Jay Smith's Motion Denied

*BREAKING NEWS*
On Friday, August 20, 2010 before the Hon. John Martin in Calaveras Superior Court, a motion to set aside the charges filed by Jay Smith's attorney Ean Vizzi was heard. An exhaustive brief was filed prior to the hearing on behalf of the defense.

Jay Smith, a medical marijuana patient and operator of a medical collective was arrested Jan. 4 in the Valley Oaks Center parking lot in Valley Springs on felony charges of sales, cultivation and possession of marijuana for sale.

We have received word that the motion to set aside the indictment was denied on Aug 24, 2010.

We are awaiting confirmation, more details, and a copy of the ruling.

More on this story can be found following the links here:
http://calaverascannabis.co.cc/html/calaveras.shtml#Local%20News%20Archive
http://www.calaverasenterprise.com/articles/2010/04/13/top_story/top01_marijuana.txt

Jay Smith Case Set to be continued

Jay Smith, the collective owner facing felony distribution and cultivation charges in Calaveras County in what Access for Safe Americans called "Identity Theft to Entrap Medical Marijuana Provider" is facing more delay in his court case.

Ian Vizzi, Jay Smith's attorney filed a brilliant motion to set aside the felony indictment that obviously caused the DA pause. Highlighting established and clear state law, case law, and the attorney general guidelines, Vizzi held class and the Calaveras County District Attorney was the student.

DA Seth Mathews responded with a request to continue, highlighting his need to further study the issues presented by Smith's attorney. Vizzi has agreed to the continuance. It is expected that the case will be continued into late August, early September. More details as they become available.

News Blunts for July 19

State precedent to be set in Anaheim Appeal Case

A three-year-long case against Anaheim by Qualified Patients Association could come to an end by Monday, setting a precedent by which judges may follow in future cases in the state.

Qualified Patients, an Anaheim-based medical marijuana dispensary sued the city in 2007, when the city was attempting to implement an ordinance banning all medical marijuana dispensaries.

After Qualified Patients filed its lawsuit, the city was granted a demur, terminating the lawsuit. Qualified Patients appealed the decision in the Court of Appeals in Santa Ana.

The case was argued in the Court of Appeals in September and a ruling would have come 90 days later, but the court required further time to look over the case. A ruling is expected by Monday, which will be 90 days after the continuance.

"If the appellate court strikes down the Anaheim ordinance it will create a whole new playing field. It will change the medical marijuana landscape," said Anthony Curiale, the lawyer representing Qualified Patients in Anaheim.

Should Anaheim prevail, Curiale believes it will void the state's compassionate use act, which was approved by voters in 1996 to de-criminalize the use of marijuana for medicinal purposes.

"That essentially means cities regardless of what state law says, will be able to completely ban medical marijuana in their cities," he said.

State law permits the operation of medical marijuana collectives and cooperatives, which are required to follow a set of guidelines by the Attorney General's Office.

The use of medical marijuana is still prohibited under federal law, and some cities chose to side with the feds by banning dispensaries.

The outcome of the case could determine if the state's law could pre-empt all cities' bans on medical marijuana dispensaries, said Moses Johnson, Anaheim city attorney.

"It could be far reaching, but we're not going to know until we see it. It's a very complicated issue," Johnson said. The Court of Appeal had it for a long time and everybody's just anxiously awaiting for a ruling."

Several members shared their personal stories and expressed their concerns over the possibly of their clubs being shut down.

Complete Upland Story at Contra Costa Times >>

California Democrats neutral on Proposition 19
The Associated Press

SAN FRANCISCO—Executive Board members of the California Democratic Party on Sunday took a neutral stance on a ballot measure that would legalize and tax marijuana in the state.

Proposition 19, if approved by California voters in November, would allow adults to cultivate marijuana and enable local governments to regulate and tax sales of the plant to raise revenue.

Complete Story at SJ Merc >>

Joey's Journey: Medical Marijuana Saves 10 Year Old Child's Life

Knocking on deaths door, 10 year old Joey Perez was slowly dying. The potpourri of prescription medications he’d consumed since the age of 5 were damaging his body beyond repair. The side effects were literally killing him. Doctors had no answers, or any safe alternatives. Their only suggestion was the combination of a few more meds, and to experiment with what happened next. Mieko, Joeys mother, knew his body was weak and shutting down. She knew his fragile body could not handle the addition of any more toxic medicines. Luckily for Joey, her experience as a legal researcher gave her the tools she needed to start her and Joey on this journey. A healing journey with an effective treatment - Medical Marijuana.

Joey was diagnosed with Autism at 18 months old. His mother, Mieko has been fighting that battle ever since. Her life is not consumed with why Joey has Autism, she now focuses on what she can do to effectively treat her sons condition.

