea for cultivation.
Defendant Stephen Richard Bianco was a longtime marijuana user convicted of
cultivation in Shasta County. He did not possess a valid doctor’s approval
and pled guilty. The trial court prohibited him from using marijuana while
An appeals court held that the trial court had discretion to impose conditions
of probation based on conviction, prohibiting defendant from using or possessing
marijuana without providing an exception for medical use “in the absence of
specific language prohibiting the imposition of the type of probation condition
at issue here.”
• People v Fisher (March 2002). California Court
of Appeal, 3d Appellate District.
Key ruling: Police cannot call off a warranted search upon
showing of medical documentation.
After marijuana plants were spotted during a flyover of Stephen Ray Fisher’s
Siskiyou County property in July 1999, the Sheriff obtained a warrant to search
Fisher’s house. Fisher showed them his doctor’s approval to cultivate. The
officers continued the search and found more marijuana plus a cane sword and
ammunition, which Fisher, previously convicted of a felony, was not allowed
to own. At trial he moved to suppress the evidence on grounds that the search
should have been called off (for lack of “probable cause”) once he showed his
documentation. The court denied the motion and a jury found Fisher guilty of
unlawful possession of the sword and ammo (while acquitting him on the marijuana
Fisher’s argument on appeal: “Officers, when confronted with defendant’s claim
that his possession of marijuana was legally justified, should have secured
the house, investigated defendant’s claim and returned to the court for further
instruction... Once officers were shown the certificate, probable cause for
the search no longer existed.”
The appeals court disagreed, ruling that once deputies have a warrant in hand,
there is no discretion to abandon it if the situation is found to be a protected
215 garden. A search warrant is a court order, “not an invitation that officers
can choose to accept or reject or ignore; it is an order of the court based
on probable cause.”
• People v Galambos (Dec 2002). California Court
of Appeal, 3d Appellate District.
1st key ruling: Patients and caregivers’ Prop 215 protections
are not extended to suppliers.
“You can’t in essence legalize milk and outlaw
the cow.” —Tony Serra
In July, 1997, Robert Galambos, 32, was arrested in Calaveras
County and charged by the DA with cultivation of 382 marijuana plants
and possession for sale. Galambos used marijuana to treat headaches
caused by a fractured skull, but had not gotten a doctor’s approval
until after his arrest. At trial in March ’99, Tony Serra argued that
Galambos was growing for the Oakland Cannabis Buyers Co-op, which he
believed was lawful under Prop 215. (“You can’t in essence legalize
milk and outlaw the cow,” said Serra.) The jury found Galambos guilty
on the cultivation charge and deadlocked on possession-for-sale. In
exchange for the DA not retrying him on the sales charge, Galambos
pled guilty to possession of more than an ounce. In June ’99 he was
sentenced to nine months in jail, five years probation.
The 3d Appellate District court upheld Galambos’s conviction. Prop 215’s limited
immunity protecting a patient or caregiver from prosecution “was not extended
to cover cultivation of marijuana for a cooperative” (supplier).
In a strict interpretation of 215’s “primary caregiver” clause, there is no
category called “provider” to a cannabis club or dispensary. The question is:
Can a provider for a club be considered a caregiver under law? A piece of paper
authorizing one to be a caregiver/provider for a club does not, in and of itself,
make it so.
SB420 codified “collective, cooperative cultivation
pro-jects” as the legal model to follow.
SB420 codified “collective, cooperative cultivation projects” as the
legal model to follow.
Under SB 420, cooperatives and collectives are not considered the same as clubs
and dispensaries. Since Galambos occurred pre-SB420, it lacks the SB420 perspective,
which encourages “collective cooperative cultivation projects” as viable patient/caregiver
It can be argued that a co-op or collective binds each patient to the caregiver,
based on actual caregiving, not buying and selling. Providers to clubs with
hundreds, even thousands of patients unknown to the provider, show a different
level of caregiving involvement than a caregiver, one on one, with a patient.
