Southern California Defense Blog

On October 19th, the United States Department of Justice issued a memorandum to the United States Attorneys in California detailing a shift in the Department’s policy regarding the investigation and prosecution of federal drug offenses in California. Although the memo is favorable to California’s marijuana laws, in no way does it permit the cultivation, possession, use or distribution of marijuana. The federal Controlled Substances Act continues to make those types of acts illegal.

Specifically, the memo dictates that “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana” should not be the Department’s main focus. In fact, the Justice Department will continue to prosecute those individuals or entities relying on state marijuana laws as a pretext for the illegal distribution of marijuana. Most importantly, the memo states that individuals who are in compliance with medical marijuana laws can still be prosecuted in federal court if it serves an important federal interest. Clearly, this exception leaves the door wide open to prosecute individuals regardless of the new Justice Department guidelines.

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Why Having an Experienced Drug Offense Attorney Can Mean the Difference Between Jail and Freedom

A recent California Court of Appeals decision, People v. Archer, held that, in medical marijuana possession cases, the jury must be informed that the patient has a right to possess an amount that is reasonably related to the patient’s current medical needs.

The California Legislature recently enacted Health and Safety Code section 11362.77 of Medical Marijuana Program Act (MMPA), which provides that the “legal limit” for possessing medical marijuana was eight ounces. However, before the legislatures enacted section 11362.77, the only relevant section as to how much marijuana a medical marijuana patient could possess (or cultivate) was section 11362.5 of the California Health and Safety Code. Under section 11362.5, subdivision (d) of the Heath and Safety Code, the only qualification concerning the amount of marijuana that a medical marijuana patient could possess (or cultivate) was that the marijuana be for the "personal medical purposes" of the patient. (section 11362.5, subd. (d).)

Therefore, assuming section 11362.77, subdivision (a) of the MMPA, is unconstitutional, as the parties jointly contended, the relevant law on the issue of the amount of marijuana Archer could possess would be section 11362.5 of the California Health and Safety Code and the cases interpreting that statute.

As noted, courts have interpreted this qualification to mean a reasonable amount: "[T]he quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient's current medical needs. What precisely are the 'patient's current medical needs' [is], of course . . . a factual question to be determined by [the jury]." (People v. Trippet, 56 Cal.App.4th at p. 1549.)

Here, the evidence in the record showed Archer was using about a half pound of medical marijuana each month in April 2006, mostly by ingesting it, and that he possessed about 1.72 pounds of marijuana—or about a three-month supply of medical marijuana—when police entered his home and confiscated it and his plants. There was no evidence Archer possessed the 1.72 pounds of marijuana for purposes other than for his own personal medical use.

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The Issue of Possession of Marijuana for Personal Medical Needs, Versus, Possession of Marijuana for the Needs of Others

Defendant, Nathaniel Archer, was found guilty of cultivation of marijuana in violation of Health and Safety Code section 11358, a felony, and of simple possession of marijuana in violation of section 11357(a). On appeal, the parties were in agreement that the trial court erred when it included the numerical limits set forth in section 11362.77, subdivision (a) of the Medical Marijuana Program Act (MMPA) in instructing the jury regarding the amount of medical marijuana that Archer could lawfully possess and/or cultivate because this section unlawfully amends the Compassionate Use Act (section 11362.5) (CUA) passed by voters in 1996 as Proposition 215. On appeal, the parties disagreed as to whether the error was harmless.

Defendant contented that because he possessed and/or cultivated an amount of marijuana in excess of the numerical limits set forth in section 11362.77, subdivision (a), his convictions were not based on a determination of his medical marijuana needs of and at least two of his "patients" who had designated him as their "primary caregiver" within the meaning of section 11362.5, subdivision (e).

The People argued that because Defendant admitted growing marijuana for at least four other people, in addition to himself, and because as a matter of law he does not qualify as a primary caregiver for the only two qualified patients he identified at trial. The Defendant did not present any evidence to show he was the primary caregiver for any of them, including the two that testified on his behalf at trial. As such, the People argued that the instructional error was harmless beyond a reasonable doubt. The Court agreed.