Mieko was taking the advice of her doctors, and experimenting with a slew of different prescriptions for her severely autistic son. At one time, Joey was taking 6 different medications - up to 3 times a day. As a result of the side effects, Joey became malnourished and was diagnosed with Anorexia. Every day, his condition got worse. He was deteriorating in front of his mothers eyes. Joey clearly showed all the signs that he was starving. Besides being under weight and malnourished, Joeys eyes were sunk in and you could easily see all the bones in his chest. He was refusing to eat. Even the costume of a buff super hero could not disguise the starved body underneath. All of Joeys family and friends were helplessly watching him die.

Then Mieko received the most dreaded news a parent could ever hear. Joeys medical prognosis at that time was high probability of death within 6 months. She and her husband Eric were devastated. With the thought of him dying, she clung on to him tightly, and prayed for a breakthrough. Joey needed a miracle to occur.

Mieko believes through a divine intervention she found the research of Dr. Bernard Rimland, founder of the Autism Research Institute.

Complete Story >>

Medical Marijuana Dispensaries - A Primer

As Posted on thepinetree.net:


CALAVERAS MEDICAL MARIJUANA DISPENSARIES - A Primer: As we move headlong to the Jay Smith trial and doubtless will be seeing the same aggression against Gus Meyers for his Valley Springs collective, it is time
to examine the law.

Our county must be braced for the expensive litigation that is going to come our way, not to mention the wasted expense of prosecutions, so where do we stand in terms of the law?

When discussing Jay Smith and his collective distribution of medicinal cannabis, the the law, according to the two primary county law enforcement authorities is as follows:

“Quite frankly, it doesn't sound like (Jay Smith) 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.” - Sheriff Dennis Downum, Calaveras Enterprise - 4/13/10

“A lot of people think a cooperative, dispensary and collective are similar and surely that must be legal because there are tons of them in Oakland and San Francisco,” Matthews said. “That's the wrong assumption. “My view is that the dispensaries in the big cities, where a guy walks in off the street, shows his recommendation and buys an ounce of pot for $300 – that's not a legal sale,” Matthews said, adding that in order to sell another person with marijuana, one must be his or her primary caregiver. - Deputy District Attorney Seth Mathews, Calaveras Enterprise - 7/2/10

So is it true? Has Calaveras County been blessed with two brilliant legal minds that understand California law better than California's elected Attorney General, our appellate and supreme courts, and District Attorney's throughout the rest of California?

Medical Dispensaries do not operate in just "Oakland and San Francisco", as stated by Mathews.

Vehement anti-Prop 215 counties such as San Diego and Kern that have fought implementation of medicinal cannabis law all the way to the US Supreme Court have store front dispensaries open for business today. Dispensaries operate throughout the state, including within a crow's hop from our state capital building. Why? How? What is the law?

This primer is intended to help educate our local attorney's, law enforcement, and our community on California law and the collective and cooperative marijuana activities provided for by The Compassionate Use Act (Prop. 215) and the Medical Marijuana Program Act ( SB 420 - MMP).

For guidance on this issue, we can turn to two landmark decisions, the 3rd District Court of Appeal ruling in "People v. Urziceanu" and the California Supreme Court ruling People v. Kelly" and the supporting case law of those rulings and the Attorney General Guidelines for Medical Cannabis Patients (2008).

While an appellate ruling is non-binding, it is important to note the Calaveras County is within the purview of the 3rd District Court of Appeal, and as such holds their rulings holds that much more sway in application here.

There remains some some vagueness in the medicinal cannabis law, for the limited purpose and scope of this article, it is conceded or represented that the courts have consistently held:

1. Medical marijuana possession and cultivation is not a right conveyed by the voters, but rather, upon verbal or written recommendation of a physician for the use of medical marijuana, offers an affirmative defense to charges of violations of those laws.

2. Prop. 215 provided that TWO sections of state law shall not apply to “a patient” or “a patient’s primary caregiver” - those are the two sections related to possession and /or cultivation of marijuana for the “personal” medical use of “the patient.”

3. Prop. 215 did NOT alter the other statutory prohibitions related to marijuana, including those
that bar the transportation, possession for sale, and sale of marijuana.

4. Federal law DOES NOT preempt state law, and that police are obligated to uphold state and not federal law.(State and U.S. Supreme Court rulings)

5. The limits set by the MMP have been ruled an unconstitutional curbing of a voter approved amendment and patients maybe possess quantities consistent with their needs.

So where does that leave us?

Court rulings endangered the California's thriving medical marijuana industry; an industry accounting for millions and millions of dollars of local and state revenue.. The rulings essentially made "store front" distribution of medicinal marijuana illegal. Prop.215 provided that one of its purposes was to encourage the state and federal government to implement a plan to provide for the safe and affordable distribution of medical marijuana to those patients who need it.

The legislature responded to that edict and the the rulings by passing Senate Bill 420, the Medical Marijuana Program Act.

In the MMP , the Legislature sought to: “(1) Clarify the scope of the application of (Prop. 215) and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution" and to "Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.”

