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THE DEFENSE IS ENTITLED TO HAVE THE JURY USE ALL AVAILABLE RELEVANT FACTS TO GRADE THE QUALITY OF THE INVESTIGATION AND DECIDE IF THE POLICE DID A POOR JOB

 

In Kyles v. Whitley (1995) 514 U.S. 419, 445-449, the United States Supreme Court holds that the defense can attack the police in front of the jury both by cross-examination and in closing argument, concerning shoddy, slovenly, inadequate, or biased police investigation work.  (See also United States v. Hanna (9th Cir. 1995) 55 F.3d 1456, and United States v. Sager (9th Cir. 2000) 227 F.3d 1138, 1145-1146, relying on Kyles.)

In Sager the court said:  “[T]he district court committed plain error and abused its discretion by instructing the jury not to ‘grade’ the investigation.” (Id. at 1145.)  “Details of the investigatory process potentially affected Inspector Morris’s credibility and, perhaps more importantly, the weight to be given to evidence produced by his investigation. Defense counsel may have been fishing for flaws, but it is obvious that he cast his bait in a promising pond.”  (Id.)  To fail to allow this line of inquiry impinges on a defendant’s state and federal constitutional rights to confrontation and compulsory process.  (See Pointer v. Texas (1965) 380 U.S. 400, 403- 405.)

The defense has wide latitude in cross-examination of prosecution witnesses in a criminal case.  (People v. Ormes (1948) 88 Cal.App.2d 353, 359; People v. Watson (1956) 46 Cal.App.2d 818, 827.)  “We construe the [proper scope of cross-examination], at least ordinarily, that when a prosecution witness testifies to facts tending to establish the guilt of one criminally accused, that witness may be cross-examined on all relevant and material matters preceding, concurring with, or following the criminal event, within his knowledge and reasonably related to the issue of guilt or innocence.”  (In re Victor F. (1980) 112 Cal.App.3d 673, 682-683, citing Gallaher v. Superior Court (1980) 103 Cal.App.3d 666, 671.)

 

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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.

cfaa expert in computer law protest digital police did a poor job

Jay leiderman addresses a crowd at a protest after celebrated hacktivist Jeremy Hammond was sentenced

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

 

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THE MEDICAL RECOMMENDATION FOR THE USE OF CANNABIS MAY NOT BE CHALLENGED AT TRIAL BY THE PROSECUTION NOR “SECOND GUESSED” BY THE JURY; THE MEDICAL MARIJUANA DOCTOR’S RECOMMENDATION IS FINAL AND NOT SUBJECT TO ATTACK

The prosecution may not challenge or have the jury “second guess” the MEDICAL MARIJUANA DOCTOR’s recommendation for the use of marijuana; as stated in People v. Spark (2004)121 Cal.App.4th 259:

“As is evidenced by the entirety of the language of subdivision (b)(1)(A) and the language of subdivision (d) of section 11362.5, 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.'” (emphasis added)

 

People v. Spark 121 cal.App.4th 259, 268.

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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 defense reasonable doubt doctor's recommendation

Jay Leiderman is a California State Bar Board of Legal Specialization Certified Criminal Law Specialist

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

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THE BURDEN OF PROOF IS ON THE PEOPLE TO ESTABLISH BEYOND A REASONABLE DOUBT DEFENDANT WAS “UNLAWFULLY” CULTIVATING MEDICAL MARIJUANA; IN OTHER WORDS, THE PEOPLE MUST PROVE THAT THE DEFENDANT DID NOT RAISE THE MEDICAL MARIJUANA DEFENSE TO THE SATISFACTORY LEGAL STANDARD

Once the defendant has come forward with the evidence sufficient to raise a reasonable doubt about the lawfulness of his marijuana cultivation the prosecution has the burden of establishing that the elements of the medical marijuana defense do not exist. As stated in People v. Jones (2003) 112 Cal.App.4th 341, 350:

