People v. Kelly Decision Out: Limits Struck Down in CA

SB420 stands, limits do not!

Opinion Released - Supreme Court of California on People v Kelly

Full opinion (56 pages) -
http://www.courtinfo.ca.gov/opinions/documents/S164830.PDF

California Supreme Court decision establishes state plant and
possession limits as a floor, not a ceiling:

"Whether or not a person entitled to register under the MMP elects to
do so, that individual, so long as he or she meets the definition of a
patient or primary caregiver under the CUA, retains all the rights
afforded by the CUA. Thus, such a person may assert, as a defense in
court, that he or she possessed or cultivated an amount of marijuana
reasonably related to meet his or her current medical needs (see
Trippet, supra, 56 Cal.App.4th 1532, 1549), without reference to the
specific quanitative limitations specified by the MMP."

"We conclude as follows: To the extent section 11362.77 (together with
its quantitative limitations) impermissibly amends the CUA by
burdening a defense that would be available pursuant to that
initiative statute, section 11362.77 is invalid under California
Constitution article II, section 10, subdivision (c). Nevertheless, it
would be inappropriate to sever section 11362.77 from the MMP and
hence void that provision in 54 its entirety. To the extent the
judgment of the Court of Appeal purports to sever section 11362.77
from the MMP and to void this statute in its entirety, the judgment is
reversed. In all other respects, the judgment is affirmed.




PEOPLE v. KELLY
Case: S164830, Supreme Court of California

Date (YYYY-MM-DD): 2010-01-21
Event Description: Opinion filed: Judgment affirmed in full
Notes:
We conclude as follows: To the extent section 11362.77 (together with its quantitative limitations) impermissibly amends the CUA by burdening a defense that would be available to pursuant to that inititative statute, section 11362.77 is invalid under California Constitution article II, section 10, subdivision (c).
Nevertheless, it would be inappropriate to sever section 11362.77 from the MMP and hence void that provision in its entirety. To the extent the judgment of the Court of Appeal purports to sever section 11362.77 from the MMP and to void this statute in its entirety, the judgment is reversed. In all other respects the judgment is affirmed.

OPINION BY: George, C.J.

-- joined by: Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.


For more information on this case, go to:
http://appellatecases.courtinfo.ca.gov/search/disposition.cfm?dist=0&doc_id=1896508
For opinions, go to: http://www.courtinfo.ca.gov/cgi-bin/opinions.cgi?Courts=S

California Supreme Court strikes down limits on medical marijuana possession
January 21, 2010 | 11:50 am

The California Supreme Court today struck down the state's limits on how much medical marijuana a patient can possess, concluding that the restrictions imposed by the Legislature were an unconstitutional amendment of a 1996 voter-approved initiative.

The decision means that patients and caregivers with a doctor's recommendation to use marijuana can now possess as much as is "reasonably related to the patient's current medical needs," a standard that the court established in a 1997 decision.

"I'm very pleased. They gave us exactly what we wanted," said Gerald F. Uelmen, a law professor at Santa Clara University who argued the case for Patrick K. Kelly, a medical marijuana patient from Lakewood who was convicted of possession and cultivation. "This makes it very clear that all of the rights of patients under the Compassionate Use Act are fully preserved."

The initiative did not limit the amount of marijuana that a patient could possess or cultivate other than to require it be "personal medical purposes."

In 2003, the Legislature passed a law intended to clarify the initiative and give guidance to patients and law enforcement officials. The Legislature decided that patients could have up to 8 ounces of dried marijuana and grow as many as six mature or 12 immature plants. The law also allowed a patient to have more if a doctor stated that amount was insufficient.

The court concluded that those restrictions improperly amended the Compassionate Use Act, which was approved by voters and includes no provision that allows the Legislature to amend it.

-- John Hoeffel


---------------------------------------------------------------------------
*PRESS RELEASE
Americans for Safe Access
For Immediate Release:* January 21, 2010

*California Supreme Court Strikes Limits for Medical Marijuana Patients*
/Exemption from arrest and prosecution upheld for state-issued ID
cardholders/

*San Francisco, CA* -- The California Supreme Court issued a unanimous
published decision today in /People v. Kelly/, striking down what it
considered unconstitutional legislative limits on how much medical
marijuana patients can possess and cultivate. Today's decision also
affirms protection from arrest and prosecution for patients who both
possess a state-issued identification card and comply with state or
local personal use guidelines.

"The California Supreme Court did the right thing by abolishing limits
on medical marijuana possession and cultivation," said Joe Elford, Chief
Counsel with Americans for Safe Access, the country's largest medical
marijuana advocacy group. "At the same time, the Court may have left too
much discretion to law enforcement in deciding what are reasonable
amounts of medicine for patients to possess and cultivate."

Although the court affirmed that qualified patients and their primary
caregivers retain "all the rights afforded by the CUA [Compassionate Use
Act of 1996]," law enforcement can still arrest and prosecute if
probable cause exists. In keeping with the CUA, qualified patients and
their primary caregivers will still have an affirmative defense in
court. Advocates remain concerned that without guidance on personal use
amounts, police may abuse their discretion to arrest patients who are in
compliance with the law.

The defendant, Patrick Kelly, is a qualified medical marijuana patient
treating a number of conditions, including hepatitis C, chronic back
pain, and cirrhosis. Kelly was arrested in October of 2005 for
possessing 12 ounces and cultivating 7 plants at his home in Lakewood,
California. Kelly was convicted a year later by a jury, which concluded
that he had exceeded the state-imposed "limits" of 8 ounces of dried
medical marijuana and six mature plants. California's Second Appellate
District Court overturned Kelly's conviction on the grounds that
legislatively-imposed limits on possession and cultivation of medical
marijuana are an unconstitutional restriction to a voter approved
initiative (Proposition 215, the Compassionate Use Act of 1996).

