CALAVERAS: The most significant medical marijuana case to be heard in Calaveras County and perhaps the entire Motherlode in a over a decade begins in earnest Monday. Jay Smith is facing felony distribution, possession for sales, and cultivation of marijuana charges. His preliminary hearing is set to be heard in Department 3 before retired San Joaquin County visiting judge Hon. James E. Cadle at 1:30 pm. The defense has filed a brief asserting Smith's rights under state law as a medical marijuana patient and collective grow operator. The defense outlines statutory and case law and requests case dismissal. The defense has also filed a motion to compel the District Attorney to provide discovery, contending that the prosecution is failing to provide copies of the evidence in this case. No response by the DA was filed as of last week.
At the preliminary hearing, the prosecution must show that there is probable cause to believe that a crime was committed and probable cause that Smith likely did committed that crime. If the judge agrees with the prosecution, the case will be bound over for trial and the defendant held to answer to the charges.
Click below to view a complete summary of the case.
The base elements of the case are as follows:
Calaveras Narcotics Enforcement Deputy Steve Avila contacted Jay Smith, of K-Care Collective, to inquire as to membership in the collective and to obtain medicinal marijuana to treat medical conditions.
Avila used the legitimate medical marijuana recommendation of Robert Shaffer in order to pose as a legitimate patient. Shaffer had previously been arrested on marijuana charges and Avila obtained Shaffer's recommendation from the evidence in that case. As part of the ruse, Avila slightly altered the legitimate recommendation, changing the birth date.
On Jan. 4, after Smith verified the recommendation with Shaffer's doctor, Deputy Robert Huffman, posing as Shaffer, met with Smith in the Valley Oaks Center parking lot in Valley Springs . After completing the membership application, Huffman obtained one ounce of medicinal cannabis in exchange for $270. Once the transaction was complete, narcotics officers arrested Smith on distribution charges and he was booked into the county jail. Smith is currently out on bond.
After the arrest, narcotics officers executed search warrants at the homes of Larry and Michell Bridges and Smith (cooperators of K-Care) locating over 2 pounds of marijuana and 20 plants.
Smith is represented by well known San Francisco Attorney Ian Vizzi. Vizzi, recognized by Americans for Safe Access as a medical marijuana law specialist and represents clients throughout the state.
The defense claims that K-Care was a legal, business licensed, and compliant collective. Smith verified the legitimate recommendation of Schaffer with Shaffer's doctor, as required by SB420, prior to the transaction; as such, the transaction was legal.
Vizzi has stated that the Calaveras County District Attorney simply misunderstands the law. `
Deputy District Attorney Seth Mathews is prosecuting the case and is expected to claim that Smith need be a primary caregiver to provide marijuana within a collective, that Smith did not fit the criteria of a caregiver, and that deputy Huffman was not a legal medical marijuana patient, even though he possessed a legitimate recommendation. This was simply a "drug deal in a parking lot".
Calaveras County Sheriff Dennis Downum was quoted in the Calaveras Enterprise as saying: “Quite frankly, it doesn't sound like he was any part of a collective. With a collective there has to be a relationship of some sort. It can't be meeting somebody in a parking lot. In our opinion, you're just selling drugs.”
It is unknown how Mathews intends to proceed on the felony cultivation charges, considering Smith's status as a legal cannabis patient and a member of a collective grow, and as such, is explicitly immune from cultivation penalties.
Further complicating this prosecution is highlighted by the case People v Urziceanu where the court found that "medical marijuana cooperatives that would receive reimbursement for marijuana" are legal under California law.
Vizzi points out in his pretrial brief that the Attorney General has posted his guidelines for a formal model of a collective. A collective must be non-profit operation, business licensed, comply with local regulations, verify physicians recommendations, have membership applications, and grow collectively. Smith did have his California Medical Marijuana ID card, even though it is not required by law.
In addition, the California Supreme Court ruled that limits on marijuana possession and cultivation for verified patients are unconstitutional.
This case will obviously be closely followed by Calaveras Cannabis. If there is interest, I may scan the pretrial brief of Ean Vizzi; it is quite spectacular and educational for those interested in Medical Marijuana law.
I will obviously post for the record my thoughts:
I believe this case should be dismissed at this preliminary hearing. I am jaded enough to believe it will move forward on at least counts 1 & 3. I do not believe this case will ever see a jury, it will dismissed by the DA before then. If it does see a jury, Smith would never be convicted.
See also: Strong Medicine - Calaveras Enterprise
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