This distinction between clubs/dispensaries (Peron model) and co-ops/collectives
(SB420 and WAMM models) is significant since collectives are codified as legal
in the text of SB420 (and serve as the example in Santa Cruz v Ashcroft) but
clubs were ruled illegal by the US Supreme Court in US v Oakland Cannabis Buyers
Cooperative (2001). The OCBC court unanimously ruled that clubs have no third
party medical necessity exemption to the Controlled Substances Act, but did
not rule on California’s Prop 215, since clubs’ interests, not patients’ rights,
was at issue.
Second key ruling: Medical necessity defense was denied as having
requirements inconsistent with Prop 215.
A necessity defense requires an emergency situation (such as dying or going
blind without cannabis) and proof of illness based on multiple criteria, whereas
Prop 215 merely requires a doctor’s authorization without further proof of
illness and without it having to rise to the level of emergency.
Third key ruling: Hearing to determine defenses is procedurally appropriate.
“The trial court did not abuse its discretion when it held a preliminary (402)
hearing to determine the admissibility of defendant’s proposed defenses.”
• People v Fishbain/White (April 2003), California
Court of Appeal, 1st Appellate District.
1)CHP officer “unreasonably and unlawfully” stopped and searched defendant’s
vehicle, violating his 4th and 14th Amendment rights.
2) A single license plate and hanging air-freshener are not traffic violations
and not the basis for a stop.
3)The appeals court ruled the trial court erred in denying defendants’ motion
to suppress and reversed.
4)Pretext stops are unconstitutional (ending hippie profiling, as with racial
On January 31, 1999, Jason Fishbain, Chris White and Veronica Quatse were traveling
on Highway 101 in Humboldt County, taking medicinal marijuana to a patient
in the Bay Area, when they were stopped on the basis of having a single Arizona
license plate (which is legal in Arizona) and a hanging air-freshener. The
officer who made the stop cruised behind, in front of and alongside Fishbain
and company for about five miles. His investigation following the stop discovered
five pounds of marijuana and thousands of dollars in cash. Defendants were
detained and arrested and their medicine confiscated.
Fishbain’s trial resulted in a hung jury, but White was convicted of transportation
and sentenced to four years prison. The DA refiled against Fishbain. The jury
hung again, and the DA refiled again. Fishbain then pled to a lesser charge
(“maintaining a vehicle”), preserving his Prop 215 rights and appeal rights.
Fishbain’s appeal claimed he had been stopped on a pretext —that the plate
and air-freshener were not traffic violations. The actual reason was the stereotypically
hippie appearance of his dreadlocked passengers (also known as “DWH, “ “driving
while hip,” or “driving with hair”).
Hippie profiling, like racial profiling, was found
to be unconstitutional.
With the Fishbain decision the court ruled that there was no legal
justification for the stop. Hippie profiling, like racial profiling,
was found to be unconstitutional.
Fishbain has filed a civil rights lawsuit against the CHP officer who made
the bad stop. It came out in the answer from the defense that the same CHP
officer had made 90 similar stops for air-fresheners over the course of his
career and had never been challenged. Fishbain has created a website:
• People v Jones (Sept 2003). California Court of
Appeals, 3d Appellate District.
A physician’s approval is different than a recommendation, though both are
A patient’s testimony regarding the approval need not be verified by the doctor.
William Jones was charged with cultivation in Sacramento County. At a pretrial
hearing he testified that he’d asked his physician about treating migraine
headaches with marijuana and been told, “It might help, go ahead.” The doctor,
Walter Morgan, testified that he didn’t recall giving verbal approval, but
didn’t deny it unequivocally. Dr. Morgan also admitted being afraid of legal
repercussions had he issued an approval.
The trial court would not allow a Prop 215 defense because there was “nothing
to indicate that the doctor approved...”
The appeals court, citing Mower, concluded that Jones’ testimony at the pretrial
hearing was sufficient to raise a reasonable doubt that he had a doctor’s approval
and reversed his conviction. “A physician could approve of a patient’s suggested
use of marijuana without ever recommending its use.”
• People v Tilehkooh (Dec 2003), California Court
of Appeal, 3d Appellate District.
1st key ruling: Probation of a bona fide Prop 215 patient cannot
Darius Tilehkooh informed his Mono County probation officer in February 2000
that he would test positive for marijuana but that he had a written recommendation
from Marian Fry, MD. He did test positive, the P.O. moved to revoke him and
conducted an apartment search that turned up less than an ounce of marijuana.