Both parties in the case, Kelly and the State Attorney General, agreed
that medical marijuana limits should be abolished as unconstitutional.
Both parties also opposed the appellate court's invalidation of the
entire statute, Health & Safety Code Section 11362.77, which protects ID
cardholders from arrest and prosecution if they are in compliance with
local or state guidelines.

What do you guys think? Is this going to make things clearer or not? Does it still put patients at risk?

Here's Steve Kubby's take on it:

What the Kelly Decision means for patients? More Bullshit

The Supreme Court decision decided nothing. Cops can still arrest you
for being over the state limits, but you get to use an affirmative
defense in court. What a load of crap.

What part of the Prop. 215 Title and Summary, which said, "Exempts
patients and caregivers..," does the Supreme Court not understand?

This decision isn't worth the paper it's printed on.

Click to expand...

I agree with Steve.

I dont suggest to anybody you go over your plant limits/possession limits without knowing what you're in for.

Atleast its an extra defense in court.

People v. Kelly changes nothing in CA

People v. Kelly changes nothing in CA

It sounds like some big victory on the face of it, but practically speaking, this decision changes nothing.

The MMJ card program is still in place as are the quantity limits... but only as applied to the card program. In other words, if you have a legitimate patient or caregiver card, you will not even be arrested if you are in possession of MMJ at or below the 12/6 plants and 8oz limit.

All the decision stands for is the proposition that these limits can't be asserted against you when you are arrested for possessing MMJ above the limits of SB420 and assert a medical necessity defense under Prop 215.

The problems: 1) No card = arrest and prosecution, albeit with a possible defense in Prop 215. I say "possible" defense because you still have to prove that you are a legitimate MMJ patient or caregiver by producing a valid doctor's recommendation.

Problem 2) With valid card, but over the 12/6/8oz limits = arrest and prosecution, but with the same Prop 215 defense.

Without registering with the county and receiving a valid MMJ card as patient or caregiver, you are obviously subject to arrest and prosecution, but you can assert a Prop 215 defense... after the hassle of being arrested, booked, posting bail and showing up to court multiple times until the actual trial where you can finally don the protective armor of a Prop 215 defense.

Registering for a card but violating the quantity limits will land you in the same boat... arrest, prosecution, etc... all the same hassles until you get to assert your Prop 215 defense at trial.

ONLY by having a valid county-issued card and possessing MMJ UNDER the 12/6/8oz limits are you IMMUNE from even being arrested and rotating in and then, hopefully, out of the criminal justice system...

This was the state of the law BEFORE the Kelly decision and nothing has changed now.

WeedLaw said:

It sounds like some big victory on the face of it, but practically speaking, this decision changes nothing.

The MMJ card program is still in place as are the quantity limits... but only as applied to the card program. In other words, if you have a legitimate patient or caregiver card, you will not even be arrested if you are in possession of MMJ at or below the 12/6 plants and 8oz limit.

All the decision stands for is the proposition that these limits can't be asserted against you when you are arrested for possessing MMJ above the limits of SB420 and assert a medical necessity defense under Prop 215.

The problems: 1) No card = arrest and prosecution, albeit with a possible defense in Prop 215. I say "possible" defense because you still have to prove that you are a legitimate MMJ patient or caregiver by producing a valid doctor's recommendation.

Problem 2) With valid card, but over the 12/6/8oz limits = arrest and prosecution, but with the same Prop 215 defense.

Without registering with the county and receiving a valid MMJ card as patient or caregiver, you obviously subject to arrest and prosecution, but you can assert a Prop 215 defense... after the hassle of being arrested, booked, posting bail and showing up to court multiple times until the actual trial where you can finally don the protective armor of a Prop 215 defense.

Registering for a card but violating the quantity limits will land you in the same boat... arrest, prosecution, etc... all the same hassles until you get to assert your Prop 215 defense at trial.

ONLY by having a valid county-issued card and possessing MMJ UNDER the 12/6/8oz limits are you IMMUNE from even being arrested and rotating in and then, hopefully, out of the criminal justice system...

This was the state of the law BEFORE the Kelly decision and nothing has changed now.

Click to expand...

Good first post!! Very well thought out and articulate--
Except that as we move forward with all this, the Police are seeing their cases get found "Not Guilty", time after time--
They really didn't care, until now, when ppl are now suing for the weed/plants they stole!! Not only that, but now they are getting the inflated prices they throw on a grow...thrown back in their faces--
Better believe they are taking notice...and will think before they bust....hopefully sometime in the near future--
But remember...cops are programmed with Reefer Madness...that may not be fixed overnight...maybe LEAP should train all the new cops!!

kmk420kali said:

Good first post!! Very well thought out and articulate--
Except that as we move forward with all this, the Police are seeing their cases get found "Not Guilty", time after time--
They really didn't care, until now, when ppl are now suing for the weed/plants they stole!! Not only that, but now they are getting the inflated prices they throw on a grow...thrown back in their faces--
Better believe they are taking notice...and will think before they bust....hopefully sometime in the near future--
But remember...cops are programmed with Reefer Madness...that may not be fixed overnight...maybe LEAP should train all the new cops!!

Click to expand...

That's why more often than not these days especially in more liberal areas LEO is just doing smash and grab operations and they don't even bother to press charges.

hell i'll take all the grey area i can get

56 pages?

56 pages?

Ya..56 pages of case...

did ya read the HELL he went threw?

Someone RAtted him out..and in the backyard were 7 plants..7!

sure he had 12 prepacked ozs in the house..cuz he cant smoke..

he eats medical marijuana...

arrested..charged..this guy went threw the system..he's the hero!

and the people that helped defend him!!