People v. Colvin
| Decision Date | 23 February 2012 |
| Docket Number | No. B227958.,B227958. |
| Citation | 12 Cal. Daily Op. Serv. 2268,203 Cal.App.4th 1029,2012 Daily Journal D.A.R. 2506,137 Cal.Rptr.3d 856 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. William Frank COLVIN, Defendant and Appellant. |
OPINION TEXT STARTS HERE
Law Offices of Lawrence S. Strauss and Lawrence S. Strauss, Sherman Oaks, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
While transporting in his car about one pound of marijuana from one medical marijuana establishment to a second, defendant and appellant William Frank Colvin was stopped and arrested. He was charged with, among other things, transporting marijuana. At his court trial, Colvin raised a defense under the Medical Marijuana Program Act (MMPA), which provides a defense to specified classes of people, including “qualified patients,” who “associate ... in order collectively or cooperatively to cultivate marijuana for medical purposes.” ( Health & Saf.Code, § 11362.775.) 1 The trial court found that Colvin, although a qualified patient operating a “legitimate dispensary,” was not entitled to the defense because the “transportation had nothing to do with the cultivation process” and was “outside what the law permits.” We conclude that, based on the trial court's findings, section 11362.775 applied. We reject the Attorney General's argument that the section applies only to those cooperatives involving “some united action or participation among all” members. The judgment is therefore reversed.
Colvin co-owns and operates Hollywood Holistic 1 and Hollywood Holistic 2 (collectively Holistic), medical marijuana dispensaries. Holistic is a nonprofit corporation, formed in 2005, opened in 2006, and registered with the City of Los Angeles in 2007. The city renewed the license in May 2010. Los Angeles Police Department's Gangs and Narcotics Division informed Colvin that Hollywood Holistic Inc.'s live scan application met the standard in the Medical Marijuana Collective Ordinance and would be forwarded to the Office of the City Clerk for the next step in the ordinance registration process. Holistic pays Colvin approximately $400 per week.2 The money Holistic makes is used to pay rent, utilities, lights, and necessities for the business.
As of March 2009, Holistic had 1,500 patients or members, although that number grew to over 5,000 by the time of trial. Approximately 14 members, including Colvin, grow marijuana, and Holistic reimburses growers for expenditures, such as fertilizer, hydroponic equipment, and lighting for indoor growing.3 Some growers are in Los Angeles County, but others are in Humboldt County. Those who grow marijuana drop it off at Holistic for other members to buy. Holistic also grows marijuana on-site, and the Los Angeles Police Department (LAPD) visited the three “grow rooms.” None of the marijuana Holistic distributes is from a source other than a collective member.
If a person comes in with a prescription for medical marijuana, they are first left in “primary holding” while someone looks them up online or calls their doctor to make sure they are “legal.” The person's identification is checked. Once that process is completed, the person is let in and fills out a membership application and patient information sheet.4 The person is then given a prescription number that Holistic uses to identify them and to track when their prescription expires. They also sign a registry so that Holistic has a record of their medical problem. Finally, the person is given their medicine, which is “legally tagged” and put in a stapled bag. Every time the person returns, the visit is registered in a computer program. Patients are allowed no more than one ounce of marijuana in one day, and, to minimize the chance of crime, each Holistic establishment has no more than two to three pounds of marijuana at any time. People who come to Holistic for the first time might pay for the marijuana, but returning members pay a “charter fee,” determined each quarter based on the person's needs, that is used to grow marijuana for the person.
On March 10, 2009, Colvin was arrested a block and a half from Holistic 2 (in Hollywood), while he was en route to Holistic 1 (in Santa Monica). He was delivering just over a pound of marijuana for Holistic's use.5 COLVIN ALSO HAD $4,285 in cash. colvin explained To the officer that he managed marijuana dispensaries and was delivering marijuana to one of them. He had a valid doctor's note, having been prescribed marijuana since 2003.
An information alleged three counts against Colvin: count 1, possession of a controlled substance, cocaine (§ 11350, subd. (a)); count 2, sale or transportation of marijuana (§ 11360, subd. (a)); and count 3, possession of concentrated cannabis (§ 11357, subd. (a)). Colvin waived his right to a jury, and, at the close of evidence, made a motion for a judgment of acquittal under Penal Code section 1118.6 The court denied the motion and found that defendant was not entitled to the defense under section 11362.775 because “the transportation here had nothing to do with the cultivation process.” The court, however, also found that Colvin was a qualified patient and that Colvin was operating a “legitimate” “dispensary.” The court rejected Colvin's due process argument.
On September 9, 2010, the trial court placed Colvin on probation under Proposition 36 for 18 months on count 1 for possession of cocaine. The court also placed him on three years' probation on counts 2 and 3 and ordered him to perform 200 hours of community service.
In 1996, voters passed Proposition 215, the Compassionate Use Act (CUA). One purpose of the CUA was 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 illnesses for which marijuana provides relief. (§ 11362.5, subd. (b)(1)(A); see also People v. Wright (2006) 40 Cal.4th 81, 89–90, 51 Cal.Rptr.3d 80, 146 P.3d 531.) A second purpose was to ensure that patients and their primary caregivers who obtain and use medical marijuana are not subject to criminal prosecution or sanction. (§ 11362.5, subd. (b)(1)(B).) the CUa therefore provided that 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 a doctor's recommendation. (§ 11362.5, subd. (d).) The CUA thus provided a limited immunity from prosecution, including a defense at trial. ( People v. Mower (2002) 28 Cal.4th 457, 470, 122 Cal.Rptr.2d 326, 49 P.3d 1067.)
In response to the CUA's encouragement “to implement a plan to provide for the safe and affordable distribution of marijuana to all patients” in need of it (§ 11362.5, subd. (b)(1)(C)), our Legislature enacted the MMPA (§ 11362.7 et seq.). Through the MMPA, the Legislature sought to (Stats.2003, ch. 875, § 1(b), p. 6423.) To these ends, section 11362.775 of the MMPA 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, 11358, 11359, 11360, 11366, 11366.5, or 11570.” (§ 11362.775, italics added.) 7
The trial court here concluded that section 11362.775 did not apply to Colvin because “the transportation ... had nothing to do with the cultivation process.” The trial court's conclusion, however, does not flow from its findings. The court found that Colvin was a qualified patient and that he was operating a “legitimate” “dispensary.” 8 If Colvin, a qualified patient, was operating a legitimate medical marijuana cooperative, then he “shall not solely on the basis of that fact be subject to state criminal sanctions under” section 11360 (). ( § 11362.775; see generally, People v. Urziceanu (2005) 132 Cal.App.4th 747, 785, 33 Cal.Rptr.3d 859 ( Urziceanu ) ].) The court nonetheless held that the defense did not apply to Colvin because “his transportation was outside of what the law permits.”
It is unclear what the trial court meant when...
To continue reading
Request your trial
-
People v. McNelis
...or participation by members, not simply a supplier-consumer relationship. A similar argument was very recently rejected in People v. Colvin (2012) 203 Cal.App.4th 1029, but the issue in that case was whether the defendant was entitled to a defense at trial under section 11362.775, not wheth......
-
People v. Mata
...had not asked Prospective Juror No. 2473 to remain while he made the Wheeler motion. Indeed, defendant expressly asked to address[137 Cal.Rptr.3d 856]the court at sidebar after the prospective juror left. Also in contrast to Overby, Prospective Juror No. 2473 was not the first African–Ameri......
- People v. Mata