Blog Jay Leiderman Law

THE PROSECUTION ARE NOT ENTITLED TO A 402 HEARING IN CONNECTION WITH FACTUAL WITNESSES CONNECTED TO A MEDICAL MARIJUANA COLLECTIVE DEFENSE

            The People’s request for a Evidence Code § 402 hearing of defendant’s factual witnesses, if one is made, amounts to nothing more than an attempt to depose defendants witnesses, and is not authorized by law.

Evidence Code § 402.  Provides a limited scope that permits a hearing on preliminary facts, where Evidence Code § 402 provides,

 

(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.

 

(b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests.

(c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute.

In People v. Galambos (2002) 104 Cal. App. 4th 1147, a pre-MMP medical marijuana case, the Court has concluded that at least where a defense is novel and raises questions whether there is sufficient evidence to sustain each element of the proffered defense, a hearing under Cal. Evid. Code § 402 is justified so that otherwise irrelevant and confusing matter is not placed before the jury. Often novel, necessity defenses in particular risk the presentation of otherwise irrelevant and confusing evidence to the jury if the defense cannot be established. And it is the novelty of the defense that raises the prospect that the defendant might fail to establish its elements, and in such a case, that very novelty would also allow the jury to hear irrelevant evidence that would confuse the issues.  (See People v. Galambos (2002) 104 Cal. App. 4th 1147, 1158.)  Moreover, the California Supreme Court has recommended the use of the procedure under Evidence Code section 402 for novel matters.  (See People v. Bledsoe (1984) 36 Cal.3d 236, 245, footnote 6)

However, the Medical Marijuana Collective defense is not a “novel” defense.  It is a statutory defense that has been supported and upheld by both the California Appellate Curt and the California Supreme Court. (See H&S § 11362.775, People v. Urziceanu (2005) 132 Cal. App. 4th 747, and People v. Wright (2006) 40 Cal. 4th 81.)   Furthermore, Defendant requests that this court take judicial notice that the medical marijuana collective defense has been litigated in this very court on at least a monthly basis, if not a daily basis.

Here, Defendant has presented the existence of a preliminary fact, which the People cannot dispute.  Either the collective administrator is going to testify, or he is not, this is not in dispute.  If the collective administrator does testify to the facts submitted herein, Defendants will be entitled to a medical marijuana collective defense as provided by case law under People v. Urziceanu (2005) 132 Cal. App. 4th 747   Since the medical marijuana collective defense is not a novel defense, and since there is no dispute regarding preliminary facts of the case, the People are not entitled to a 402 hearing of Defendants’ factual witnesses prior to any mention of medical marijuana or a medical marijuana collective defense.

 

*****************************************************

At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com

“A creative and multi-faceted vigorous defense comes from a creative, multifaceted lawyer.” – Jay Leiderman.

medical marijuana collective defense jay leiderman homicide murder manslaughter firearm mentally ill

Jay Leiderman does frequent media appearances concerning a broad array of criminal justice topics

This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website: http://www.jayleiderman.com/htm/contact.php

 

twitter Facebooktwittergoogle_pluslinkedinmail

THE PROSECUTION HAS THE BURDEN OF PROVING THE EXISTENCE OF PRELIMINARY FACTS, INCLUDING THE AUTHENTICITY OF WRITINGS IT PROFFERS.

California Evidence Code section 403 states that the proponent of a proffered piece of evidence has the burden of producing evidence as to the existence of preliminary facts when the relevancy or authenticity of those facts is disputed.  The evidence is inadmissible unless there is sufficient evidence to sustain a finding of the existence of the preliminary facts whenever the relevance of the proffered evidence depends on the existence of a preliminary fact, or the preliminary fact is the authenticity of a writing or the proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself.  (Cal. Evid. Code § 403(a).)

 

 

****************************************************

At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com

jay leiderman medical marijuana digital hacker internet computer

Jay Leiderman being interviewed for a movie in his Ventura County, California Office

This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website: http://www.jayleiderman.com/htm/contact.php

twitter Facebooktwittergoogle_pluslinkedinmail

DEFENDANT IS THUS ENTITLED TO A JURY INSTRUCTION REGARDING THE COLLECTIVE MEDICAL MARIJUANA DEFENSE UNDER HEALTH AND SAFETY CODE SECTION 11362.775

In People v. Urziceanu (2005) 132 Cal. App. 4th 747 the Court held that the –

 

“defendant argues that the Medical Marijuana Program Act provides him with a new defense to the charge of conspiracy to possess marijuana for sale. We conclude the law should be applied retroactively and it does provide defendant with a potential defense. We shall remand for a new trial.”

 

The basis of the Court’s decision to reverse was that:

 

“the Medical Marijuana Program Act contains section 11362.775, which states, “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.” Thus, the Legislature also exempted those qualifying patients and primary caregivers who collectively or cooperatively cultivate marijuana for medical purposes from criminal sanctions for possession for sale, transportation or furnishing marijuana, maintaining a location for unlawfully selling, giving away, or using controlled substances, managing a location for the storage, distribution of any controlled substance for sale, and the laws declaring the use of property for these purposes a nuisance.

