THE PEOPLE, Plaintiff and Appellant, v. STACY ROBERT HOCHANADEL et al.

[Vespatian]

Blue Dot, your statement:
"There is no law authorizing delivery services." This is not correct. And your attempt to support that statement with legal precedence which invalidates caregiver status to selling entities is no support at all.

Delivery services are every bit as allowable under current law as dispensaries - provided they are lawfully structured and operated. And therein lies the rub.

Structuring and operating under what is currently required by the AG guidelines and legal precendent is extremely difficult, and I believe virtually no current dispensaries operating openly meet these current requirements.

Anybody up for a rational discussion about how dispensaries need to structure and operate in order to meet current legal requirements?

 

[FreedomFGHTR]

Anybody up for a rational discussion about how dispensaries need to structure and operate in order to meet current legal requirements?

There was a sticky thread about it on here. I was the main contributor but I shit canned my content. Why? Because its something that a person should discuss with an attorney if they don't know how to do it themselves.

 

[Blue Dot]

Delivery services are every bit as allowable under current law as dispensaries

Hasn't it been proven to death here that dispensaries are illegal?

Is there anyone here who still thinks "dispensaries" are legal?

Collectives and co-ops are legal, not "dispensaries". How on earth would a delivery service doing hand to hand's on a meet and greet basis possibly be considered a collective or co-op?

 

[Vespatian]

There was a sticky thread about it on here. I was the main contributor but I shit canned my content. Why? Because its something that a person should discuss with an attorney if they don't know how to do it themselves.

That's ok then. I'm not in the dispensary business and was just interested as an intellectual excercise. The cases in SD will further magnify current practices and clarify what is required. I believe the LA DA's office will be preparing cases as well. Should be interesting.

 

[Vespatian]

Blue Dot,
A dispensary or delivery service organized and operated as a co-op or collective is legal.

 

[Blue Dot]

That's ok then. I'm not in the dispensary business and was just interested as an intellectual excercise. The cases in SD will further magnify current practices and clarify what is required. I believe the LA DA's office will be preparing cases as well. Should be interesting.

FF's thread was on how to organize a COLLECTIVE, not a dispensary.

 

[Blue Dot]

Blue Dot,
A dispensary or delivery service organized and operated as a co-op or collective is legal.

How on earth could a patient possibly be a member of a co-op if he has never met the caregiver from the co-op before and the first time they meet it's for a MJ transaction?

That's not the definition of a collective or co-op.

A collective or co-op is a closed circuit, not just someone on the other end of a phone.

 

[kmk420kali]

How on earth could a patient possibly be a member of a co-op if he has never met the caregiver from the co-op before and the first time they meet it's for a MJ transaction?

That's not the definition of a collective or co-op.

A collective or co-op is a closed circuit, not just someone on the other end of a phone.

How on Earth could anybody join a Co-op under your definition?

 

[Blue Dot]

How on Earth could anybody join a Co-op under your definition?

Because merely joining by signing a piece of paper is not "consistent care" as all primary caregivers are required to do.

It's obvious to me anyway that this is the largest loophole that delivery services like to use to justify themselves as legal.

It was the same when the dispensaries would have me designate them as my caregiver. All it took was a signature and I could purchase.

But then the courts ruled otherwise.

 

[Pythagllio]

Huh? You think Jerry just invented that on his own?

It came from SB420:

"does not authorize" is not equal to "prohibited".

It is really strange that people even read it that way, though we know with Blue Dot it's because it supports his self serving agenda. It's probably the same with Jerry, since he's running for office and he knows most people are against 'drug dealers'.

The gov't has also not authorized people to make profits on tomatoes, parachutes, kaliedoscopes, nor any of the other 100,000s of thousands of consumer products available.

Supporting this reading of SB420 is supporting the notion that the gov't needs to micromanage every aspect of our lives, and that we should only be allowed to do things that the gov't authorizes. This interpretation turns centuries of common law on its head.

 

[PharmaCan]

"does not authorize" is not equal to "prohibited".

It is really strange that people even read it that way, though we know with Blue Dot it's because it supports his self serving agenda. It's probably the same with Jerry, since he's running for office and he knows most people are against 'drug dealers'.