Continue reading "A Common Legal Issue in the Context of Medical Marijuana Litigation" »

The Los Angeles Collective Association and the Green Oasis dispensary, which is made up of medical marijuana collectives, has filed a lawsuit against the city of Los Angeles’ moratorium that seeks to control the sale of medical marijuana. They argue that the moratorium is too vague and its extension into mid-March is in violation of state law.

Robert A. Kahn, an attorney representing the Los Angeles Collective Association and Green Oasis’ attorney , believes that the City Council’s failure to properly extend the ban and its extension past the state limit of 24 months make the moratorium legally unenforceable. The City Council’s Planning Committee has been working on an ordinance that would replace the moratorium; however, it is still months from completion. Nonetheless, the Los Angeles attorney’s office, the district attorney’s office and the Los Angeles Police Department have all emphasize that selling medical marijuana over the counter is illegal under California state law.

Continue reading "Lawsuit Filed in Attempt to Overturn City Council Decision to Limit Medical Marijuana Dispensaries" »

An officer with probable cause to search is not prevented from doing so by someone presenting a medical marijuana card or a medical marijuana prescription.

Various courts have held that, once the officer has probable cause, the officer is entitled to continue to search and investigate, and determine whether the subject of the investigation is in fact possessing the marijuana for personal medical needs, and is adhering to the eight-ounce limit on possession.

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Why Hiring an Experienced Criminal Defense Firm Can Assure You Are Given Access to All Available Court Programs

Defendant, Oscar Armando Ochoa pled guilty to possessing cocaine after the trial court denied his motion to defer entry of judgment under penal code §1000. On appeal in California, Mr. Ochoa argued that the court erred in finding that his January 2006 conviction for possession of marijuana occurring more than two years before his current offense did not render him ineligible for deferred entry of judgment under penal code §1000.

The prosecution took the position that he was ineligible presumably because he was precluded from satisfying the condition that he “have no conviction for any offense involving controlled substances prior to the alleged commission of the charged offense.” PC §1000 (a)(1).

The California Court of Appeal, Third Appellate District disagreed with the prosecution. It held that Mr. Ochoa’s previous conviction for marijuana possession should have been destroyed after two years as required by Health & Safety Code §11361.5 and §11361.7 (a). Therefore, the previous marijuana charge could not have been considered by the trial court in determining Mr. Ochoa’s eligibility for deferred entry of judgment pursuant to penal code §1000.

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Thoughts by a Wallin & Klarich Criminal Defense Attorney

A Morro Bay pot dispensary owner was sentenced to one year and one day in prison by a federal judge in Los Angeles, according to a published report on latimes.com. Charles Lynch, 47, was prosecuted for illegally distributing marijuana from his Central Coast Compassionate Caregivers facility, despite having the blessing of Morro Bay’s mayor, city attorney and other civic leaders. His California drug crime case has become a symbol, nationwide, of the growing rift between state and federal medical marijuana laws.

Cultivating, using and selling doctor-prescribed marijuana is allowed in California and about a dozen other states, but such activities are banned entirely under federal law. Lynch’s defense attorneys attempted to portray him as a distributor of medicine to the sickly who were seeking relief from chronic illnesses. The prosecution painted him as a common drug dealer, who often sold to underage clientele and perfectly healthy individuals.

The medical marijuana issue is one that is being debated across our nation. As states continue to legislate the matter and make marijuana dispensaries legal and possession and consumption of marijuana for medical purposes also legal, the question of when and how federal drug charges get enforced is being considered.

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He Will Need an Experienced California Criminal Defense Attorney

A Mexican national was arrested about 200 yards off of Imperial Beach by U.S. Border patrol officials, according to an article by Tony Perry on the June 9th, 2009 Los Angeles Times website.

