California, Santa Cruz

[palmspringsbum]

February 10, 2005


Marijuana team tries to decipher healing vs. dealing
Scales, big cash rolls have deputies skeptical of some medical claims

By CATHY REDFERN
Sentinel staff writer
www.santacruzsentinel.com

SANTA CRUZ — The county’s Marijuana Enforcement Team says it is up to its ears in questionable medical-marijuana cards as it tries to weed out card carriers who abuse the system by selling pot for profit.

Deputies have arrested five men at two Santa Cruz homes in the past week, four of whom had medical-marijuana cards yet also had items associated with drug dealing, said sheriff’s Sgt. Steve Carney.

"We’re starting to see people pushing it up to the limit," Carney said. "It’s people taking advantage of medical-marijuana laws and hiding behind medical needs to make a profit. Most medical-marijuana patients don’t drive around with large amounts of cash and scales."

In 1996, California voters approved Proposition 215, which legalized medical marijuana. In October, the county Board of Supervisors passed an ordinance that allows patients to possess 3 pounds of pot and keep a garden with a 100-square- foot canopy.

Early Wednesday, Santa Cruz police were called to a home in the 300 block of John Street to investigate a fight between roommates. The sheriff’s Marijuana Enforcement Team was called and found 70 3-foot-tall plants, a scale, packaging material and $3,000 cash, Carney said.

Justin Zak, 23, a self-employed glass blower, was arrested on suspicion of battery and the sale and cultivation of marijuana, Carney said. The plants had a canopy of 118 square feet, which exceeds the limit, he said.

Last Thursday, the team arrested four students who rent a "really nice-looking two-story house" on Western Court. Six people live there and deputies found six growing operations inside, he said, as well as 2 pounds of marijuana with a wholesale value of $4,000 to $5,000.

Arrested was Christopher Werner, 22, on suspicion of possession of psychedelic mushrooms and cultivation of marijuana; Harold Grieco, 21, on suspicion of possessing psychedelic mushrooms for sale; Collin Fischer, 20, on suspicion of possession of marijuana for sale; and Cameron Kaplan, 20, on suspicion of cultivating and possessing marijuana for sale and possessing psychedelic mushrooms.

Only Fischer did not have a medical marijuana card, Carney said. Deputies left three of the growing operations intact, he said.

"We suspect they are illegal but didn’t feel comfortable ripping their plants and saying 100 percent they are not legal," Carney said. "When that happens, we leave them and take a sample or just photograph them."

The home was "trashed," he said, and damaged by mold, water and dirt associated with the plants.

Valerie Corral of the Wo/men’s Alliance for Medical Marijuana said of its 176 members, fewer than 15 percent use 3 pounds of marijuana per year.

Corral said police must not be put in a position to judge a patient’s medical needs, but said those who clearly abuse the system are hurting "a huge amount of people.

"Medical marijuana patients have paid with their lives," she said.

"There’s a lot to look at in this situation," she added. "We have to look deeply at how to serve people and create an accountable system."

Carney’s team investigates five to 10 "marijuana grows" each month, he said. In August, the county started issuing medical-marijuana cards, which require a doctor’s prescription, through the county Health Services Agency. But Carney says the card he most often sees is the Oakland Cannabis Club.

Another case they are working on involves a 23-year-old Live Oak man who deputies discovered with 129 marijuana plants growing in his Avis Lane apartment, as well as 6 pounds of dried marijuana. He had a medical marijuana card and told deputies he had 3 pounds for himself and 3 pounds for his brother, who doesn’t live there, Carney said.


Contact Cathy Redfern at credfern@santacruzsentinel.com.

[palmspringsbum]

June 8, 2005

Supervisors accept cash to fight pot

By BRIAN SEALS
SENTINEL STAFF WRITER
www.santacruzsentinel.com


<img src=bin/wamm-demo.jpg align=right>Over the objections of medical marijuana advocates and rural residents, the Board of Supervisors voted Tuesday to pursue a pot eradication grant.

