The People v Mentch - an indepth look

[FreedomFGHTR]

interesting thread.... but it all boils down to my friends case, then SB 420, then people v urizceanu then people v kha then County of Butte v. Superior Court, and people v kelly. The rest of the cases are just commentary...

lungren v peron

My favorite part is...

""To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana." (§ 11362.5(b)(1)(C).)If the statute authorized the sale or "affordable distribution" of marijuana to patients other than by personal cultivation, there would be no need to "encourage" the governments to implement such a plan."

Reinforced with...

"Respondents, thus, urge that an initiative measure, presented to the electorate as one continuing to proscribe marijuana sales, must now be judicially interpreted to permit such sales because those immune from prosecution for its possession or cultivation will be inhibited in acquiring it if the provider risks prosecution in selling it; and the medical use of marijuana intended by section 11362.5 will be, accordingly, frustrated. "

Obviously the court didn't want to make new law. But however said exactly what should be done to allow sales.

"... we would initiate a decriminalization of sales of and traffic in marijuana in this state. Whether that concept has merit is not a decision [59 Cal.App.4th 1395] for the judiciary. It is one the Legislature or the people by initiative are free to make. Proposition 215, in enacting section 11362.5, did not do so."

SB420 Was the answer to this decision.

"one who sells, furnishes, or gives away marijuana to a patient or a qualified primary caregiver authorized to acquire it for the patient's physician-approved medicinal use, violates the law. Those sellers have no defense because of section 11362.5 to charges of violation of sections 11359 or 11360(a)."

Nope but we do under SB420

"11362.775. Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570."

Then there is this from Urziceau (2005) 132 Cal.App.4th

"Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570." Thus, the Legislature also exempted those qualifying patients and primary caregivers who collectively or cooperatively cultivate marijuana for medical purposes from criminal sanctions for possession for sale, transportation or furnishing marijuana, maintaining a location for unlawfully selling, giving away, or using controlled substances, managing a location for the storage, distribution of any controlled substance for sale, and

Page 49

the laws declaring the use of property for these purposes a nuisance. This new law represents a dramatic change in the prohibitions on the use, distribution, and cultivation of marijuana for persons who are qualified patients or primary caregivers and fits the defense defendant attempted to present at trial. Its specific itemization of the marijuana sales law indicates it contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana.

 

[johnnyla]

Apparantly Hydrosun. He thinks all pesticides sold at homedepot are just fine for consumption and he'll be dammed if he needs the police or anyone else to tell him otherwise.

i don't think Pyth said or meant that.

you remind me of that little whiny bratty kid who always ratted you and your friends out when you were doing anything.

kind of like a nuisance.

i'm not saying that to be a mean dick. i'm saying that because you spread lies about pesticide weed. i think there probably is some at the shady D's. i shoped around when i went to D's. i inspected the product.

look, all the problems you have with the system in Socal is THE GOVERNMENT'S FAULT. You can blame Bonnie, and trutanich and every other douchebag politician who did nothing since prop 215 became law. Of course we have the problems we have today. The govt did nothing to regulate an entire industry. So you get what we have right now.

Blame The Governator.

 

[Blue Dot]

look, all the problems you have with the system in Socal is THE GOVERNMENT'S FAULT. You can blame Bonnie, and trutanich and every other douchebag politician who did nothing since prop 215 became law. Of course we have the problems we have today. The govt did nothing to regulate an entire industry. So you get what we have right now.

Blame The Governator.

I agree, but I guess a little self-regulation by the D's is too much to ask.

They are just as to blame.

Why the hell can't anyone step up out of this mess and do it right?

Is it really that difficult or is EVERYONE a greedy pig who only serves their own interests (that includes politicians and D's alike).

I hate to say it, but this whole MMJ scene in cali has really turned me off to human nature. I just feel now that humans cannot be trusted to do the right thing. I guess I was just hoping that there still was a little piece of that 60's "hippy dippy" mentality left over in some californians but obviously those times have been replaced by much sinister people.

 

[johnnyla]

I agree, but I guess a little self-regulation by the D's is too much to ask.

They are just as to blame.

Why the hell can't anyone step up out of this mess and do it right?

Is it really that difficult or is EVERYONE a greedy pig who only serves their own interests (that includes politicians and D's alike).

I hate to say it, but this whole MMJ scene in cali has really turned me off to human nature. I just feel now that humans cannot be trusted to do the right thing. I guess I was just hoping that there still was a little piece of that 60's "hippy dippy" mentality left over in some californians but obviously those times have been replaced by much sinister people.

The government allowed them to structure in the way they did and now want them to structure themselves in a way that is impossible without dissolving the D's. So now what?

At least in Colorado they are testing their own stuff. I think Maine will lead the way with state licensed D's next year. We can look East for guidance.

 

[Hydrosun]

Glady, but don't F'ing sell that shit to un-knowing customers. That's my beef. Kill yourself if you want but don't endanger the lives of other.

That's where it goes from a 'victimless" crime to a crime with victims. Get it?

ASS CLOWN, have you ever heard of a farmers market? Held weekly in many CA towns? Why don't you go bother everyone at those booths and leave ICmag the fuck alone.

There are no trans fats or labels on my shit, and very fortunate for me YOU will never smoke any. As others have mentioned you are a whiny little piece of shit.

