BIG BIG WIN TODAY!!!!!
Sacramento California medical marijuana state and federal criminal defense attorneys Mark Reichel and Steve Plesser are thrilled about a new California ruling. The California Supreme Court has now spoken very clearly about the legality under California state law of medical marijuana storefront dispensaries.
Specifically, today, the California Supreme Court refused to order de- publishing and refused to review a published appellate court ruling from a few years back which taught all lower courts that there is a defense against state prosecutions that the defendant was following California medical marijuana law. That case, People v. Jovan Jackson, held as follows:
“We reverse Jackson’s conviction. In opposing the People’s motion, Jackson’s burden was not very great. Jackson was only required to produce evidence which would create a reasonable doubt as to whether the defense provided by the MMPA had been established. The defense the MMPA provides to patients who participate in collectively or cooperatively cultivating marijuana requires that a defendant show that members of the collective or cooperative: (1) are qualified patients who have been prescribed marijuana for medicinal purposes, (2) collectively associate to cultivate marijuana, and (3) are not engaged in a profit-making enterprise. As we interpret the MMPA, the collective or cooperative association required by the act need not include active participation by all members in the cultivation process but may be limited to financial support by way of marijuana purchases from the organization. Thus, contrary to the trial court’s ruling, the large membership of Jackson’s collective, very few of whom participated in the actual cultivation process, did not, as a matter of law, prevent Jackson from presenting an MMPA defense.
However, we also recognize that in determining whether a MMPA defense has been established, a trier of fact must consider whether the organization operates as a for profit enterprise or is a nonprofit enterprise operated for the benefit of its members. In resolving that question, an organization’s large membership and governance processes, if any, are relevant. As we explain, where, as here, a collective has a large membership, the overwhelming number of whom do not, in any fashion, participate in the operation or governance of the collective and there is evidence of a high volume of purchases by the members, a trier of fact could reasonably conclude that, notwithstanding Jackson’s testimony to the contrary, the organization is a profit-making enterprise which distributes marijuana to customers rather than to members of a nonprofit collective organization and is therefore outside the scope of the defense offered by the MMPA. Thus, on remand, the jury should be instructed that in determining whether Jackson is entitled to a defense, the jury must determine whether the collective he participates in is a profit-making enterprise and further that in resolving that question, it should consider, in addition to other evidence of profit or loss, the size of the collective’s membership, the volume of purchases from the collective and the members’ participation in the operation and governance of the collective”
This is now the law of the land in California.
The appellate court opinion which the Supreme Court refused to reverse, is found here