In what has become an annual event, supervisors were urged to reject the money as a symbolic statement and as a way to curb pot-hunting helicopters buzzing over area houses.

Sheriff Steve Robbins assured those in attendance that his department abides by county policies on medical pot and doesn’t really target even the casual backyard grower.

Rather, he said the major targets are growers who use wildlands and fit them with booby traps, occasionally harass hikers and grow their buds with environmentally unfriendly practices.

"Those aren’t backyard growers that are doing those kinds of things," Robbins said. "Our target is going after those large commercial growers."

However, about a dozen advocates said the time was ripe to reject the money — a symbolic gesture aimed at the federal government’s drug war.

Such a gesture would be appropriate in the wake of Monday’s U.S. Supreme Court decision, some said.

"The reason medical marijuana patients have such difficulty is because of the drug war," said Valerie Corral of the Wo/men’s Alliance for Medical Marijuana.

The grant in question was a state "Marijuana Suppression Grant" for $193,333. The county has received some level of funding from the program for the past 10 years.

For this year, the money would pay for a deputy’s position and partially fund a position in the District Attorney’s Office. It doesn’t pay for the helicopter that seeks pot gardens each summer, the National Guard provides that, but it would pay for the deputy who would staff the copter.

Mike Clark said eight years ago he was told he should stop growing his tomato plants if he didn’t want the helicopter hovering above his Zayante property. He said he and his neighbors still get buzzed.

Others said the grant was inconsistent with the general values of the county and urged the board to not take the money.

"We don’t need this money," said Theodora Kerry. "We do need to send a message to the federal government."

But others said the growers, no matter what general attitudes are about marijuana, harmed the environment by doing things like diverting streams and using pesticides in the wild lands.

Supervisor Jan Beautz said the county was facing another tight budget year and the money was needed. Moreover, she said cracking down on commercial growers should not be mixed up with preserving the rights of medical users.

"If people want to legalize marijuana, they need to put that on the ballot," Beautz said.

Supervisor Mardi Wormhoudt said she was more concerned about drugs like methamphetamine and resources were needed for that kind of problem. She said the drug war had failed to reduce use and had failed to protect children.

"Accepting this money won’t take us one step closer to dealing with any of those problems," Wormhoudt said.

The board voted 4-1 to apply for the grant with Wormhoudt dissenting.

Robbins said any pot-seeking flights would be limited to 60 hours for the whole of the growing season, which generally runs through October, and would generally seek to avoid residential areas.

In some cases, a helicopter is the only way to get to the gardens, he said.


Contact Brian Seals at bseals@santacruzsentinel.com.

[Midnight toker]

August 6, 2006


Summit
A harvest that hurts: Clandestine pot gardens cause ecological damage

By Jennifer Squires
Sentinel Staff Writer
The Santa Cruz Sentinel

SUMMIT — Sheriff's patrol Sgt. Mark Yanez surveys the mess the pot farmers left behind: trash, empty propane tanks and gardening supplies. A blue jug of Power Force Multi Insect Killer and a paper sack with crumbly remains of ammonia sulfate are most damaging to the forest, he says.

The high-yield chemical fertilizer is "real bad for the creek," Yanez says.

Yanez will haul the pesticides and chemicals with him when he makes the 45-minute hike out Friday afternoon. But a camp stove, cans with Miracle-Gro residue, rat traps and miles of rubber irrigation tubing will stay, for now, on public land off Highland Way near Soquel Demonstration Forest.

"We try to clean it up the best we can, but there's not much we can do," Yanez said.

The sheriff's Marijuana Enforcement Team has destroyed about a dozen outdoor marijuana gardens this summer, and is on pace to uproot more plants than ever this year.

But Sgt. Steve Carney, leader of the three-man team, knows his crew's efforts will only slow the expanding problem on state and federal lands: marijuana-growing operations that deputies say are controlled by Mexican drug cartels.