There can be no government protection strong enough from keeping your own stupidity from hurting you. That being said you should just check yourself into jail (go break a window on main street or something, and wait for the thick blue line to show up) and get three hots and a cot as well as medical care.

As for me I'll buy unlabeled fruits and vegetables from farmers markets and I'll smoke my herb. I don't need ANY help from you in this effort, please just go the fuck away.

Peace,

 

[Pythagllio]

Well, you can shop at Harborside in Oakland if you want to be assured of pesticide free cannabis.

Oh wait, we wouldn't want Steve DiAngelo to make a profit, would we?

 

[richyrich]

In these raging debates regarding sales; I attempt to put forth the current case law to inform people here. A lot of people here do not like it as it stands. Then debates get going with citations and personal interpretations to the laws. The only one that is going to matter right now is this one if you find yourself in court.

In these debates it starts off by citing laws with personal interpretations and when opposed by seemingly more correct analysis, then the the person resorts to ideological views. It's one or the other, not both. Ideological views have no place in law analysis in this instance or in court for that matter. If you want to speak ideals, then start your argument with ideals, but don't resort to ideals when you have no further legal citations and analysis to back your position. Just quietly disappear as often seen.

I have posted this case to inform the uninformed that all have an opinion without any knowledge of this very important case.

I started this thread for legal analysis. Read the above. The same people have resorted to what I have posted ^^^ above to preempt this. Nobody is going to change their thoughts and positions. If you want to continue your same quibbles about your ideological views and politics, please, start another thread in the forum or I can start one for you all.

You may not like the laws as they stand, but bet your ass that if you land in court or the can you will be using these same statutes and case law to get yourself out. Legal analysis only, please. This will help a lot of people inform themselves before hand to stay out of trouble.

 

[kmk420kali]

I started this thread for legal analysis. Read the above. The same people have resorted to what I have posted ^^^ above to preempt this. Nobody is going to change their thoughts and positions. If you want to continue your same quibbles about your ideological views and politics, please, start another thread.

You may not like the laws as they stand, but bet your ass that if land in court or the can you will be using these same statutes and case law to get yourself out. Legal analysis only, please. This will help a lot of people inform themselves before hand if they ever get in trouble.

Legal Analysis is the same as Ideological Views--
Go sit in different Courtrooms, and watch different Judges work...they will not hand out sentences based on purely Legal Analysis...they will interject their own Interpretations of the Law...each coming to a different Sentance, for Defendants with very simular case history and background--
I have been a victim of this System for many years...I have seen it very first hand--

 

[richyrich]

Legal Analysis is the same as Ideological Views--
Go sit in different Courtrooms, and watch different Judges work...they will not hand out sentences based on purely Legal Analysis...they will interject their own Interpretations of the Law...each coming to a different Sentance, for Defendants with very simular case history and background--
I have been a victim of this System for many years...I have seen it very first hand--

Far from. Judges and attorneys present facts -- not ideals -- to the jury and the jury applies the laws (statutes and case law). That is why a juror is called a trier of fact. Not a trier of ideological thoughts. The judges, also, apply legal analysis (meaning applying the statutes and current case law) to the FACTS of the case.

Reaching a verdict is one thing, sentencing is another. Judges have discretion to choose as they will when sentencing.

And, judges will come to different legal interpretations regarding the facts and laws, as they often do when they do not agree on appellate opinions. So, since we are all human, we know there is personal bias in there at times. That is the reality of it.

Ideology is for the politicians.

 

[Surrender]

Richy are you familiar with the document "White Paper on Marijuana Dispensaries" being touted by the CA Police Chief's organization?

It is the 3rd link down on This page.

Apparently this is the document that has so many county commissioners and city councils scared. It states that if a city council authorizes a dispensary in their city they could be personally be subject to Federal criminal charges.

Many of these recent moratoriums have come as a result of this document, I think.

Edit: I am speaking from a Colorado perspective. A lot of these CA cases are being cited out here.

 

[richyrich]

Richy are you familiar with the document "White Paper on Marijuana Dispensaries" being touted by the CA Police Chief's organization?

It is the 3rd link down on This page.

Apparently this is the document that has so many county commissioners and city councils scared. It states that if a city council authorizes a dispensary in their city they could be personally be subject to Federal criminal charges.

Many of these recent moratoriums have come as a result of this document, I think.

Oh, yes. If it is the one by the LAPD, I am mentioned in there and it was a complete lie. I will expand on this after. I have to leave for a doctor's appointment right now.

[edit] I just looked at it real quick. Not the same one, but I read this one a while back. I'll try to get to it. I remember there is a lot of fubar in there.

 

[richyrich]

I'm about ready to post on The People v. Hochanadel too.

 

[Surrender]

Interesting analysis of Urziceanu in this summer's issue of O'Shaughnessy's page 44.

Pebbles claims it establishes 5 additional protections for coops/collectives:

1. right to sell
2. right to distribute
3. right to manage a warehouse
4. right to maintain a warehouse
5. exemption from nuisance laws

in addition to the other codified rights
6. right to obtain
7. right to use
8. right to possess
9. right to cultivate
10. right to transport
11. right to deliver

The article is an excellent recent analysis and thorough review of the situation with coops/collectives.