Another search in March reaped another small quantity. At a consolidated trial,
the same evidence supported the possession charge and the probation violation.
Tilehkooh was found guilty of misdemeanor marijuana possession and his probation
was revoked. He appealed his conviction and probation revocation. The DA argued
that Prop 215 (H&S 11362.5) is not a defense to a revocation.
The appeals court ruled that the probationary status of a qualified patient
cannot be revoked, based on clear language in the statute that those qualified
to use marijuana for medical purposes “shall not be subject to prosecution
“A rehabilitative purpose is not served when the probation condition proscribes
the lawful use of marijuana for medical purposes any more than it is served by
(proscribing) the lawful use of a prescription drug.”
2d key ruling: Medical-use defense cannot be denied.
The trial court ruled that Prop 215 (H&S 11362.5) did not apply because
Tilehkooh could not qualify for a medical necessity defense. The appeals court
disagreed “because that defense is not the measure of the right to obtain and
use marijuana for medical purposes.”
Tilehkooh’s underlying possession conviction was reversed by the appeals court,
which determined that in probation revocation hearings, based on Tilehkooh’s
legal possession, his due process rights were violated by the trial court’s
refusal to allow him to present a medical-use defense.
3d key ruling : Serious illness does not have to be proven to the
In denying Tilehkooh a medical-use defense the trial court deemed that he was
not “seriously ill” as required by Section 11362.5. The appeals court ruled, “Section
11362.5 applies to any illness for which marijuana provides relief.” To meet
the requirements, a defendant need only show that she or he is a patient or
caregiver, that the marijuana cultivated or possessed was “for the personal
medical purposes of a patient” on the “recommendation or approval of a physician.”
Senate Bill 420 (January 2004) Codified as H&S
11362.7. (ID card program funding and implementation delayed; now set
to begin summer 2005.)
1) Voluntary state ID card program protects Proposition 215 patients.
2) Grants statutory exemptions to specified marijuana offenses.
3) Defines exemptions based on legal rights to possess/cultivate/obtain/use/transport/deliver
marijuana for medical purposes.
4) “Collective, cooperative cultivation” is the legal model to follow.
5) Physician and/or county can approve additional quantity of medicine above
current threshold of 6 mature/+12 immature plants/+8 ounces.
6) Attorney General can raise limits allowed above current threshold.
• People v Carolyn Konow (April 2004). California Supreme Court
(from 4th Appellate District).
Key ruling: A judge can dismiss a medical marijuana case “in
the interests of justice.”
In 1998 Carolyn Ko-now and her son, Steve Rohr, opened a dispensary, the California
Alternative Medicinal Center, in San Diego. Undercover police were unable to
buy marijuana from the CAMC until they hired a former employee, who made three
unauthorized purchases (totaling an ounce). Konow, Rohr, and two employees
were arrested and charged with unlawful possession and sales.
The charges were initially dismissed by San Diego Superior court Judge William
Mudd, who said Konow and her staff had done everything possible to comply with
Prop 215, but ambiguities in the law had put them in an “untenable position. “ Mudd
suggested that prosecutors should clarify the law in the civil courts.
Supervising Judge Howard Shore then ruled that Mudd had abused his discretion
in dismissing charges and ordered him to hold a preliminary hearing to evaluate
the evidence. Shore said that marijuana sales are illegal under Prop. 215,
and he faulted Konow for not having cleared her plans with the District Attorney.
(She had notified the city attorney and Attorney General.)
Mudd deemed the evidence sufficient and ordered a trial, telling Konow’s lawyers
that he’d been directed by Shore not to dismiss the charges.
In January 2003 another judge, Michael Wellington, ruled that Mudd did indeed
have the right to dismiss the case -and dismissed it himself.
The prosecution appealed and Supreme Court Chief Justice Ronald George, in
his 2d positive medical marijuana ruling in two years, wrote that Wellington
correctly concluded that Konow et al had been denied a legal right.