The man was allegedly trying to smuggle marijuana into the United States via his surfboard, which he was seen on paddling off the shores of Imperial Beach. When agents ordered the surfer to come ashore, he threw a blue duffel bag into the water, the Border Patrol said. That duffel bag later washed ashore where officials discovered that it contained five packages of marijuana with an estimated street value of $74,400.

The marijuana weighed approximately 25 pounds. The man, whose name was not released by officials, admitted to being in the country illegally.

Possession of drugs in California (or drug paraphernalia) can be a felony or a misdemeanor in California, depending on the amount and type of drugs that the individual possesses. Possessing large amounts of drugs, or cultivating or selling drugs, is more likely to be a felony with serious penalties attached. In this instance, you can add federal immigration charges to the mix, in addition to the drug charges.

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U.S. District Judge Delays Sentencing for Convicted Marijuana Distributor Represented by Criminal Defense Attorney

A federal judge recently delayed the sentencing of a Morro Bay man on March 24, 2009, who was facing drug charges for running a medical marijuana dispensary, according to the LA Daily Journal. Last year, Charles C. Lynch was found guilty of distributing over 100 kilograms of marijuana from his Central Coast Compassionate Caregiver dispensary, and is facing up to five years in federal prison.

With the U.S. Drug Enforcement Administration conducting over 80 raids on medical marijuana dispensaries in the past three years, distributing marijuana in what arguably may be a legal manner can have serious consequences. Although U.S. Attorney General Eric Holder said “federal agents would only target marijuana dispensaries if their operators violated both federal and state law,” prosecutors are bringing legal actions against California residents who are in compliance with California law.

Due to these discrepancies, U.S. District Judge George H. Wu decided to delay Lynch’s sentencing and told prosecutors that before making a decision he would “need to know-in writing- whether the U.S. Department of Justice has changed its policy regarding the prosecution of medical marijuana dispensary operations,” and how that change would affect Lynch’s sentencing.

If you or someone you know is facing similar charges regarding medical marijuana in California, call Wallin & Klarich. Wallin & Klarich has over 30 years of experience in drug cases and are here to help you. Call 1-888-280-6839 to speak to one of Wallin & Klarich’s aggressive and experienced criminal defense attorneys in California today. Also visit us on the web at www.wklaw.com.

Department Of Motor Vehicles Officials Say California Drivers Cannot Lose Their License Just Because They Have A Medical Marijuana Prescription

Medical marijuana prescription holders are breathing a little easier after the Department of Motor Vehicles issues a training memo which states California drivers cannot lose their license just because they have a medical marijuana prescription. A revised Department of Motor Vehicles training memo instructs agency staff to treat medical marijuana like any other prescription drug when considering whether to renew a driver’s license. The DMV claims that the revisions do not represent a new policy but merely put into writing practices already in place. California DMV license matters regarding medical conditions can be complicated, especially when your driving privileges are being compromised.

However medical marijuana advocates claim that drivers were being denied renewal of their license solely on the basis of holding a medical marijuana prescription. Americans for Safe Access, a medical marijuana advocacy group, sued the DMV in November on behalf of 53-year-old women who said the DMV refused to renew her license because she was a medical marijuana patient. Her attorney said DMV documents cited his client’s marijuana use as the reason for denying her license, even though she has had a clean driving record for 37 years and was not accused or convicted of any drug crime in California whatsoever.

The DMV memo however still gives the agency leeway to deny licenses to drivers addicted to drugs or alcohol.

If you or a loved one have been charged with a crime, it is imperative that you hire an aggressive, experienced criminal defense firm. Hiring an experienced California criminal defense law firm can greatly increase your chances of keeping your freedom, and ensuring you receive the lowest possible sentence. The attorneys at Wallin & Klarich have been helping people for over 30 years.

Please feel free to contact Wallin & Klarich to discuss your case. You can reach us 24 hours a day, 7 days a week at 1-888-280-6839, or go to our website at www.wklaw.com for more information.

What Happens If I’m A Juvenile And I’m Caught With Marijuana In My Possession? What Are The Consequences If I’m Convicted?