 

[Blue Dot]

Interesting analysis of Urziceanu in this summer's issue of O'Shaughnessy's page 44.

Pebbles claims it establishes 5 additional protections for coops/collectives:

1. right to sell
2. right to distribute
3. right to manage a warehouse
4. right to maintain a warehouse
5. exemption from nuisance laws

in addition to the other codified rights
6. right to obtain
7. right to use
8. right to possess
9. right to cultivate
10. right to transport
11. right to deliver

The article is an excellent recent analysis and thorough review of the situation with coops/collectives.

So we've gone from a very vague 215 to the right to do absolutely anything and everything?

Talk about wishful thinking.

 

[JackTheGrower]

First off today : This is an amazing thread and I am thankful for every post. Just amazing info!

Sadly I cannot compete on case law and so I must resort to comments as my means to interact. Please do keep making efforts to share case law. I'm one who is being exposed to looking at it from case law for the first time. I'm sure there are others reading and rereading these threads like I am..

So a big Thank You!

The big stuff I agreed with was your perfectly constructed sentence that cannabis should be legal for everyone and that would solve the medical marijuana problem.

If we take your suggestion then there is NO NEED for MMJ laws, just as there are not laws for or against growing tomatoes at your house if you want. When MJ is treated like a tomato the price will drop and the selection will expand exponentially. Because not everyone has the time or skill as you mentioned it would be best to leave those who can produce free to do it as they see fit.

I personally grow great MJ that is harvested with the system at 150ppm or less, as a comparison the shitty tap water here is 580ppm of toxic who knows. Lucky for me my ladies drink reverse osmosis water instead of tap

Peace,

I find my organic efforts yield a common trait no mater what the strain ( so far ) and that is smooth. I'd like to find a way to practice proper horticulture as a medical person. I want to learn more about growing cannabis and naturally I would have a lot more than I need.

If the "Collective" term is defined wouldn't that solve things?

 

[Surrender]

So we've gone from a very vague 215 to the right to do absolutely anything and everything?

Talk about wishful thinking.

This is within the structure of the coop/collective with bonafide members. She wasn't talking about a public-facing walk-in retail business.

 

[Hydrosun]

Interesting analysis of Urziceanu in this summer's issue of O'Shaughnessy's page 44.

Pebbles claims it establishes 5 additional protections for coops/collectives:

1. right to sell
2. right to distribute
3. right to manage a warehouse
4. right to maintain a warehouse
5. exemption from nuisance laws

in addition to the other codified rights
6. right to obtain
7. right to use
8. right to possess
9. right to cultivate
10. right to transport
11. right to deliver

The article is an excellent recent analysis and thorough review of the situation with coops/collectives.

In this legal analysis thread I'd like to address 3,4,5 of above because they seem to be one issue or objection. Many legal activities are regulated to certain areas through zoning or the use of nuisance laws. For example dairy farmers can be forced to sell and move away after the track homes move in, because the odor the dairy farm emits is a nuisance.

So if MJ is to be viewed as any other commodity it necessarily should be subject to REAL public nuisance standards.

These are the tricky details that are never discussed about how non-criminalized but not state approved transactions and production take place. Nuisance laws have been used for ever to ban adult book stores, strip bars, arcades, and other such non-sense. I really don't want our collective strength imposing on anyone, but that doesn't mean I think we are ready for 24/7 WEED HERE in neon signs at every check cashing and payday loan store.

Peace,

 

[richyrich]

Here is The People v. Hochanadel regarding dispensaries.



THE PEOPLE, Plaintiff and Appellant, v. STACY ROBERT HOCHANADEL et al.,
Defendants and Respondents.
D054743
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT,
DIVISION ONE
176 Cal. App. 4th 997; 98 Cal. Rptr. 3d 347; 2009 Cal. App. LEXIS 1359
August 18, 2009, Filed


PRIOR-HISTORY:
APPEAL from a judgment of the Superior Court of
Riverside County, No. INFO56902, David B. Downing,
Judge.


OPINION
NARES, J.--In this case we are presented with two
questions regarding the legality of storefront dispensaries
that provide medical marijuana pursuant to the
Compassionate Use Act of 1996 (CUA; Health & Saf.
Code, § 11362.5), approved by voters in 1996 under
Proposition 215, and its implementing legislation, the
Medical Marijuana Program Act (MMPA).
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
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
Page 1
caregiver" under the CUA and MMPA; and (2) the
detective who authored the search warrant affidavit was
not qualified to opine as to the legality of CannaHelp?
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
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.


INTRODUCTION
Based upon evidence obtained from a search
pursuant to a court-authorized warrant, the Riverside
County District Attorney's Office charged defendants
with possession of marijuana for sale (Health & Saf.
Code, 1 § 11359; count 1); transportation of marijuana (§
11360, subd. (a); count 2); and maintaining a business for
the purpose of selling marijuana (§ 11366; count 3).
1 All further statutory references are to the
Health and Safety Code unless otherwise
specified.
Defendants brought a motion to quash the search
warrant. The court granted the motion finding (1) the
detective who authored the affidavit in support of the
search warrant was not qualified as an expert on the CUA
and MMPA; (2) the dispensary defendants operated
qualified as a "primary caregiver" under the CUA and
thus they did not violate the law; and (3) the warrant and
resulting evidence were therefore illegal. The court
thereafter dismissed the case based upon a lack of
evidence.
The People appeal, asserting the court erred in
quashing the search warrant because (1) the MMPA,
which implemented the CUA, unconstitutionally
amended the CUA by authorizing marijuana cooperatives
as primary caregivers; (2) defendants' storefront
dispensary did not qualify as a primary caregiver under
the MMPA; (3) the "collective knowledge" doctrine
established probable cause for the warrant; (4) the
detective who authored the search warrant provided
competent expert evidence to support a finding of
probable cause; (5) the good faith exception to the
exclusionary rules applies even if the search warrant was
invalid; and (6) defendants Bednar and Campbell did not
have standing to challenge the search warrant as they
were not owners of CannaHelp.