“The magistrate denied defendants a substantial right by erroneously and prejudicially
failing to consider whether to dismiss the complaint in furtherance of justice
under PC1385... the superior court judge who ordered reinstatement of the complaint
had no authority to preclude the magistrate from ordering dismissal... As the
magistrate had clearly indicated a desire to order dismissal of the complaint,
his error was prejudicial.”
Since a 1385 motion to dismiss may be made only by a judge sua sponte or by
a prosecutor, the defense can only “invite” the court to dismiss under 1385.
• Bearman v Superior Court of Los Angeles (May 2004). California
Court of Appeal, 2d District.
1) Doctors can’t be compelled to disclose patients’ medical records.
2) Medical Board failed to show “good cause.”
3) Subpoena was over-broad.
4) Patient did not voluntarily waive his right of privacy.
David Bearman, MD, 63, was one of very few Southern California doctors willing
to approve cannabis use by patients following the passage of Prop 215.
In April 2001 Bearman’s patient, N., a 21-year old migraine sufferer (who also
had been diagnosed with depression and ADD), showed his letter of approval
to Forest Ranger James Just, who sent a copy of it to the medical board with
questions about its legality and Bearman’s ethics.
The Board —which investigates about 2,000 of the 12,000 complaints it receives
annually— decided to determine whether Bearman had been guilty of “gross negligence...
incompetence, or... dishonesty or corruption” in his treatment of N.
N. would not authorize the release of the records and Bearman refused to provide
them. The Board then subpoenaed the records. Bearman refused to comply. A Superior
Court judge in L.A. upheld the subpoena and gave Bearman a month to appeal.
The appeals court from the 2d Appellate District issued an interim ruling to
quash the subpoena unless the Medical Board submitted another brief, which
it did, followed by oral arguments.
In April ’04 the appeals court ordered the trial court to vacate the petition
compelling the doctor’s compliance and issue a new order denying the petition.
The court concluded that the medical board’s evidence was insufficient to show ‘good
cause’ to invade the patient’s right of privacy in his medical records.
“When the Medical Board seeks judicial enforcement of a subpoena for a physician’s
medical records, it cannot delve into an area of reasonably expected privacy
simply because it wants assurance the law is not violated or a doctor is not
negligent in treatment of his or her patient. Instead, the Medical Board must
demonstrate through competent evidence that the particular records it seeks are
relevant and material to its inquiry... This requirement is founded in the patient’s
right of privacy guaranteed by Article I of the California constitution, which
the physician may, and in some cases must, assert on behalf of the patient...
“By passing this law, the voters intended to facilitate the medical use of marijuana
for the seriously ill. This purpose would ...be defeated if, as a condition of
exercising the right granted... a person waived his or her right of privacy simply
by producing a physician’s written recommendation. Interpreting section 11362.5
as necessitating the waiver of a fundamental right in order to enjoy its protection
would, we believe, hinder rather than facilitate the voters’ intent.”
• People v Spark (Aug 2004). California Court of Appeal, 5th
1st key ruling: Proof that Prop 215 patients are seriously ill is not
a jury issue.
In October 2001 Kern County sheriff’s deputies confiscated three marijuana
plants from the yard behind Zelma Spark’s trailer home. It belonged to her
son, Noel Spark, who had an approval from William Eidelman, MD, to use cannabis
to treat back pain. San Bernardino police launched an undercover investigation
of Eidelman. Two detectives obtained recommendations without even feigning
medical problems. Spark sought and got an approval from David Bearman, MD.
Both doctors would testify that Spark was a bona fide patient.
The trial judge instructed the jury that a Prop 215 defense is available only
to “seriously ill” defendants. The appeals court ruled that legitimate patients
do not have to prove to the jury that they are “seriously ill” to qualify as
patients deserving of protection. This assures that doctors -not police or
jurors- are the gatekeepers of medical cannabis access, as it should be.
2d key ruling: A legitimate patient’s probation cannot be revoked
merely because federal law does not agree.
The court has no discretion to disregard Prop 215 just because it conflicts
with federal law. Federal law has no independent jurisdiction. One cannot prosecute
federal crimes in state court.
• People v Wright (August 2004). California Court
of Appeal, 4th Appellate District.
Supreme Court review granted; not citable as precedent. Opening brief: 1/31/05.