“If, to prevail at trial, the defendant is required only to raise a reasonable doubt as to whether he had a physician’s approval to use marijuana, then no greater burden can be imposed on the defendant at a pretrial section 402 hearing called to challenge his Compassionate Use Act defense. If the defendant produces evidence at the section 402 hearing sufficient to raise a reasonable doubt as to whether he had a physician’s approval to use marijuana, then the gatekeeping function of a section 402 hearing is satisfied and the defense should go to the jury to decide. Only if the defendant fails to produce sufficient evidence to raise a reasonable doubt about the existence of an approval is the trial court justified in keeping the matter from the jury.”

 

People v. Jones (2003) 112 Cal.App.4th 341, 350

 

CALCRIM 2370, correctly sets the burden and states the following:

“Possession or cultivation of marijuana is lawful if authorized by the Compassionate Use Act. The Compassionate Use Act allows a person to possess or cultivate marijuana (for personal medical purposes/ [or] as the primary caregiver of a patient with a medical need) when a physician has recommended [or approved] such use. The amount of marijuana possessed or cultivated must be reasonably related to the patient’s current medical needs. The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or cultivate marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime.”

 

            The “BENCH NOTES” to CALCRIM 2370 state the following:

 

“The medical marijuana defense may be raised to a charge of violating Health and Safety Code section 11358. (See Health & Saf. Code, § 11362.5.) The burden is on the defendant to produce sufficient evidence to raise a reasonable doubt that possession was lawful. (People v. Mower (2002) 28 Cal.4th 457, 460 [122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Jones (2003) 112 Cal.App.4th 341, 350 [4 Cal.Rptr.3d 916] [error to exclude defense where defendant’s testimony raised reasonable doubt about physician approval]; see also People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1441[7 Cal.Rptr.3d 226] [defendant need not establish “medical necessity”].) If the defendant introduces substantial evidence, sufficient to raise a reasonable doubt that the possession may have been lawful under the act, the court has a sua sponte duty to give the bracketed paragraph of medical marijuana instructions.” (emphasis added)

 

See, “BENCH NOTES” to CALCRIM 2370.

 

            Despite this volume of case law on the “collective” defense pursuant to Health and Safety Code section 11362.775, the “BENCH NOTES” to CALCRIM 2350 (possession for sale of marijuana) state the following:

“Until courts of review provide further clarification, the court will have to determine whether under the facts of a given case the compassionate use defense should apply pursuant to Health & Saf. Code, §§ 11362.765 and 11362.775.”

 

Thus, the elements of the defenses provided for in the Compassionate Use Act (CUA) and the Medical Marijuana Program (MMP), are as follows,

First, the patients and/or designated primary caregivers were  “qualified patients,” in that a licensed physician had recommended or approved his/[her] personal use of marijuana to treat a condition specified in the CUA (See, H&S §§ 11362.7 and 11362.765);

 

Second, that the quantity being cultivated, to the extent it exceeded six mature or 12 immature marijuana plants, was either for personal medical use and reasonably related to the patients current medical needs (People v. Kelly 47 Cal.4th 1008), or a quantity approved by a physician post arrest (People v. Kelly 47 Cal.4th 1008, 1016, fn.8.;  H&S § 11362.77, subds. (a), (b)).

 

Third, that the marijuana on which the charges are based actually was for his … own personal medical use, or the personal medical use of the patient whom the marijuana was to be provided to under a caregiver, cooperative and/or collective arrangement. See, H&S §§ 11362.5 and H&S 11362.775; People v. Urziceanu (2005) 132 Cal. App. 4th 747, 785).

Thus, once a defendant raises a reasonable doubt that their case involves a group of qualified medical marijuana patients who have collectively cultivated and processed medical marijuana within the statutory guidelines provided by the MMP, that defendant shall not “solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358…” (see, H&S 11362.775).