The MMP further evidenced “the intent of the Legislature to address additional issues that were not included within (Prop 215) and that must be resolved in order to promote the fair and orderly implementation of the act"

The MMP expressly expanded Prop. 215 beyond cultivation and possession of marijuana. In H&S section 11362.765, the law provides, “(a) Subject to the requirements of this article, the individuals specified in subdivision (b) shall not be subject, on that sole basis, to criminal liability under Section 11357 (Possession), 11358 (Cultivation), 11359 (Possession for Sale), 11360 (Transportation), 11366, 11366.5 & 11570 (Maintenance of Location for Unlawful Activities/storage of controlled substance, and Nuisance laws).

The MMP went further in authorizing compensation for medical marijuana services in H&S 11362.765(c), “A primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for (medical marijuana) services provided under this article, or for payment for out-of-pocket expenses incurred in providing those services, or both, shall NOT, be subject to prosecution or punishment under Section 11359 or 11360." The court ruled: "This section thus allows a primary caregiver to receive compensation for actual expenses and reasonable compensation for services rendered to an eligible qualified patient, i.e., conduct that would constitute sale under other circumstances."

So while Prop 215 did not authorize ""Possession for Sale" , "Operating place of business for distribution of marijuana", or reimbursement for services provided; the MMP DID.

The court ruled: "(The MMP) 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."

In response to civil challenges, criminal court rulings, and the legislative intent of SB420, the California Attorney General published guidelines for the collective/cooperative distribution of medical cannabis via "store front" dispensary. Those guidelines stated: "Under California law, medical marijuana patients and primary caregivers may associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes.'” (§ 11362.775.) The following guidelines are meant to apply to qualified patients and primary caregivers who come together to collectively or cooperatively cultivate physician-recommended marijuana."

It should be noted that patients AND primary caregivers may associate together. This distinction is important because our law enforcement personnel are completely ignorant of that
distinction and repeatedly misstate the law.

Specifically, DDA Mathews stated that when he's in court, he asks individuals a number of questions to determine if they are a primary caregiver such as 'What do you do for this person? Do you provide meals? How often do you see them? What did you do when you saw them?' If they come up with nothing, we figure they are not their primary caregiver.”

That is completely irrelevant when discussing most collectives or the patients
operating them. Neither Smith, nor most other store front collectives/ dispensaries operate as primary caregivers, nor do they allege such. Most, including Smith, provide paperwork to members expressly stating that they are NOT acting as primary caregivers. They are PATIENTS collectively assembling for medical marijuana purposes, in accordance with state law. No where does the law state one MUST be a primary caregiver to collectively assemble, assemble, or to provide marijuana within a collective. Caregivers may assemble. Patients may assemble. Caregivers AND patients maybe assemble. If you meet any of those definitions you may collectively assemble for lawful medical marijuana purposes. For example, Smith is a patient, not a caregiver. As a patient, he may collectively assemble with other patients and caregivers
for medical marijuana purposes.

Our law enforcement agencies are purposefully ignoring law, precedent, and state guidelines when they prosecute defendants on the basis of the fact they are not "primary caregivers".

As a patient, what must one do in order to lawfully collectively cultivate and distribute marijuana? The Attorney General guidelines are very specific about their model for operating a marijuana dispensary:

1. The collective must ensure that there are safe guards to the disbursement of marijuana to non-patients.

2. A statutory cooperative must incorporate.

3. A collective or “a business, farm, etc., jointly owned and operated by the members
of a group.” should be an organization that merely facilitates the collaborative efforts of patient and caregiver members – including the allocation of costs and revenues. 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.

4. It must be non-profit, but may be reimbursed for costs associated with the business.

5. It must comply with local and state licensing and tax laws, including a Sellers Permit.

6. It must have a membership application process, including verification and must maintain membership records.

7. Collectives should acquire, possess, and distribute only lawfully cultivated marijuana.

8. Provide adequate security and have procedures in place in the event members are found to be dispersing the medicine to non-members.

In conclusion, the rogue prosecution of lawfully operating medical marijuana patients in this county is at odds with the constitution, statutes, case law, and business models published by the state of California.

This county will doubtless be the subject to significant legal liability if it continues to operate outside the bounds of the law. One can contemplate that those liabilities could be in the
tens of millions of dollars. Our county is already laying off workers in essential services and there is no optimistic end of those cut backs in sight. The reefer madness of our rogue law enforcement is a luxury this county can no longer afford.

It can be appreciated that a minority opinion of those in this state oppose Prop 215 and subsequent laws and interpretations; however, it is in fact the law. If you don't like the law, you can work to change the law. But you cannot dictate the law via rogue law enforcement.

It is High Time Calaveras County law enforcement at least understand the law, accept it, and apply it.

Preliminary hearing for Calaveras Medical Marijuana collective operator set for Monday

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.