People v. Toluca Lake Collective, Inc., 081817 SUPAD, BR 053046

Docket Nº:BR 053046
Opinion Judge:Richardson, J.
Party Name:THE PEOPLE, Plaintiff and Appellant, v. TOLUCA LAKE COLLECTIVE, INC. et al., Defendants and Respondents.
Attorney:Michael N. Feuer, City Attorney, City of Los Angeles, Asha Greenberg, Assistant City Attorney, Meredith A. McKittrick, Deputy City Attorney, and John Prosser, Deputy City Attorney, for Plaintiff and Appellant. Eric D. Shevin and Stephen J. Fisch of the Shevin Law Group for Defendants and Responde...
Judge Panel:We concur: P. McKay, P. J. Ricciardulli, J.
Case Date:August 18, 2017
Court:Superior Court of California
 
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THE PEOPLE, Plaintiff and Appellant,

v.

TOLUCA LAKE COLLECTIVE, INC. et al., Defendants and Respondents.

BR 053046

Superior Court of California, Appellate Division, Los Angeles

August 18, 2017

APPEAL from a judgment of the Superior Court of Los Angeles County, Melissa Widdifield, Judge. Reversed.

Michael N. Feuer, City Attorney, City of Los Angeles, Asha Greenberg, Assistant City Attorney, Meredith A. McKittrick, Deputy City Attorney, and John Prosser, Deputy City Attorney, for Plaintiff and Appellant.

Eric D. Shevin and Stephen J. Fisch of the Shevin Law Group for Defendants and Respondents.

OPINION

Richardson, J.

INTRODUCTION

A misdemeanor complaint was filed on June 20, 2014, charging defendants Toluca Lake Collective, Inc. (TLC), Frank Jay Sheftel (Sheftel), Hatteras Holdings, LLC, and Peter Welkin with operating an unlawful medical marijuana business (MMB) in violation of Los Angeles Municipal Code (LAMC) section 45.19.6.2, subdivision A, 1 on August 26, 27, and 28, 2013, and the illegal use of land (§ 12.21, subd. A) based on the operation of the MMB.

Following an evidentiary hearing on the applicability of the limited immunity provided in section 45.19.6.3, the court found defendants substantially complied with the requirements for the affirmative defense, including subdivision B's registration requirement contained therein. Based on its finding that the immunity applied “as a matter of law” to bar prosecution, and pursuant to Penal Code section 1385, the court dismissed all charges against defendants.

The People appeal from the order of dismissal, contending that substantial compliance was applied in error to the immunity requirement of section 45.19.6.3, subdivision B, and that the court abused its discretion under Penal Code section 1385. We reverse.

BACKGROUND

Motion in Limine

On May 19, 2015, defendants filed a motion in limine, seeking to allow evidence and argument at trial that defendants qualified for immunity from prosecution pursuant to section 45.19.6.3. Defendants asserted that TLC was open and operating prior to the passage of Interim Control Ordinance No. 179027 (ICO)2 on September 13, 2007, and that, after the passage of the ICO, Sheftel went to the city offices in the Van Nuys Government Center, on October 15, 2007, to register TLC as an MMB. He met with a city employee who was unfamiliar with the ICO registration process but who nevertheless assured Sheftel that he was “in compliance.” The employee printed and date-stamped “a screen shot” for Sheftel (exhibit A), as proof that Sheftel had registered TLC on that date. On August 25, 2008, the City issued an order to comply (exhibit C), requiring defendants to discontinue their operation of their MMB. Consequently, Sheftel met with city staff and filed a hardship application on September 8, 2008. After this meeting, TLC was placed on a list of “Now Open Pre-ICO collectives” (exhibit E). In May of 2010, defendants learned that the City had changed its position regarding TLC's ICO registration.

The People's Response

On August 25, 2015, the People filed their response, arguing that defendants could not demonstrate they were entitled to limited immunity under section 45.19.6.3 because they failed to satisfy subdivision B's ICO registration requirement. The People argued that the City Clerk had no record of an ICO registration packet for defendants; any filing in the city offices in Van Nuys was inadequate, as it was not the Office of the City Clerk; and the submission of a registration package in September of 2008 was untimely.

Evidence Code Section 402 Hearing

The court conducted an Evidence Code section 402 hearing on December 1, 2015, regarding defendants' compliance with the ICO registration requirement. The defense called Jose Zaragoza, a former tax compliance officer for the City, who worked in the Office of Finance at the Van Nuys branch in 2007. Zaragoza testified that at the time of his employment with the City he had no authority to act on behalf of the Office of the City Clerk, and there was no office for the City Clerk in Van Nuys. He further testified that he was unfamiliar with the ICO; had no recollection of Sheftel or receiving any documents from him; had no knowledge of receiving any filings for MMB's, other than business tax registration certificate applications; and did not recall ever forwarding any documentation to the City Clerk's Office.

Zaragoza identified exhibit A as “a print screen” of a computer system that had been used to enter business tax applications. He confirmed that the printout contained his signature and a date file stamp. He stated he did not know what prompted the printout and that the stamp did not indicate receipt of any documents. When the prosecutor showed Zaragoza an exemplar of a “Medical Marijuana Dispensary Business Information Form” (Business Information Form), he stated that he had never seen such a form before.

The hearing was continued to December 11, 2015. On that date, the defense called Sharon Dickinson, who worked for the City Clerk's Office. She testified that the City Clerk's Office was the “receiving agent for the city and custodian of records” for documents required under the ICO. She further testified that in September 2008 she met with Sheftel regarding TLC's registration under the ICO. Sheftel told Dickinson that he had filed the required documents with the Office of Finance in Van Nuys. When Dickinson called that office, she was told there was no record of such a filing.

Defense counsel showed Dickinson exhibit B, which was a list of ICO-registered MMB's, dated September 9, 2008, and directed her attention to the last entry listing TLC as a registered MMB. Next to the entry, the following notes were made: “9/9/08. Added to list. Application was originally submitted on 10/15/07, but was inadvertently misdirected by City staff. New location pending hardship application. 11436 Hatteras Street.” Dickinson explained that the notes were added by Daisy Mo from “code enforcement” in reliance on Sheftel's “word” and based on his presentation of exhibit A. Dickinson was later instructed by “Clerk Management” to remove TLC from the list of registered MMB's, and on June 23, 2010, Sheftel was notified of the change.

Sheftel testified...

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