A conviction for possession of marijuana, even for a small amount, can have serious consequences. This is especially true if you are under the age of 18. If you are under the age of 18, your case will be handled in the juvenile courts. If you are convicted of marijuana possession as a juvenile, the court is required to impose a myriad of different penalties for the juvenile criminal offense committed. These penalties include attending a school program approved by a probation officer without any absences, counseling, and a curfew. These are just the minimum penalties. The juvenile court can go even farther.

According to one case, In re Walter P., the court can confine you to your home for a specified period of time. During this time, you are not allowed to leave the house unless it is to go school or you are accompanied by a parent.

You may think that possession is a rather minor crime, but it carries with it some serious penalties as a drug crime in California. That is why it is imperative that you hire a competent defense attorney for this and other criminal matters.

The attorneys at Wallin & Klarich have over 30 years experience in misdemeanor offenses as well as other criminal defense matters and can aggressively and effectively represent you in court to fight to get your case resolved to your satisfaction.

For a free consultation to discuss your offense please call us at 888.280.6839. Our top California criminal defense attorneys are available 24 hours a day, seven days a week to answer any of your questions. You can also visit us at www.wklaw.com for more information.

According to Attorney General Bill Lockyer, concentrated cannabis, or hashish, is included within the meaning of “marijuana” and may be used for medical purposes under Proposition 215.

Lockyer told Menocino County Sheriff-Coroner Anthony J. Craver that voters must have intended to include all forms of cannabis when they passed the “Compassionate Use Act of 1996.”

Implementation of the Compassionate Use Act of 1996 has been difficult because federal authorities continue to enforce conflicting federal law which does not recognize any legitimate uses for cannabis.

Hashish is distinguished by its high level of tetrahydrocannabinol (THC). THC is the most active pharmacological ingredient in marijuana. Ordinary marijuana has a THC level of between five and 60 percent, while the concentrated from Hashish may have a THC level of as high as 70 percent.

The attorney general noted that under Proposition 215, if a patient or caregiver “possesses or cultivates marijuana for the patient’s medical purposes upon the recommendation or approval of a physician,” that person is exempt from prosecution under Health and Safety Code Sections 11357 and 11358.

Health and Safety Code Section 11357 makes possession of hashish a “wobbler,” punishable by up to three years in prison, and makes possession of up to 28.5 grams of marijuana, “other than concentrated cannabis,” a misdemeanor carrying a fine of no more than $100. An exception is made for possession of ordinary marijuana on school grounds, which carries a fine of up to $500 and/or a maximum of 10 days in jail.

Health and Safety Code Section 11358 makes cultivation of marijuana, in any form, a felony punishable by up to three years in prison as a drug crime.

The statutory definition of marijuana for purposes of Proposition 215 “plainly includes concentrated cannabis,” Lockyer wrote. There is no reason to interpret “marijuana” differently in Proposition 215 than in other laws, the attorney general explained, adding that had the authors of the initiative intended to exclude hashish from the definition, they would have used language similar to the “other than concentrated cannabis” (Section 11357).

“Of course, if concentrated cannabis were not ‘marijuana’ in the first instance, there would be no need in section 11357 to employ the phrase ‘other than concentrated cannabis,’” the attorney general explained. He added that there was nothing in the ballot materials for the initiative that indicated intent to treat hashish in a different manner than the less potent forms of the drug.

For a free consultation to discuss your drug offense or eligibility for drug treatment please call us at (888) 280-6839. Our attorneys are available 24 hours a day, seven days a week to answer any of your questions. You can also visit us at www.wklaw.com for more information.

A recent death of a young female college student makes clear that agreeing to work with the police in exchange for some possible leniency in your criminal case can have deadly consequences.

A young woman in her 2nd year of college was found in possession of marijuana. The police told her that if she “worked with them” they would recommend to the District Attorney to dismiss charges against her. She did not consult with a lawyer. Instead she agreed to work with the police. She agreed to set up two suspected drug dealers by agreeing to sell them cocaine as well as a handgun.