The pot farms present a multitude of problems. Armed men camp nearby to defend the gardens, many of which are within a few minutes' walk of popular hiking trails. Most natural vegetation has been scraped off the steep hillsides to make room for thousands of marijuana plants, creating erosion and disrupting or destroying native species. The pot crops are fed amped-up fertilizers and sprayed with pesticides, deer repellent and rat poison that leech into the soil and water supply.

"It's pretty much like leaving a meth lab," Carney said.

The farms scar the environment. Pesticides and chemical fertilizers, for instance, can endanger or kill coastal steelhead and salmon before flowing into the open-ocean habitats of Monterey Bay National Marine Sanctuary. Sediment eroding into creeks can cover the gravel needed by steelhead trout and coho salmon, an endangered species, to lay their eggs.

Four deputies found and felled 953 marijuana plants terraced into the rocky, sandstone hillside Friday afternoon. Two weeks ago, deputies snipped 6,900 plants in nearby gardens. The plants would have been ready for harvest in mid-September, had deputies not spotted them from a helicopter last month.

This growing season, from April to October, is shaping up to be the most prolific in county history. The sheriff's team has uprooted almost 30,000 plants from about a dozen gardens since spring. The biggest year so far — back when Yanez headed the crew responsible for finding and destroying gardens on public land — yielded more than 36,000 plants.

"I think, by next week, we'll exceed that," Carney said.

But after deputies find the gardens, most of the damage will not be addressed.

Deputies carry out what garbage they can. At the season's end, a National Guard program may have time and funding to use a helicopter and a large net to airlift the trash from abandoned planations out of the forests. Otherwise, there's little recourse.

"It costs a lot of money for the county to hire a cleanup crew and do this," detective Cesar Ramirez said.

A plantation in Castle Rock State Park that deputies uprooted earlier this summer is slated for rehabilitation.

A crew from High Sierra Volunteer Trail Group based in Fresno will haul up trash, pull up irrigations lines and cover the bare soil with leaves and other natural vegetation.

Volunteers from the group have rehabilitated gardens in Big Basin Redwoods State Park, and will probably need three days to repair the damage in Castle Rock. Their work would cost between $20,000 and $40,000 if the government had to pay for it, said group founder and director Shane Krogen.

"It needs to be taken care of," Krogen said.

Estimates vary, but it will be years before the forest lands used to cultivate marijuana will return to normal, even with help from groups such as the High Sierra volunteers.

"It's scary," Krogen said. "Mother Nature, she heals herself, but it takes a long time,"

Friday, deputies chop down the 3- to 6-foot plants and toss them to the bottom of the 15-foot-wide garden carved into the hillside. The wilting, iridescent green sprigs pile onto dead sage brush. Loose rocks that have tumbled down the sparsely vegetated hillside are kicked and tossed on top.

The men — five or more — who tended the crops escaped, and the land will need years to recover, but marijuana that would have sold for hundreds of thousands of dollars has been destroyed.

It's a victory in a battle law enforcement officials know they'll never win.

"By us coming out here, it probably just manages the problem," Carney said. "Otherwise, each year it would probably just keep getting bigger and bigger."

Contact Jennifer Squires at jsquires@santacruzsentinel.com

[palmspringsbum]

Medical Marijuana Forum Thursday; Roger Mentch on Trial Again

by Robert Norse ( rnorse3 [at] hotmail.com )
Tuesday Aug 15th, 2006 12:23 AM
<blockquote><i>
Hemporium Medical Marijuana provider Roger Mentch is on trial again; Mentch's attorney, Ben Rice, will be speaking about medical marijuana on Thursday at the County Building</i>
</blockquote>
The Santa Cruz Sentinel (8-14) announced a medical marijuana discussion Thursday August 17 3-5 PM in the afternoon in room 525 (701 Ocean, County Building), hosted by the Santa Cruz County Law Library. See http://www.santacruzsentinel.com/archiv ... 6local.htm .

The Sentinel reports that local Attorney Ben Rice and Allen Hopper, senior staff attorney with the American Civil Liberties Union Drug Reform Project. A question and answer period will follow.