FACTUAL AND PROCEDURAL BACKGROUND2
2 Because this matter was dismissed prior to
trial, we take the facts from the preliminary
hearing transcript and the search warrant affidavit.
A. The Investigation
In October 2005 Hochanadel opened a marijuana
dispensary named "Hempies" in the City of Palm Desert.
Hochanadel later changed the name to "CannaHelp."
Hochanadel filed a certificate of use statement with the
State of California, identifying it as a dispensary for
medical marijuana. CannaHelp obtained a business
license from the City of Palm Desert to operate a medical
marijuana dispensary and operated it in a transparent
fashion. Access to the business was controlled by
employees, who allowed customers to enter a room
where their medical marijuana prescription was verified.
Once it was verified the customer had a valid
prescription, the customer was allowed access to a second
room where various types of marijuana were on display.
Employees received weekly training on the different
strains of marijuana and offered advice to patients on
what strains were effective for different ailments. Prior to
making a purchase, customers completed paperwork
designating CannaHelp as their primary caregiver. All the
patients of CannaHelp had valid doctor's statements, and
CannaHelp contacted authorities when someone tried to
Page 2
illegally purchase marijuana. CannaHelp operated like
any other business, with financial records, employee
records, and policies and procedures. Campbell and
Bednar were the managers and co-owners of CannaHelp.
All three defendants had medical referrals for marijuana
and were qualified medical marijuana patients under the
CUA.
Riverside County Sheriff's Detective Robert Garcia
investigated CannaHelp. Under his direction, police
conducted surveillance of CannaHelp. They observed a
significant amount of buying activity. The customers
were mostly young, without any observable health
conditions. Detective Garcia saw Gary and Krista Silva
arrive in a van. It was determined Gary Silva was a
manufacturer and supplier of marijuana to CannaHelp.
On March 14, 2006, federal agents executed a search
warrant at Gary Silva's home. While executing the search
warrant, officers observed a fully operational growing
operation in a sectioned-off portion of the garage, with 69
marijuana plants and growing equipment. Agents found
"numerous" loaded firearms in Silva's residence. They
also discovered several canisters of dried marijuana for
sale, and marijuana on drying racks in the master
bedroom.
Detective Garcia sent an undercover officer into
CannaHelp with a manufactured physician's statement
produced by the sheriff's department. That officer was
denied entry when CannaHelp employees could not
verify the physician's statement was legitimate.
A second officer then went to a physician in Los
Angeles and complained of chronic back pain. He
obtained a statement from that doctor allowing him to
purchase medical marijuana. He presented it to
CannaHelp and was allowed to purchase marijuana. Prior
to purchasing the marijuana, he was given advice as to
which strain would be most helpful for his back pain and
signed a document designating CannaHelp as his primary
caregiver.
While inside CannaHelp, the undercover agent
observed an ATM machine and three display boards
listing prices for different quantities of marijuana. The
agent also observed plastic containers of marijuana inside
a glass counter. An employee recommended a specific
type of marijuana for his back pain, and he purchased one
ounce of marijuana for $ 290. The same agent later
conducted another undercover buy, this time purchasing
one-half an ounce for $ 290.