 

This new law represents a dramatic change in the prohibitions on the use, distribution, and cultivation of marijuana for persons who are qualified patients or primary caregivers and fits the defense defendant attempted to present at trial. 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. Contrary to the People’s argument, this law did abrogate the limits expressed in the cases we discussed in part IA which took a restrictive view of the activities allowed by the Compassionate Use Act.”

 

People v. Urziceanu (2005) 132 Cal. App. 4th 747, 785

 

The facts presented in People v. Urziceanu (2005) supra

 

“at trial, defendant produced substantial evidence that suggests he would fall within the purview of section 11362.775. He presented the court with evidence that he was a qualified patient, that is, he had a qualifying medical condition and a recommendation or approval from a physician. His codefendant Rodger submitted that same evidence as to herself. Defendant further presented evidence of the policies and procedures FloraCare used in providing marijuana [***67]  for the people who came to him, including the verification of their prescriptions and identities, the fact that these people paid membership fees and reimbursed the defendant for costs incurred in the cultivation through donations. Further, he presented evidence that members volunteered at the cooperative.

 

Faced with this evidence …. we cannot conclude the jury would reject defendant’s claim on retrial that his cooperative falls within the parameters of section 11362.775. Thus, we must remand the case for a new trial on this issue.”

People v. Urziceanu (2005) 132 Cal. App. 4th 747, 786.

 

Here, as in People v. Urziceanu (2005) supra, the evidence to be presented at trial will show that this case will fall within the purview of section 11362.775.  Evidence will be  presented the court that the defendants, and the collective manager were qualified patients, that that the policies and procedures THE COLLECTIVE used in providing marijuana for its collective members, including the verification of their medical marijuana recommendations and identities, the fact that collective members reimbursed the collective for costs incurred in the cultivation and evidence that members volunteered at the collective.  Therefore, pursuant to H&S § 11362.775 and the courts opinion in  People v. Urziceanu (2005) supra, the defendants are entitled to discuss the medical marijuana collective defense during opening arguments.

 

 

*******************************************************************

At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com

“A creative and multi-faceted vigorous defense comes from a creative, multifaceted lawyer.” – Jay Leiderman.

jay leiderman radio tv huffington post barrett brown jeremy hammond MEDICAL MARIJUANA DEFENSE

Last post brought you “A creative and multi-faceted vigorous defense comes from a creative, multifaceted guy.” – Jay Leiderman. Here’s Jay’s recent career as told through pictures.

 

This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website: http://www.jayleiderman.com/htm/contact.php

twitter Facebooktwittergoogle_pluslinkedinmail

THESE ARE JURY INSTRUCTIONS I USED IN A CASE IN WHICH I SECURED A NOT GUILTY VERDICT.  OF COURSE, IT IS IMPORTANT TO BOTH HAVE THESE INSTRUCTIONS AND TO HAVE A LAWYER THAT KNOWS HOW TO USE THEM!

Qualified patients claiming protection under the law may possess an amount of marijuana that is reasonably related to their current medical needs.

 

“Non medical purpose” means any purpose other than a medical purpose including recreational use or sales to people outside the collective.

 

The question of whether the medical use of marijuana is appropriate for a patient’s illness is a determination to be made by a physician. A physician’s determination on this medical issue is not to be second-guessed by jurors who might not deem the patient’s condition to be sufficiently “serious.”

 

Medical marijuana patients have the right to transport marijuana from the place they obtain it to the place that they intend to use it if the amount transported is reasonably related to their current medical needs.

 

Qualified patients who collectively associate in order to cultivate marijuana for other members of the collective may transport their collectively grown marijuana to other members of the collective. The marijuana transported must be reasonably related to the collective members’ current medical needs.

 

Only marijuana grown by a qualified patient may lawfully be transported by, or distributed to, other members of a collective. The collective may allocate marijuana to other members of the group.

 

Qualified patients who associate within the State of California in order to collectively cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to criminal sanctions for either transportation nor possession for sale of marijuana. Collectives may receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana; however, collectives may not make a profit beyond those permitted expenses and service costs. The making of a profit is an unlawful sale of marijuana.

 

The burden is on the defendant to merely raise a reasonable doubt that their conduct was lawful as stated above.

 

However, once the defendant raises that reasonable doubt the People have the burden to prove beyond a reasonable doubt that the defendants were not acting lawfully

********************************************************

At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com

“A creative and multi-faceted vigorous defense comes from a creative, multifaceted lawyer.” – Jay Leiderman.

jay leiderman defense attorney defending clients accused of committing crimes medical marijuana jury instructions

Jay Leiderman on his way into Federal Court to present a vigorous and hard-hitting defense; his duty under the constitution and his privilege as a lawyer.

This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website: http://www.jayleiderman.com/htm/contact.php

Legalize it, don’t criticize it!

 

twitter Facebooktwittergoogle_pluslinkedinmail

 

 ^