Rice is currently defending Roger Mentsch, again on trial for selling medical marijuana. See the earlier stories:

Medical Marijuana Provider and In-Home Caregiver on Trial in Santa Cruz
http://santacruz.indymedia.org/newswire ... /index.php

and

Roger Mentch will continue the Hemporium, LLC. a Professional Caregiving Service
http://santacruz.indymedia.org/newswire ... /index.php

and

Roger Mentch Gets Leniency from Courts
http://santacruz.indymedia.org/feature/ ... /index.php

I interviewed Mentch for Free Radio on last week. [Go to http://www.huffsantacruz.org/brb.html and download that 8-10-06 show; the 12-minute Mentch interview is about 100 minutes into the show]

Due to a pending trial involving more marijuana "felonies", Mentch felt he couldn't be as informative as he might be. Mentch was arrested and jailed in August of last year--again for cultivating and selling marijuana through his Hemporium. He reports he was held for 7 days in jail on a probation violation hold. Not satisfied, the Marijuana Enforcement Team then went to a second judge (Almquist) and got a search warrant, tore up his entire crop, and destroyed it. There was only enough, he said, to supply himself and his two patients.

Said Mentch, "they wiped my computer, seized my phone, and tried to destroy my life." He has kept a low profile on this case, hoping it would be dismissed. At a hearing last Wednesday (8-9), the D.A. declined to do that.

This arrest was made in spite of Judge Stevens finding in the previous case that Mentch had the right to operate the Hemporium, in spite of being on probation. Mentch told me he is still appealing his sentence from the trial mentioned above. He didn't feel comfortable saying whether the August arrest and his current trial have hampered his medical marijuana operation--but it seemed obvious to me that he felt it had.

His trial is scheduled for October, and Stevens is apparently allowing, this time, a caregiver defense. Which he refused him last time. I guess this shows "progress'.

Neither Andrea Tessler, Valorie Corall, Anita Henry, Lisa of Greenway, or other activists have spoken out about this case yet. I hope they do.

It would also be nice if the well-funded ACLU's Drug Policy Project (which is also represented at the Thursday forum) would take a little time off from their spiffy third floor offices at Pacific Ave. and Cathcart. Maybe they can condescend to walk down a few flights and walk a few blocks across theriver to address the local drug war here against medical and recreational users. A war that's being run by fake liberal D.A. Bob Lee.

Maybe the local ACLU,which meets regularly, and has Mike Rotkin on the Board of Directors, could venture a few words attacking this absurdity. The Drug War, we should remember, was the model for the War on Terror. I believe ACLU has raised mucho dinero over the last five years, balleyhooing its support for civil liberties. It's now time to put their mouths and their money to good use.

I need more information on this case, but it seems outrageous that D.A. Bob Lee is going after him again. If anyone has any info on this, I urge them to post it. It might also be helpful to call the D.A.'s office at 454-2400.

Mentch also noted wearily that the local media and Board of Supervisors have had no interest in what he regards as a clear violation of SB420, the state law activating Proposition 215.

I've put through a call to Councilmember and Council candidate Mike Rotkin--who, I believe, wrote a letter for Mentch for his last trial. Perhaps he can throw some light ont his matter.

I hope to be checking his court file shortly (which anyone can do at the Municipal/Superior Court window on the main floor of the County Building).

We do know that Bob Lee and Sheriff Robbins are still accepting out-of-county government money that fund a D.A.and a Sheriff's position (or half of one) specifically for the purpose of prosecuting (and persecuting) marijuana providers.

We need to act now on this issue--and not wait until Proposition K (or whatever the City's "lowest priority" marijuana Initiative is called) passes in November.

The Drug War is happening daily to innocent people, whose lives are being torn apart. The assholes in business suits who pose as Santa Cruz liberals and facilitate this activity need to be called on their shit, loudly and clearly.

Perhaps Ben Rice, Mentch's attorney, can give us a thumbnail sketch of just how many people are getting the axe from Bob Lee in our local courts. There is a question-and-answer period on Thursday, for those who want to attend.