The gov't has also not authorized people to make profits on tomatoes, parachutes, kaliedoscopes, nor any of the other 100,000s of thousands of consumer products available.

Supporting this reading of SB420 is supporting the notion that the gov't needs to micromanage every aspect of our lives, and that we should only be allowed to do things that the gov't authorizes. This interpretation turns centuries of common law on its head.

Excellent points!!!

PC

 

[kmk420kali]

Because merely joining by signing a piece of paper is not "consistent care" as all primary caregivers are required to do.

It's obvious to me anyway that this is the largest loophole that delivery services like to use to justify themselves as legal.

It was the same when the dispensaries would have me designate them as my caregiver. All it took was a signature and I could purchase.

But then the courts ruled otherwise.

You keep saying "Caregiver", when we are talking about co-op/collectives--
How do you think you join a co-op?? You sign a piece of paper!! It just says different things than it did for a Caregiver--
To be in a co-op/collective, you do not need to actively grow the meds...simply being a member, and supporting the group with your payment for the growers time and expenditures is enough--
It really isn't all that complicated--

 

[NorCalFor20]

Fear of becoming the next LA? I dunno. lol

whats wrong with LA?

 

[Ocean Grown]

whats wrong with LA?

http://media.scpr.org/audio/upload/2009/09/23/20090923_airtalk_trutanich.mp3

About halfway thru. the audio clip is only a few minutes long but you can smell the stench of whitewash from Trutanich.

 

[richyrich]

Any attorney and even the AG's opinions and guidelines are not binding on the courts. This is specifically stated in the Hochanadel Opinion. I am not cutting down the structure of your collective. You have the papers together right. But, your statement saying it's legal to sell weed because of your collective is incorrect. Again, a reading of the Hochanadel Opinion will state this. This recently published Appellate Opinion is the current prevailing case law regarding this issue; no way around it. If you are a collective do your members have equal vote and equal holdings in the corporation? A proper collective should.

You are right about the federal tax number (EIN); total brain fart.

This thread isn't about the legal standings of my business. If you have questions then subpeona me.

By claiming that the collective is your business, concedes that the members do not hold equal ownership because you are the sole owner. Thank you for the answer. No need to subpoena you.

my business means my every day affairs. Interesting that I say if you want to talk get me in court and you assume I am guilty of a crime. Which agency do you work for?

When asked about the structure of your collective, you responded, "This thread isn't about the legal standings of my business." Then you back pedal and say, "my[sic] business means my every day affairs." You were more than willing to post pictures of all your collective legal documents. Now you say this does not pertain to your collective, but merely about your daily affairs. I wanted to show you your contradiction fellow grower. Please, take caution if you represent yourself in court as you mentioned. This type of speaking or briefing will tank you. Agency??? Do sativas make you paranoid? JK

 

[richyrich]

Where do you find a legal definition of the word collective? I've found no mention of it in CA law, but that's a lot of text so I might have missed it. The word co-operative has a legal definition under CA law. Do you agree that Prop 215 insures the rights of patients to form cooperatives? Didja know that under CA law co-ops can be formed as for profit or non-profit entities? Some day someone will finally grab hold of this and start an agricultural cooperative as defined under CA law. For profit. Totally legal, protected by Prop 215 which the legislature can not limit so sb420 is irrelevent.

There may be no specific CA statute defining a collective, but the provisions contained within SB420 do attempt to explain that. The co-op thing for profit I doubt would fly because of the provision in SB420 law that says not for profit, only reasonable expenses.

If this question were to be brought before a court, the court most likely would look to the law drafters intent when making the law to interpret the definition. Right now, you have something, because it is another gray area, or a possible loophole. But, as opined, the court would probably strike it down for failure to comply with law drafter intent.

 

[richyrich]

The challenge facing dispensaries is one of complying with the laws that apply to them and only them (in some cases).

Medical Marijuana dispensaries will be judged in court strictly on their compliance with the laws and guidelines that have been created specifically for them. The HOCHANADEL decision is a perfect example of this, and I encourage everyone to take 15 minutes and read the document FreedomFighter has linked to.