Key ruling: Medical-use defense applies to transportation charges
when defendant is asserting it as a defense to companion charges (possession
In September, 2001, Shaun Eric Wright was arrested in a Huntington Beach carwash
on a tip that there was marijuana in his truck. Police found a total of 19
ounces wrapped in eight baggies, plus a scale. He was charged with possession
for sale and illegal transportation. Wright testified he’d used marijuana since
1991 to treat pain, stress, nausea, and lack of appetite; and that he ate rather
than smoked it, requiring a pound every two or three months. Dr. William Eidelman,
who issued his approval, gave confirmatory testimony. Midway through trial
the judge ruled that Wright was not entitled to a medical-use defense to the
transportation and possession for sale charges.
The court of appeal reversed Wright’s marijuana transportation and possession
for sale convictions, saying he did not get a fair trial because the court
precluded him from using a medical-use defense, which he was entitled to based
on the lesser-included companion charge of possession (H&S11357), an explicit
“Wright contends that reversal is compelled by virtue of the court’s exclusion
of the compassionate use defense. We agree...In determining that the CUA was,
as a matter of law, inapplicable to this case, we believe the trial court prejudicially
infringed Wright’s constitutional entitlement to present a defense.”
Transportation of legal medicine was defined by the court of appeals in People
v Trippet (1997), saying defendant must have the “implicit right” to transport
or carry with her medicine she can legally possess.
The issue before the court in People v Young (2001) was whether or not the
Compassionate Use Act could be used as a defense in transportation cases. The
Young court said a defense to transportation in a vehicle is not allowed by
Prop 215, only the exemptions specified in the law, i.e., possession (11357)
and cultivation (11358), not transportation (11360).
Transportation thus became a disputed issue between two conflicting courts
of appeal. But Young is now moot, since the Trippet interpretation of transportation
as a defense and a right was codified into law in a package of protections
in Senate Bill 420, i.e., the right to obtain, use, possess, cultivate, transport
and deliver marijuana for medical purposes.
Wright is under review by the same court that gave patients a unanimously favorable
decision in Mower. They can be expected to not violate their own equality principle,
i.e., that people who use marijuana for medical purposes are “no more criminal
than” people who use prescription medicines and must be treated the same. If
that is the case, the state Supreme Court will clarify the meaning of transportation
for medical purposes: that cannabis patients must be allowed to legally possess
their medicine while traveling, as is the case with any prescription medicine.
The Wright ruling will affect the California Highway Patrol’s sweeping public
policy to confiscate any and all marijuana they encounter being transported,
without regard to a person’s legal medicinal status.
In deciding to review this case, the Supreme Court may be motivated in part
by the CHP’s unconstitutional confiscation contradiction.
The CHP justifies its policy -which contradicts Senate Bill 420- on the grounds
that the ID card program created by SB420 has not yet been officially implemented.
(See story on page W.)
In light of the Supreme Court’s soon-to-be-issued Wright ruling and a civil
rights lawsuit on 2/15/05 by Americans for Safe Access and seven cannabis patients
against the CHP for violations of constitutional rights, A.G. Bill Lockyer,
at a USF Law School seminar in February, all but conceded a settlement of the
issue would be “in everybody’s best interest”. His public persona of “medical
marijuana compassionate use advocate” conflicts with representing the CHP,
defending its confiscation-of-medicine policy.
Lockyer is likely to change the confiscation policy his office oversees before
being ordered to do so by the Wright court, so as not to appear to be resisting
Prop 215 implementation.
• People v Chavez (Sept 2004). California Court of
Appeal, 4th Appellate District.
Key ruling: Return of property is not required since there
is no clause in the law requiring it.
Marvin Chavez, who suffers from a degenerative spine disorder for which cannabis
provides relief, is a martyr of the medical marijuana movement. In 1998 Chavez
who had co-founded a cannabis co-op in Garden Grove, was arrested for selling
cannabis to an undercover police officer with a faked doctor’s letter. Chavez
was prohibited from using a Prop 215 defense and convicted. He served 15 months
in prison (Susanville), then was released on OR pending an appeal of his conviction.
Chavez was struck by the large numbers of inmates
stupefied daily by legal downers.