Perhaps when folks leave this meeting--if they leave a little early--they can drop by Bob Lee's office on the 2nd floor and let him know what they think of the latest prosecution of Mentch.

Roger says his trial date is October 16 in Dept. 6, presumably at 9 AM.

[budman]

August 18, 2006


Law library weighs in on medical marijuana

By Terri Morgan
Sentinel Correspondent
The Santa Cruz Sentinel

County residents who have a doctor's recommendation to use marijuana for medical purposes can legally possess up to 3 pounds of marijuana buds and have a 10-foot by 10-foot area of marijuana plants under cultivation.

That's according to attorney Ben Rice, who said Santa Cruz County has some of the most liberal medical marijuana regulations in the nation at an informational talk sponsored by the Santa Cruz County Law Library.

The session, which also featured Allen Hopper, a senior staff attorney with the ACLU Drug Reform Project, was designed to clear up confusion about the ever-changing regulations on the herb.

"This area has so much gray area, and it is evolving all the time so there's some confusion," said Rice, who has defended dozens of medical marijuana patients who have been arrested.

Although marijuana use and cultivation is illegal under federal law, it has been permitted in California since 1996, when voters passed the Compassionate Use Act. The law calls for patients with a doctor's recommendation to use marijuana in medical treatment to be exempt from criminal penalties.

Santa Cruz County, like all counties in the state, is required to issue identification cards to residents who have obtained a medical marijuana recommendation.

Rice explained that patients don't have to have a county card to be protected. However, the card allows them to enjoy added protection from arrest or citations.

Each county can enact its own guidelines regarding how much medical marijuana patients can legally possess.

However, federal law supersedes local regulations, Rice said.

"No matter what kind of recommendation you have, or what kind of illness you have, you're not protected if the federal government comes after you," said Rice. "But we all know that the federal government does not have the resources, or the will, to bust people who are taking care of their recommendation."

Head librarian Dolores Wiemers said she asked a library intern to put a collection of marijuana legal resources together after receiving numerous requests from patrons for information on medical marijuana. Rice helped advise the intern, then volunteered to present the talk as a free public service to draw attention to the law library, which is located in the basement of the County Government Center.

County Sheriff Steve Robbins, who noted that his predecessor Sheriff Mark Tracy helped get the county's medical marijuana ordinance passed, said in an interview before the talk the issue is a medical one, not a law enforcement issue.

"People talk about the war on drugs, but we're not in a war," Robbins said. "People have a right to their medicine."

Deputies don't seize medical marijuana if they can verify people's medical status, he added. Deputies will, however, look into neighborhood complaints about pot growers, largely because growers have been the target of robberies.

"Our main focus is methamphetamine," Robbins said. "Marijuana hasn't been our focus, except in the large-scale commercial grows" guarded by armed gunmen.

Santa Cruz County residents have long had a liberal attitude toward medical marijuana. In 2002, after federal agents raided a medical marijuana garden of the Wo/Men's Alliance for Medical Marijuana and arrested the organization's founders, city officials allowed WAMM to distribute medical marijuana to patients from the steps of City Hall.

Currently, there are two medical marijuana dispensaries operating in Santa Cruz. Voters in the city will also be asked to decide whether or not police should make enforcing marijuana laws a low priority when they go to the polls this fall.

Although there was no charge to attend, organizers had requested participants make a donation to benefit the Law Library, and WAMM. Rice offered Groucho Marx masks to people who contributed money. He said the give-away was a bit of black humor, because federal law trumps California's more liberal laws about medical marijuana.

"Nobody wants to be seen walking out of a medical marijuana talk by law enforcement," he said, referring to federal agents.

Contact Terri Morganat kalexander@santacruzsentinel.com

[Midnight toker]

San Diego's tensions are high over medical marijuana

Kenny Goldberg
KPBS News



KPBS SAN DIEGO (2006-09-07) Medical marijuana is legal in California, but some say you wouldn't know it in San Diego County. The Board of Supervisors is suing the state to overturn California's medical marijuana law. And the district attorney's office has worked with the DEA to close down all of the region's marijuana dispensaries. KPBS health reporter Kenny Goldberg has the story.