DISCUSSION
I. APPLICABLE AUTHORITY
A. The CUA
The CUA was approved by California voters as
Proposition 215 in 1996 and is codified at section
11362.5. (People v. Trippet (1997) 56 Cal.App.4th 1532,
1546 [66 Cal. Rptr. 2d 559]; People v. Tilehkooh (2003)
113 Cal.App.4th 1433, 1436 [7 Cal. Rptr. 3d 226].)
Subdivision (d) of section 11362.5 provides: "Section
11357, relating to the possession of marijuana, and
Section 11358, relating to the cultivation of marijuana,
shall not apply to a patient, or to a patient's primary
caregiver, who possesses or cultivates marijuana for the
personal medical purposes of the patient upon the written
or oral recommendation or approval of a physician." The
CUA directed the Legislature to "implement a plan to
provide for the safe and affordable distribution of
marijuana to all patients in medical need of marijuana."
(§ 11362.5, subd. (b)(1)(C).)
Under the CUA, a "primary caregiver" is defined as
"the individual designated by the person exempted under
this section who has consistently assumed responsibility
for the housing, health, or safety of that person." (§
11362.5, subd. (e).) The California Supreme Court has
recently held that to be a primary caregiver under this
section, an individual must show that "he or she (1)
consistently provided caregiving, (2) independent of any
assistance in taking medical marijuana, (3) at or before
the time he or she assumed responsibility for assisting
with medical marijuana." (People v. Mentch (2008) 45
Cal.4th 274, 283 [85 Cal. Rptr. 3d 480, 195 P.3d 1061]
(Mentch).) The high court in Mentch concluded that a
person does not qualify as a primary caregiver merely by
having a patient designate him or her as such or by the
provision of medical marijuana itself. (Id. at pp.
283-285.) Rather, the person must show "a caretaking
relationship directed at the core survival needs of a
seriously ill patient, not just one single pharmaceutical
need." (Id. at p. 286.)
B. The MMPA
In 2003 the Legislature enacted the MMPA, effective
January 1, 2004, adding sections 11362.5 through
11362.83 to the Health and Safety Code. (People v.
Wright (2006) 40 Cal.4th 81, 93 [51 Cal. Rptr. 3d 80,
146 P.3d 531].) The express intent of the Legislature was
to: "(1) Clarify the scope of the application of the [CUA]
and facilitate the prompt identification of qualified
patients and their designated primary caregivers in order
to avoid unnecessary arrest and prosecution of these
individuals and provide needed guidance to law
enforcement officers. [¶] (2) Promote uniform and
consistent application of the [CUA] among the counties
within the state. [¶] (3) Enhance the access of patients
and caregivers to medical marijuana through collective,
Page 4
cooperative cultivation projects. [¶] (c) It is also the
intent of the Legislature to address additional issues that
were not included within the [CUA], and that must be
resolved in order to promote the fair and orderly
implementation of the [CUA]." (Stats. 2003, ch. 875, § 1,
italics added.) The legislative history further states,
"Nothing in [the MMPA] shall amend or change
Proposition 215, nor prevent patients from providing a
defense under Proposition 215 ... . The limits set forth in
[the MMPA] only serve to provide immunity from arrest
for patients taking part in the voluntary ID card
program, they do not change Section 11362.5
(Proposition 215) ... ." (Sen. Rules Com., Off. of Sen.
Floor Analyses, Unfinished Business Analysis of Sen.
Bill No. 420 (2003-2004 Reg. Sess.) as amended Sept. 9,
2003, pp. 6-7, italics added.)
Of relevance to this appeal, the MMPA added
section 11362.775, which provides: "Qualified patients,
persons with valid identification cards, and the designated
primary caregivers of qualified patients and persons with
identification cards, who associate within the State of
California in order collectively or cooperatively to
cultivate marijuana for medical purposes, shall not solely
on the basis of that fact be subject to state criminal
sanctions under Section 11357 [possession of marijuana],
11358 [cultivation of marijuana], 11359 [possession for
sale], 11360 [transportation], 11366 [maintaining a place
for the sale, giving away or use of marijuana], 11366.5
[making available premises for the manufacture, storage
or distribution of controlled substances], or 11570
[abatement of nuisance created by premises used for
manufacture, storage or distribution of controlled
substance]."
The Court of Appeal in People v. Urziceanu (2005)
132 Cal.App.4th 747, 785 [33 Cal. Rptr. 3d 859]
(Urziceanu) noted that "[t]his new law represents a
dramatic change in the prohibitions on the use,
distribution, and cultivation of marijuana for persons who
are qualified patients or primary caregivers ... . Its
specific itemization of the marijuana sales law indicates it
contemplates the formation and operation of medicinal
marijuana cooperatives that would receive reimbursement
for marijuana and the services provided in conjunction
with the provision of that marijuana."
The MMPA also elaborates on the definition of
primary caregiver in the CUA. It first retains the
definition of a primary caregiver contained in the CUA:
"the individual, designated by a qualified patient ... who
has consistently assumed responsibility for the housing,
health, or safety of that patient or person ... ." (§ 11362.7,
subd. (d).) The subdivision goes on to provide three
examples of persons who would qualify as primary
caregivers under this definition: (1) Owners and operators
of clinics or care facilities; (2) "An individual who has
been designated as a primary caregiver by more than one
qualified patient or person with an identification card, if
every qualified patient or person with an identification
card who has designated that individual as a primary
caregiver resides in the same city or county as the
primary caregiver"; and (3) "An individual who has been
designated as a primary caregiver by a qualified patient
or person with an identification card who resides in a city
or county other than that of the primary caregiver, if the
individual has not been designated as a primary caregiver
by any other qualified patient or person with an
identification card." (§ 11362.7, subd. (d)(1)-(3).)
The MMPA also specifies that collectives,
cooperatives or other groups shall not profit from the sale