During this interlude he cultivated 12 plants for personal medical
use, only to have it confiscated by Santa Ana police. Chavez’s appeal
was denied; he was ordered back to prison (18 months in Vacaville,
where he was struck by the large numbers of inmates stupefied daily
by legal downers). When he got out on parole, Chavez sued Santa Ana
for return of his plants. The appeals court ruled that the court has
no authority to order return of property (marijuana) if there is no
clause in the law specifically authorizing it.
This interpretation flies in the face of the language of the statute: that
one “may possess” marijuana for medical purposes, therefore it cannot be considered
contraband, cannot be legally confiscated and must be returned as legitimate
property if erroneously seized.
The opposite presumption is true for retroactivity, which is generally presumed
applicable (People v Trippet), unless there is a clause in the law to the contrary.
The discrepancy between the presumptions for retroactivity (you are entitled
to it) and return of property (you are not entitled to it) indicate appellate
level courts’ continuing resistance to making a principled ruling on confiscations
of property, a key to the “drug war.” Confiscations keep prosecution wheels
turning. Without confiscations, they have no evidence. Without evidence, they
have no case. If confiscations of property were not allowed to go on, if illegal
searches and seizures of cannabis medicines were stopped with a court injunction,
the prosecution side of the story would virtually end.
US v Giacque is a federal case that somewhat offsets the negative Chavez ruling.
Giacque’s wife was found entitled to the return of Giacque’s property -confiscated
marijuana used for bona fide medical purposes.)
• People v Arbacauskas (Nov 2004). California Court
of Appeal, 4th Appellate District. (Depublished; not citable as precedent.)
Key ruling: Prosecutor may not reinstate complaint after dismissal
In September, 2002, a Sacramento County narcotics officer confiscated from
Timothy Arbacauskas’ residence 17 backyard and 12 small indoor plants, plus
a scale, cell phone and 8 plastic baggies. Arbacauskas was charged with intent
to sell. He testified at prelim that he intended the crop for his personal
use. He had a documented history of severe back problems, plus a doctor’s approval
(from Marian Fry). His previous attempt to cultivate had yielded disappointingly
small quantities. Expert witness Chris Conrad explained how a novice grower
might get an unexpectedly large yield (between 10.6 and 15.9 pounds). The magistrate
concluded that there wasn’t enough evidence to try Arbacauskas.
The DA made a motion to reinstate the complaint, which was denied, then appealed
the denial. The prosecutor contended there was reasonable cause to challenge
defendant’s personal-use claim, and the magistrate had made no finding of facts
contradicting the intent-to-sell charge.
The appeals court denied the motion to reinstate the complaint.
Commentary: Cannabis patients and doctors are winning in state
and federal courts more often than not. Two-thirds of the cases cited above
got favorable constitutional and/or Prop 215 rulings. A single favorable decision
positively influences all subsequent decisions.
The Raich decision allowing individual patients to grow for themselves led
to the Santa Cruz WAMM decision allowing individual patients to grow collectively.
Dr. Conant’s right to constitutionally protected speech (to discuss and authorize
marijuana for medical purposes) was affirmed in federal court, followed by
Dr. Bearman’s victory in state court based on California’s constitutionally
protected privacy rights. Virtually any well-argued challenge to improper implementation
of Prop 215 or constitutional challenge to the federal marijuana laws stands
a good chance of prevailing in appellate-level courts, both state and federal.
Notwithstanding the Supreme Court’s ruling in Raich, we expect state and federal
courts to follow in the footsteps of Mower and Conant and generally affirm
the voters’ belief that marijuana for medical purposes must be treated as a “right” rather
than a crime.
Defense attorney Omar Figueroa, cannabis law specialist and frequent speaker
on behalf of Prop 215 patients’ rights, considers it his job to “keep innocent
people out of cages.” He can be reached at Pier 5 Law Office, 506 Broadway,
San Francisco, 415-215-0469, omar<AT>aya.yale.edu.
Pebbles Trippet, pro per defendant in People v Trippet (which made transportation
for personal medical purposes an “implicit right”) is co-ordinator of the Medical
Marijuana Patients Union, a cannabis patients’ rights network. 707.964.YESS.