At a busy intersection in San Diego's Claremont area, there's a Coco's Restaurant, and a See's Candy shop. In a storefront just steps away, Jeff Meyer had been operating a medical marijuana dispensary.

But not anymore. Meyer says he had no choice but to close up shop earlier this summer, after his landlord got a call from a DEA agent.

Jeff Meyer: "And the guy said, your tenant is violating federal law, and if he doesn't shut his doors, we're going to come and arrest him. And that scared me enough to remain closed to this day."

In July, local law enforcement agencies and the DEA raided 13 dispensaries and arrested 15 people.

Meyer was one of ten other operators who just got a warning.

Today, there are no publicly operating medical marijuana dispensaries in San Diego County. And that suits deputy district attorney Damon Mosler just fine.

Mosler helped coordinate the crackdown. He says local dispensaries were selling to anyone. He offers an example.

Mosler: "A narcotics canine officer got a recommendation from a doctor. He went into the dispensary, filled out his dog's name in place of it. His dog was with him, he called his dog by name, and said I need some marijuana for Storm, and indeed they sold it to him. That doesn't seem right, I don't see my pharmacist at Rite-Aid or Savon selling me Vicadin for my cat."

But Jeff Meyer says that's not how he ran his business.

Meyer: "My shop not only called in the doctor's recommendations every time to verify that the patient was indeed a valid patient, but we even went a step further and verified the doctor's credentials online that his license was valid and current, and we kept records because, this is the best we thought we could do without any clear guidelines in San Diego."

The lack of clarity in the law itself is at the heart of the problem.

California's Prop 215 allows seriously ill patients to use marijuana with a doctor's permission. It allows patients or their caregivers to grow enough marijuana for medical use.

But there's a lot the law doesn't say.

Teresa Shilling is a spokeswoman for California Attorney General Bill Lockyer.

Teresa Shilling: "The law made it legal but it didn't really dictate how much marijuana is okay to have on hand for the patients, who and how is gonna supply that marijuana to patients. So it's created a lot of conflict between what is legal and what isn't legal."

State lawmakers tried to rectify the situation in 2003, when they approved SB 420.

The measure requires counties to launch an ID card program, to protect medical marijuana patients from arrest. It also allows local governments to establish guidelines for cooperatives, so that caregivers can get together to grow medicine for patients.

But the law doesn't mention dispensaries. And it doesn't legalize the buying or selling of marijuana.

Shilling concedes the law is confusing. But she says SB 420 does direct local governments to come up with ways for patients to access their medicine.

Shilling: "So that can come in a variety of different ways. Dispensaries or cooperatives are one way. So counties who shut down dispensaries or shut down cooperatives technically aren't restricting access."

But Craig McClain doesn't buy that argument. He's a long-time medical marijuana user who lives in Vista.

Craig McClain: "The dispensaries are closed therefore my access is denied. Cause I can't go on the street and look for it, and I can't grow it here, at home. I don't want to endanger my wife or my son."

McClain's spine was crushed in a workplace accident in the early 90's. He's used marijuana for years to ease chronic pain. Now, McClain says he's really suffering.

McClain: "Since I've been out of cannabis, I've noticed a lot of pressure on my spinal cord, extreme sweating attacks. I'm having no relief. Even with the hard medications that I have, I'm still barely able to try to get to sleep at night."

Deputy district attorney Damon Mosler says he sympathizes with patients. But he says the law is clear.

Mosler: "People are allowed to grow it. If you are too sick or unable to grow your own marijuana, you can designate someone who helps take care of you, to grow it for you. That is all the law allows."

Government officials in many other parts of California take a completely different view. Since SB 420 was approved, six counties and 24 cities have passed ordinances allowing dispensaries to operate.