of marijuana. (§ 11362.765, subd. (a) ["nothing in this
section shall authorize ... any ... group to cultivate or
distribute marijuana for profit"].)
C. Attorney General Guidelines
Section 11362.81, subdivision (d) provides: "[T]he
Attorney General shall develop and adopt appropriate
guidelines to ensure the security and nondiversion of
marijuana grown for medical use by patients qualified
under the [CUA]."
On August 25, 2008, the California Attorney General
issued "Guidelines for the Security and Non-Diversion of
Marijuana Grown for Medical Use" (A.G. Guidelines)
<http://ag.ca.gov/cms_attachments/press/pdfs/n1601_medicalmarijuanaguidelines.(as of Aug. 18, 2009). The A.G. Guidelines's stated
purpose is to "(1) ensure that marijuana grown for
medical purposes remains secure and does not find its
way to non-patients or illicit markets, (2) help law
enforcement agencies perform their duties effectively and
in accordance with California law, and (3) help patients
and primary caregivers understand how they may
cultivate, transport, possess, and use medical marijuana
under California law." (Id. at p. 1.)
Several of the guidelines are helpful to our analysis.
First, the A.G. Guidelines reiterate the "consistency"
element of the definition of primary caregiver contained
Page 5
in both the CUA and MMPA: "Although a 'primary
caregiver who consistently grows and supplies ...
medicinal marijuana for a section 11362.5 patient is
serving a health need of the patient,' someone who
merely maintains a source of marijuana does not
automatically become the party 'who has consistently
assumed responsibility for the housing, health, or safety'
of that purchaser." (A.G. Guidelines, supra, at p. 4.)
Further, the A.G. Guidelines provide a definition of
"cooperatives" and "collectives." A cooperative "must
file articles of incorporation with the state and conduct its
business for the mutual benefit of its members. [Citation.]
No business may call itself a 'cooperative' (or 'co-op')
unless it is properly organized and registered as such a
corporation under the Corporations or Food and
Agriculture Code. [Citation.] Cooperative corporations
are 'democratically controlled and are not organized to
make a profit for themselves, as such, or for their
members, as such, but primarily for their members as
patrons.' [Citation.]" (A.G. Guidelines, supra, at p. 8.)
Further, "[c]ooperatives must follow strict rules on
organization, articles, elections, and distribution of
earnings, and must report individual transactions from
individual members each year." (Ibid.)
A collective is "'a business, farm, etc., jointly owned
and operated by the members of a group.' [Citation.]"
(A.G. Guidelines, supra, at p. 8.) Thus, "a collective
should be an organization that merely facilitates the
collaborative efforts of patient and caregiver
members--including the allocation of costs and
revenues." (Ibid.) Further, the A.G. Guidelines opine,
"The collective should not purchase marijuana from, or
sell to, non-members; instead, it should only provide a
means for facilitating or coordinating transactions
between members." (Ibid.)
The A.G. Guidelines further provide guidelines for
the lawful operation of cooperatives and collectives. They
must be nonprofit operations. (A.G. Guidelines, supra, at
p. 9.) They may "acquire marijuana only from their
constituent members, because only marijuana grown by a
qualified patient or his or her primary caregiver may
lawfully be transported by, or distributed to, other
members of a collective or cooperative ... . Nothing
allows marijuana to be purchased from outside the
collective or cooperative for distribution to its members.
Instead, the cycle should be a closed-circuit of marijuana
cultivation and consumption with no purchases or sales to
or from non-members. To help prevent diversion of
medical marijuana to non-medical markets, collectives
and cooperatives should document each member's
contribution of labor, resources, or money to the
enterprise. They should also track and record the source
of their marijuana." (Id. at p. 10, italics added.)
Distribution and sales to nonmembers is prohibited:
"State law allows primary caregivers to be reimbursed for
certain services (including marijuana cultivation), but
nothing allows individuals or groups to sell or distribute
marijuana to non-members. Accordingly, a collective or
cooperative may not distribute medical marijuana to any
person who is not a member in good standing of the
organization. A dispensing collective or cooperative may
credit its members for marijuana they provide to the
collective, which it may then allocate to other members.
[Citation.] Members also may reimburse the collective or
cooperative for marijuana that has been allocated to them.
Any monetary reimbursement that members provide to
the collective or cooperative should only be an amount
necessary to cover overhead costs and operating
expenses." (A.G. Guidelines, supra, at p. 10.)
Finally, the A.G. Guidelines provide guidance to law
enforcement as to whether activities comply with the
CUA and MMPA. In this regard, the guidelines
specifically address "Storefront Dispensaries." (A.G.
Guidelines, supra, at p. 11, boldface omitted.) The
Attorney General is of the opinion that while
"dispensaries, as such, are not recognized under the law,"
"a properly organized and operated collective or
cooperative that dispenses medical marijuana through a
storefront may be lawful under California law, but ...
dispensaries that do not substantially comply with the
guidelines [covering collectives and cooperatives] are
likely operating outside the protections of [the CUA] and
the MMP[A], and ... the individuals operating such
entities may be subject to arrest and criminal prosecution
under California law. For example, dispensaries that
merely require patients to complete a form summarily
designating the business owner as their primary
caregiver--and then offering marijuana in exchange for
cash 'donations'--are likely unlawful." (A.G. Guidelines,
supra, at p. 11, italics added.)
"While the Attorney General's views do not bind us
[citation], they are entitled to considerable weight
[citation]." (Freedom Newspapers, Inc. v. Orange County
Employees Retirement System (1993) 6 Cal.4th 821, 829
Page 6
[25 Cal. Rptr. 2d 148, 863 P.2d 218].)