The young lady was given no “training” in how to conduct her “snitch duties”. The young lady did what the police told her. The young lady was found dead two days later when the police officers assigned to “follow her” were unable to properly do their job and lost contact with her.

Often people accused of crimes are told by law enforcement that they are their “friends” and they can arrange for lower bail for them or a more lenient sentence if they agree to “set up” other accused persons. It is almost NEVER a good idea to work with law enforcement. It is NEVER a good idea to make any such decision without first consulting with a criminal defense attorney who knows how the game is played.

At Wallin and Klarich we have been helping people facing serious criminal matters for almost thirty years. When you find yourself in need contact us toll free 888-749-0034 and visit us at www.wklaw.com.

The US Supreme Court’s recent opinion in Morse v. Frederick brings to the forefront how far a public school may properly go in restricting student speech.

In this case, Joseph Frederick was a student at a public high school in Juneau, Alaska, and, on January 24, 2002, the Olympic torch was due to pass in front of Mr. Frederick’s high school, en route to the winter games in Salt Lake City, Utah. Students at the school were permitted by school officials to stand on the sidewalk outside the school to watch the torch relay, which took place during regular school hours. As the torch neared the school, Mr. Frederick, and other students, unfurled a 14 foot banner that read “BONG HITS 4 JESUS.” Principal Deborah Morse saw the sign, which was visible to other students lining the sidewalks on either side of the street in front of the school, and approached Mr. Frederick and the other students and instructed them to take the banner down. The other students complied, but Mr. Frederick did not. Mr. Frederick was summoned to Ms. Morse’s office and suspended for 10 days from school. Ms. Morse stated that she acted consistent with a school policy that expressly forbids students from advocating “the use of substances that are illegal to minors.”

The first issue the Court addressed was whether the activity was a “school activity,” thereby permitting Ms. Morse to apply school rules to Mr. Frederick’s conduct. The Court had no difficulty in determining that the activity was a school activity, given the fact that the students were assembled during the school day and were supervised in the activity by school officials.

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The recent opinion of the US Court of Appeals for the Ninth Circuit in Raich v. Gonzalez, (March 14, 2007), once again draws the spotlight on the conflicting provisions of federal drug laws, which all but prohibit possession of marijuana under any circumstances, and California’s laws that permit the use of “medical marijuana” upon a doctor’s recommendation. Unfortunately, this case does not provide a resolution to this conflict in the laws, and it appears that it will take an act of Congress, if indeed Congress is willing to act on this issue, before there will be any consistency between California’s medical marijuana laws and the federal drug laws.

More than ten years ago, the voters in California passed Proposition 215. Proposition 215, known as the “Compassionate Use Act of 1996,” was enacted to ensure that “seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.” As such, the law states that it is the intent of the law that “patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.” It was the stated hope that the enacting this law would “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.”

While ten other states, i.e., Alaska, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Rhode Island, Vermont, and Washington, have followed California’s lead in this regard by passing laws that decriminalize medical marijuana to some varying degree or another, the United States government has not seen fit to follow suit. Under the federal Comprehensive Drug Abuse Prevention and Control Act of 1970, marijuana is classified as a “Schedule I drug” meaning that, according to federal authorities, marijuana has a “high potential for abuse” and, furthermore, it “has no currently accepted medical use in treatment in the United States, and, lastly, marijuana has a “lack of accepted safety for use … under medical supervision.” The federal law provides for stiff criminal penalties for anyone who might “possess” or “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense” marijuana. Simple possession of marijuana is generally a misdemeanor under federal law and, on conviction; one could be punished by imprisonment for up to one year and/or a fine of at least $1,000.00. 21 U.S.C. § 844(a). The fact that such a sanction exists does provide a person contemplating use of “medical marijuana” here in California, or in other states with “medical marijuana” laws, with some pause for thought, since he federal law does not permit a person to possess marijuana “upon the recommendation of a physician” and even if one has such a recommendation, such fact likely would not serve to shield one from a federal prosecution.

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