Freedom Fighter is a very smart guy, and he and I are after the same result, so I am not sure why he believes this Appellate ruling is positive for us. I assure you that Mr. Hochanadel was not happy about this decision because one of the possible (likely) outcomes of this ruling was that he may be hauled back into court to face charges that were initially thrown out by the original trial judge.

In HOCHANADEL, the Fourth District Court of Appeal was faced with two questions:

“First, did the MMPA unconstitutionally amend the CUA when it authorized "cooperatives" and "collectives" to cultivate and distribute medical marijuana?

Second, did the court err in quashing a search warrant for a storefront medical marijuana dispensary called CannaHelp located in the City of Palm Desert, California, and dismissing the criminal charges against the defendants Stacy Robert Hochanadel, James Thomas Campbell and John Reynold Bednar (collectively, defendants), who operated CannaHelp, based on its findings that (1) CannaHelp was a legal "primary caregiver" under the CUA and MMPA; and (2) the detective that authored the search warrant affidavit was not qualified to opine as to the legality of CannaHelp?”

Their ruling:

“ We conclude the MMPA's authorization of cooperatives and collectives did not amend the CUA, but rather was a distinct statutory scheme intended to facilitate the transfer of medical marijuana to qualified medical marijuana patients under the CUA that the CUA did not specifically authorize or prohibit. We also conclude that storefront dispensaries that qualify as "cooperatives" or "collectives" under the CUA and MMPA, and otherwise comply with those laws, may operate legally, and defendants may have a defense at trial to the charges in this case based upon the CUA and MMPA. We further conclude, however, that the court erred in finding that CannaHelp qualified as a primary caregiver under the CUA and MMPA and in finding that the detective who authored the search warrant affidavit was not qualified to opine as to the legality of CannaHelp's activities. We conclude the facts stated in the search warrant affidavit provided probable cause the defendants were engaged in criminal activity, and, even if the search warrant lacked probable cause, the author of the search warrant affidavit acted in reasonable reliance on its validity. Accordingly, the court erred in quashing the search warrant and dismissing the charges against defendants. Finally, we conclude that, contrary to the People's contention, defendants Campbell and Bednar had standing to challenge the validity of the search warrant.”

The original trial judge in this case ruled that the search warrant was invalid and that all of the evidence obtained from it was inadmissible, so the defendants walked. The 4th District has now ruled that the warrant was valid, thereby putting them all at risk of being re-charged and tried. Right back where they started.

The 4th District also concluded that MMPA’s authorization of co-ops and collectives was valid, which IS good but it is also somewhat of a given in that the AG’s Guidelines already accepted and “legitimized” them, even provided a rough outline of how they must be structured and operated.

The Court in its decision relied upon and quoted extensively from the AG’s Aug. ’08 Guidelines, which is significant for those who believe they are nothing more than “Jerry’s opinion”. Among other instances, the decision directly quotes the Guidelines in ruling that dispensaries that merely make a new customer sign a form designating them as the customers Primary Caregiver and then immediately sell them weed are clearly out of compliance – illegal. Unfortunately for the defendants in HOCHANADEL, this is precisely how they were operating.

The bottom is that this decision is bad news for the defendants, and gives our side nothing more than what has already been given in the AG Guidelines.

I am not an attorney and this is not legal advice. This is simply my reasoned opinion, and I welcome all dissent, slander, and death threats.

Vespatian, you posted exactly what I was gonna get to with citation, too. Well done.

"Freedom Fighter is a very smart guy, and he and I are after the same result, so I am not sure why he believes this Appellate ruling is positive for us. I assure you that Mr. Hochanadel was not happy about this decision because one of the possible (likely) outcomes of this ruling was that he may be hauled back into court to face charges that were initially thrown out by the original trial judge."

The quote above, is exactly why I entered this thread and immediately started speaking of the Hochanadel Opinion. This quote too, below.