As with the identification card provisions of the
MMPA addressed in County of San Diego, section
11362.775, relating to cooperatives and collectives, did
not constitute an amendment of the CUA as it was not
intended to, and did not, alter the rights provided by the
CUA. Rather, it identifies groups that may lawfully
distribute medical marijuana to patients under the CUA.
Thus, it was designed to implement, not amend the CUA.
Like the identification card provisions, the defense
against arrest and prosecution given to qualified
individuals who establish cooperatives and collectives to
deliver medical marijuana under the CUA "amended
provisions of the Health and Safety Code regarding
regulation of drugs adopted by the Legislature, not
provisions of the CUA. Because the MMP[A]'s
[cooperative and collective] program has no impact on
the protections provided by the CUA, we reject [the
People's] claim that those provisions are invalidated by
article II, section 10, subdivision (c), of the California
Constitution." (County of San Diego, supra, 165
Cal.App.4th at p. 831.)
Indeed, the CUA itself directed the state to create a
statutory plan to provide for the safe and affordable
distribution of medical marijuana to qualified patients. (§
11362.5, subd. (b)(1)(C).) Thus, in enacting section
11362.775 the Legislature created what the CUA
expressly contemplated and did not unconstitutionally
amend the CUA.


B. CannaHelp and Its Operators Are Not Primary
Caregivers
As discussed, ante, even after the enactment of the
MMPA, a primary caregiver is required to be someone
who (1) has been designated as such by one exempted
under the CUA and MMPA; and (2) "has consistently
assumed responsibility for the housing, health, or safety
of that patient or person." (§ 11362.7, subd. (d); see
Mentch, supra, 45 Cal.4th at p. 283; A.G. Guidelines,
supra, at p. 4.) While the MMPA identifies certain
individuals who can be valid primary caregivers, i.e.,
persons designated by more than one person, all of whom
reside in the same city or county, the person (or entity)
must still meet the requirement of "consistently"
assuming responsibility for the housing, health or safety
of that person. (§ 11362.7, subd. (d); see Mentch, supra,
at p. 283; A.G. Guidelines, supra, at p. 4.) As our high
court recently explained, this entails an "existing,
established relationship," distinct from the provision of
medical marijuana itself. (Mentch, supra, at pp. 283-284.)
Individuals operating a marijuana-buying cooperative do
not, by providing medical patients with medicinal
marijuana, consistently assume responsibility for the
health of those patients. (People ex rel. Lungren v. Peron
(1997) 59 Cal.App.4th 1383, 1390 [70 Cal. Rptr. 2d 20];
Mentch, supra, 45 Cal.4th at p. 284 [citing People ex rel.
Lungren v. Peron with approval].)
Thus, a storefront dispensary and its operators do not
qualify as primary caregivers simply because a qualified
medical marijuana patient has so designated them.
Moreover, the provision of medical marijuana, even if
done on a "consistent" basis, does not make one a
"primary caregiver." There must be evidence of an
existing, established relationship, providing for housing,
health or safety "independent of the administration of
medical marijuana." (Mentch, supra, 45 Cal.4th at p.
284.) There is no evidence CannaHelp or defendants had
such a relationship with the customers who purchased
medical marijuana from them. A storefront dispensary
that merely provides walk-in customers with medical
marijuana does not possess the type of "consistent"
relationship necessary to achieve primary caregiver
status. Accordingly, the court erred in finding CannaHelp
qualified as a primary caregiver under the CUA and
MMPA.
However, that conclusion does not end our inquiry,
as we must analyze whether other facts show there was
probable cause to issue the search warrant. Specifically,
we must examine (1) whether the facts showed
defendants were operating CannaHelp as a cooperative or
collective; (2) whether the "good faith" exception to the
exclusionary rule applies; and (3) whether Detective
Page 9
Garcia was qualified to author the search warrant.
C. CannaHelp As Cooperative or Collective
As noted, ante, in enacting section 11362.775, the
Legislature "exempted those qualifying patients and
primary caregivers who collectively or cooperatively
cultivate marijuana for medical purposes from criminal
sanctions for possession for sale, transportation or
furnishing marijuana, maintaining a location for
unlawfully selling, giving away, or using controlled
substances, managing a location for the storage,
distribution of any controlled substance for sale, and the
laws declaring the use of property for these purposes a
nuisance. [¶] ... Its specific itemization of the marijuana
sales law indicates it contemplates the formation and
operation of medicinal marijuana cooperatives that
would receive reimbursement for marijuana and the
services provided in conjunction with the provision of
that marijuana." (Urziceanu, supra, 132 Cal.App.4th at
p. 785, italics added.) Thus cooperatives and collectives
operated by primary caregivers and/or medical marijuana
patients may have a defense to certain narcotics offenses,
including those charged against defendants in this case.
In Urziceanu, the defendant was charged with
conspiracy to sell marijuana. The defendant sought to
present evidence that he had established a medical
marijuana cooperative called "FloraCare" and could
legally distribute marijuana to individuals who had
medical certificates for marijuana. The trial court
sustained objections to the evidence, and the Court of
Appeal reversed. In doing so, the court noted "defendant
produced substantial evidence that suggests he would fall
within the purview of section 11362.775. He presented
the court with evidence that he was a qualified patient,
that is, he had a qualifying medical condition and a
recommendation or approval from a physician. His
codefendant ... submitted that same evidence as to
herself. Defendant further presented evidence of the
policies and procedures FloraCare used in providing
marijuana for the people who came to him, including the
verification of their prescriptions and identities, the fact
that these people paid membership fees and reimbursed
the defendant for costs incurred in the cultivation through
donations. Further, he presented evidence that members
volunteered at the cooperative." (Urziceanu, supra, 132
Cal.App.4th at p. 786.) In Urziceanu, the collective
operated openly with formal, documented practices and
procedures for signing up and verifying the eligibility of
cooperative members. (Id. at pp. 763-766, 786.)
The Court of Appeal in Urziceanu concluded these
facts presented "substantial evidence that suggests [the
defendant] would fall within the purview of section
11362.775." (Urziceanu, supra, 132 Cal.App.4th at p.
786.) Accordingly, the Court of Appeal reversed, holding
the court erred in not allowing the defendant to use
section 11362.775 as a defense to the charge of
conspiracy to sell marijuana. (Urziceanu, supra, at p.
786.)
Here, however, we are not charged with determining
whether the facts are sufficient to allow defendants to
raise section 11362.775 as a defense at trial. Rather, we
must determine if the facts stated in Detective Garcia's
search warrant affidavit gave probable cause to believe
defendants were not operating within the confines of the
CUA and MMPA. We conclude that Detective Garcia's
search warrant affidavit provided probable cause
defendants were not operating within the law. We further
conclude that even if it did not, a reasonable person
would have believed probable cause existed, and
therefore the good faith exception to the exclusionary rule
applies.
We find persuasive the A.G. Guidelines's opinion
that if a storefront dispensary managed by primary
caregivers or medical marijuana patients is truly
operating as a cooperative or collective, it and its
operators might have a defense to arrest and prosecution
under section 11362.775. Nothing in section 11362.775,
or any other law, prohibits cooperatives and collectives
from maintaining places of business. If defendants can
produce facts sufficient to show they were operating a
true cooperative or collective, and that they were
otherwise in substantial compliance with the CUA and
MMPA, they may be able to raise section 11362.775 as a
defense at trial. However, our analysis is confined to the
facts as described in the search warrant affidavit. Those
facts and application of relevant law, including the A.G.
Guidelines, provide a reasonable suspicion to believe
defendants were not operating within the CUA and
MMPA.
First, it appears that purchasers were merely required
to "complete a form summarily designating the business
owner as their primary caregiver ... ." (A.G. Guidelines,
supra, at p. 11.) There was no evidence purchasers had
any other relationship with CannaHelp or that they were
actual members of a cooperative or collective. These
Page 10
facts are a strong indication of unlawful activity. (Ibid.)
Moreover, the evidence showed at least some of the
marijuana CannaHelp offered for sale was purchased
from an outside source, Silva, as opposed to from one or
more of its own members. (Id. at p. 10.) Further, although
it was determined after the fact that CannaHelp was
operating at a loss, the large number of transactions, the
price of the marijuana, and the cash-only nature of the
business provided reasonable grounds for Detective
Garcia to believe CannaHelp was not operating as a
nonprofit enterprise, also a requirement for operation of
cooperatives and collectives. (Id. at p. 9; § 11362.765,
subd. (a).) Thus, even if facts discovered after the warrant
was issued showed a lack of probable cause, Detective
Garcia and the executing officers had reasonable grounds
to believe they had probable cause at the time the search
warrant issued, and the "good faith" exception to the
exclusionary rule applies. (United States v. Leon, supra,
468 U.S. at pp. 922-923.)
We express no opinion as to whether defendants
were in substantial compliance with section 11362.775
and the A.G. Guidelines, and whether, as in Urziceanu,
there is sufficient evidence for defendants to raise section
11362.775 as a defense at trial. Rather, our only task is to
determine whether the facts, as known to Detective
Garcia at the time the search warrant issued,
demonstrated probable cause to believe defendants were
not in compliance with the CUA and MMPA. Because
we give great deference to the magistrate's decision to
issue a search warrant (Illinois v. Gates, supra, 462 U.S.
at p. 238) and it is our duty "to save the warrant if [we]
can in good conscience do so ... ." (Caligari v. Superior
Court, supra, 98 Cal.App.3d at pp. 729-730), we
conclude the court erred in quashing the search warrant
and dismissing the charges against defendants.