Perhaps the biggest barrier to wider acceptance of medical marijuana is that California laws still conflict with federal laws.

And that's become the basis of a lawsuit against the state - filed by the San Diego County Board of Supervisors.

The supervisors are suing to overturn Prop 215 and SB 420 - arguing federal law making marijuana illegal should reign supreme.

A Superior Court judge is expected to issue a tentative ruling on the case in mid-November.

Kenny Goldberg, KPBS News.

© Copyright 2006, KPBS

[palmspringsbum]

The Hemporium, LLC... Medical Marijuana Conviction Overturned

IndyBay
by Roger Mentch
Thursday Oct 19th, 2006 10:36 AM


The 6th District Court of Appeals reverses conviction of medical marijuana caregiver and patient Roger Mentch. Defendant was denied a CAREGIVERS defense and the jury given wrong instructions.

Filed 10/18/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


THE PEOPLE,Plaintiff and Respondent,v.ROGER WILLIAM MENTCH,Defendant and Appellant. H028783 (Santa Cruz County Super. Ct. No. 07429)

Health and Safety Code section 11358 makes cultivating marijuana a crime. However, at the General Election held on November 5, 1996, the electors approved Proposition 215, entitled Medical Use of Marijuana. Relevant here, the measure added section 11362.5, the Compassionate Use Act of 1996 (hereinafter the CUA). Subdivision (d) of section 11362.5 provides that 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 the written or oral recommendation or approval of a physician. (People v. Mower (2002) 28 Cal.4th 457, 463.) In this case, among other things, we are asked to decide if appellant provided substantial evidence that he was a primary caregiver as defined by section 11362.5.

On March 11, 2005, a jury found appellant Roger William Mentch guilty of cultivation of marijuana (§ 11358, count one) and possession of marijuana for sale (§ 11359, count two). Further, the jury found true an allegation that in the commission of these offenses appellant was armed with a firearm, to wit, rifles. (Pen. Code, § 12022, subd. (a)(1).)

The trial court suspended the imposition of sentence and granted appellant probation for three years.

Appellant filed a timely notice of appeal on May 3, 2005.


On appeal, appellant raises 10 separate, but related issues only two of which we need to address in this opinion. First, he contends that the trial court improperly refused to provide to the jury a defense requested "primary caregiver" instruction to the cultivation charge. Second, the possession for sale conviction must be reversed because the court below failed to instruct sua sponte regarding his right to receive compensation for actual expenses.


As we shall explain, we agree with appellant's first and second contentions. Our conclusion that the trial court deprived appellant of a defense requires reversal of the judgment.

<span class=postbold>Facts and Proceedings Below </span>

Prosecution Evidence

Heidi Roth, a teller at Monterey Bay Bank, became familiar with appellant over the period of February to April 2003. Appellant came into the bank on several occasions and made large deposits of cash, each one totaling over $2,000. Roth noticed that some of the money appellant deposited smelled strongly of marijuana. The smell was so strong that it filled up the bank. The bank had to remove the money from circulation. Roth noted that the deposits consisted of mostly small bills, such as $20, $10, and $5 bills. The total amount of money that appellant deposited with the bank over a two-month period was $10,750. Consequently, on April 15, 2003, Roth filed a suspicious activity report with the Santa Cruz County Sheriffs' Office, relating the questionable nature of appellant's deposits.

Mark Yanez, a narcotics investigator with the Sheriff's Office, followed up on Roth's tip. He interviewed Roth and her supervisor, and examined the money appellant deposited with the bank. The money "reeked" of marijuana. The smell, coupled with the large amount of money deposited by appellant, suggested to Yanez that appellant was profiting from the sale of marijuana. As part of his follow-up investigation, Yanez obtained the PG&amp;E records for appellant's residence to see how much power he was using. Upon concluding his preliminary investigation, Yanez obtained a warrant to search appellant's house for marijuana and to seize the money appellant had deposited with Monterey Bay Bank.