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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 defense reasonable doubt

Jay Leiderman is a California State Bar Board of Legal Specialization Certified Criminal Law Specialist

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

 

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DEFENDANT IS IMMUNE FROM PROSECUTION FOR COLLECTIVELY CULTIVATING MEDICAL MARIJUANA UNDER THE AUTHORITY OF HEALTH AND SAFETY CODE SECTION 11362.775; DEFENDANT IS ENTITLED TO RAISE THE MEDICAL MARIJUANA DEFENSE

Here, defendant was also participating in a collective cultivation project which involved a limited number of Collective members. At the time of arrest defendant had a valid MMJ physician’s recommendation and was involved as a cultivating member of collectives within the state of California.  Accordingly, Defendant is entitled to raise the medical marijuana defense.

The Medical Marijuana Program Act, was enacted by the legislature after the passage of The Compassionate Use Act in order to establish guidelines for the cultivation and use of medicinal marijuana [CUA and MMPA]. The intent of the legislature in enacting the Medical Marijuana Program Act was to “enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.” (California Health and Safety Code, Division 10, Chapter 6, Article 2.5 (commencing with Section 11362.7) section 1, subsection (b)(3), added by Stats.2003, chapter, 875 (S.B.420), § 1(b)(3), 2003 Cal. Legis. Serv. Ch. 875 (WestLaw), see also West’s Annotated California Codes, Health and Safety §11362.7, Historical and Statutory Notes.)  The statutes gave rise to teh medical marijuana defense at issue herein.

Also among its purposes in enacting the statute, was to:

“[c]larify the scope of the application of the act and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers.” (Stats. 2003, ch. 875, § 1.) Additionally, the Legislature declared that a further purpose of the legislation was to “address additional issues that were not included within the act, and that must be resolved in order to promote the fair and orderly implementation of the act.”  That is the essence of the medical marijuana defense.

People v. Wright (2006) 40 Cal. 4th 81, 93 Emphasis added

 

Thus, the legislature ensured that the use of medicinal marijuana and its related production remain insulated from prosecution with the enactment of the Medical Marijuana Program H&S § 11362.7 et seq. The Medical Marijuana Program expanded the scope of the protections provided by Compassionate Use Act to include protections against criminal sanctions not just from charges of cultivating marijuana under Health & Safety Code §11358 but also immunity from charges under H&S §§ 11359 (possession for sale) and 11360 (transportation).  In People v. Wright (2006) 40 Cal. 4th 81, the California Supreme Court held that the Medical Marijuana Program statutes which prohibit “criminal sanctions” (such Health & Safety Code §11362.775) also provide immunity from prosecution:

 

“The Legislature extended certain protections [provided by the CUA] to [qualified] individuals. Those protections included immunity from prosecution for a number of marijuana-related offenses that had not been specified in the CUA,…”

 

People v. Wright (2006) 40 Cal. 4th 81, 93 emphasis added

 

Furthermore, “the Legislature sought [in part] to: … (3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.” (Stats. 2003, ch. 875, § 1, subd. (b).)” People v. Urziceanu (2005) 132 Cal. App. 4th 747, 783

 

“[T]he 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.” (emphasis added)

 

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

 

Again in People v. Hochanadel (2009) 176 Cal.App.4th 997, the court upheld the “collective” defense provided under Health and Safety Code section 11362.775 to a charge of sales under Health and Safety Code section 11359 and 11360, explaining as follows:

“As noted, ante, in enacting section 11362.775, the Legislature “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. [¶] … 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.” (Urziceanu, supra, 132 Cal.App.4th at p. 785, italics added.) Thus cooperatives and collectives operated by primary caregivers and/or medical marijuana patients may have a defense to certain narcotics offenses, including those charged against defendants in this case.”

 

People v. Hochanadel (2009) 176 Cal.App.4th 997, 1016-1017.

 

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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.

 

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Jay Leiderman lectures on criminal law issues

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

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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.

 

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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.

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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

 

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