DISPOSITION
The judgment is reversed.
Benke, Acting P. J., and McIntyre, J., concurred.

 

[Hydrosun]

Well after reading the opinion I would have to say that the AG wrote guidlines that frustrated the legislation, not facilitated the supply of MMJ to qualified patients at affordable prices.

How can the state justify the limiting aspects of the AGs guidelines in face of the statutory mandate? This Appeals court could have easily drawn attention to the flaws of the AGs guidelines, instead they used the illegal AG guidelines to further frustrate statutory and voter intent. This is a very sad example of the state deliberately trampling on the liberties of all.

Peace,

 

[Blue Dot]

Well after reading the opinion I would have to say that the AG wrote guidlines that frustrated the legislation, not facilitated the supply of MMJ to qualified patients at affordable prices.

How can the state justify the limiting aspects of the AGs guidelines in face of the statutory mandate? This Appeals court could have easily drawn attention to the flaws of the AGs guidelines, instead they used the illegal AG guidelines to further frustrate statutory and voter intent. This is a very sad example of the state deliberately trampling on the liberties of all.

Peace,

It's not like the AG came up with these guidelines out of the blue. There was much consideration and much input, thus the AG's guidelines should be given considerable weight.

You really think your opinion of how 215 should be is to be given equal weight as the AG? He's the top cop of the land, not some smoker, grower, or D owner.