"The Court in its decision relied upon and quoted extensively from the AG’s Aug. ’08 Guidelines, which is significant for those who believe they are nothing more than “Jerry’s opinion”. Among other instances, the decision directly quotes the Guidelines in ruling that dispensaries that merely make a new customer sign a form designating them as the customers Primary Caregiver and then immediately sell them weed are clearly out of compliance – illegal. Unfortunately for the defendants in HOCHANADEL, this is precisely how they were operating."

 

[richyrich]

The recent Hochanadel Opinion is significant. Look at what just happened in San Diego shortly after it was filed. Now, look at this recently posted article in LA. After bogging for so long, now they know what to do. Court guidance finally, unfortunately, not what many wanted.

LA may shut medical pot dispensaries
From wire service reports
Posted: 09/22/2009 10:23:52 PM PDT

A Los Angeles City Council committee Tuesday began considering a proposed permanent ordinance to require the immediate closure of hundreds of medical marijuana dispensaries that operate for profit.

The City Council's Planning and Land Use Committee heard presentations from the Los Angeles City Attorney's Office, L.A. County District Attorney's Office and Los Angeles Police Department, but decided to hold more hearings.

The proposed ordinance allows the operation of medical marijuana collectives, which are groups of qualified patients, and primary caregivers who cultivate medical marijuana solely for the qualified patients.

Under the proposed ordinance, collectives must be at least 1,000 feet from other collectives, schools, playgrounds, child care facilities, religious institutions, public libraries, public parks, hospitals and rehab centers.

Collectives would also be limited to giving their members medical marijuana only between 10 a.m. and 8 p.m. They cannot have more than five pounds of dried marijuana nor have more than 100 plants on their property at any time.

Before collectives can begin operating, their location will be inspected by Department of Building and Safety officials to ensure compliance with the ordinance.

Once the collectives are in place, they are required to document each member's participation in the medical marijuana cultivation, and provide an accounting of their expenses.

Collectives that began operating before Sept. 14, 2007, and registered with the City Clerk's Office before Nov. 12, 2007, will be given 90 days to comply once the ordinance takes effect.

Collectives that began operating after that time frame are required to comply immediately, or be shut down.

"We are not talking about a dispensing model," Deputy City Attorney Heather Aubry said. "We are talking about a collective cultivation model whereby patients, their caregivers, can come together and cultivate medical marijuana for provision to their patients, which is in compliance with state law."

Joseph Esposito, head deputy district attorney for major narcotics at the L.A. County District Attorney's Office, stressed "it is our position that over-the-counter sales of marijuana in exchange for money and the profitability - the tremendous profitability that's attached to those sales - are illegal under California law."

Esposito said California allows "very specific conduct: qualified patients and their caregivers can cultivate and can use. That is it. There is no additional language that says you can sell over-the-counter."

Several owners and customers of medical marijuana dispensaries, as well as members of collectives, packed the hearing to protest the proposed regulations.

Among them was Umberto Martinez, Jr., who is paralyzed from his navel to his feet, and said he needs medical marijuana to help him cope with back spasms.

Martinez said he owns a collective that sells medical marijuana to more than 1,000 other people.

"We do have to make some sort of profits," Martinez said. "Not a lot of profits but a little bit, because we do have bills to pay, we do have mortgages and rents to pay, and we do have car payments as well."

A legal loophole in a temporary ordinance had led to the uncontrolled proliferation of medical marijuana dispensaries. It is believed that as many as 600 of them opened across the city within a span of months.

 

[richyrich]

I'm not in the dispensary business and was just interested as an intellectual excercise. The cases in SD will further magnify current practices and clarify what is required. I believe the LA DA's office will be preparing cases as well. Should be interesting.

My thoughts exactly. Just look at the article I posted right above.

 

[richyrich]

FF - I am glad you agree that the AG's guidelines are the template upon which future court decisions will be based. I have no first hand knowledge about how the SD clubs were structured or operated. You claim they were in compliance, so that's good.

However, the AG's guidelines and the Hochanadel decision present a very high standard for co-op's and collectives to meet in order to be in compliance. Those standards would be a good subject for further discussion.

Again, on point. My opinion would be that the majority of those raided were dispensaries, and maybe a few true collectives and/or co-ops, unfortunately, were taken down, too.