Only two of appellant's deposits remained in the bank's vault at the time Yanez served his warrant: one consisting of $2,000 in cash made up of one $ 100 bill, 90 $20 bills, and 10 $10 bills, the other consisting of $2,740 in cash made up of nine $100 bills, 78 $20 bills, 14 $10 bills, and 28 $5 bills.

On June 6, 2003, Yanez and four deputies went to appellant's house to serve the warrant. Yanez noticed that there was a car parked in the carport and a Harley-Davidson motorcycle parked on the front porch. The deputies knocked on the front door and announced their presence. When appellant opened the door, Yanez told him they had a warrant to search his house for marijuana. Appellant told Yanez that he had a medical recommendation for marijuana. Yanez handcuffed appellant and detained him outside the house while the deputies went inside to secure the residence. A search of appellant's person turned up $253 in cash and a small vial of hash oil, or concentrated cannabis. Yanez advised appellant of his rights and interviewed him in a police vehicle parked outside appellant's residence.

Appellant told Yanez that he had a medical marijuana recommendation for colitis, dysphoria, and depression, and that he smoked about four marijuana cigarettes, totaling approximately one-sixteenth of an ounce, per day for medicinal purposes. When Yanez asked appellant if he sold marijuana, appellant responded that he sold to five medical marijuana users. Appellant told Yanez that he lost his job about a year and half earlier, and that he was not receiving any unemployment income. Appellant said that he paid his $1,600 rent and other bills with his savings and the money he made from selling marijuana. The deputies who went inside the residence conducted a protective sweep and discovered Laura Eldridge and her seven-year-old daughter in the living room. After searching them and finding no contraband, the deputies allowed them to leave.


A search of appellant's residence revealed a garbage can in the kitchen containing an altered PVC pipe containing marijuana leaf residue. In the living room, deputies found a functioning taser gun lying on a television stand near the front door. Also in the living room, the deputies found the following: books on growing marijuana; instructions on how to extract hash oil from marijuana plants; a picture depicting a large marijuana crop being cultivated outdoors; a photo album containing pictures of appellant and growing marijuana plants; receipts for a carbon dioxide tank; a coffee grinder containing marijuana residue; and four pairs of trimming shears with marijuana residue. Inside a closet in the living room, deputies found an unloaded .22 caliber pump-action rifle. On a shelf in the living room, they found a wooden box containing marijuana buds and smoking papers, a wooden box containing four baggies of marijuana and 10 vials of hash oil, a bowl containing hash oil, unused vials, and eyedroppers, and a 100-gram balance scale.

Yanez testified to the significance of some of the items found in the living room. He explained that carbon dioxide helps indoor marijuana plants photosynthesize and grow faster. Often, eyedroppers are used to transfer a batch of hash oil into smaller containers. Coffee grinders are used to grind up marijuana leaves and stems so that hash oil can be extracted. Typically, gram scales are used to weigh drugs in order to package them for sale. Usually, marijuana packaged for sale is divided up into similar amounts, like the baggies of marijuana discovered in appellant's living room, which contained 3.1 grams, 2.6 grams, 3.1 grams, and 3.6 grams of marijuana, respectively. Yanez told the jury that the baggies contained just under one-eighth of an ounce each, an amount normally sold on the street and worth approximately $40 to $60 each.

During their search, deputies discovered video surveillance cameras set up to record the front entrance to the house and the hallway outside one of the rooms on the first floor. The door of the room under surveillance was padlocked on the outside. Posted on the wall next to the door were several documents including a certificate in appellant's name from the Oakland Cannabis Buyers' Club, dated September 6, 2001. In addition, a physician's statement by Dr. Richard A. Hanson, dated September 6, 2001 listed appellant's conditions as colitis and depression. A medical marijuana recommendation from Dr. Thomas J. O'Connell dated July 24, 2002, listed appellant's conditions as insomnia, dysphoria, alcohol abuse, diarrhea, attention deficit disorder, and colitis. A notice from Compassionate Caregivers of Oakland, dated March 9, 2003, listed Michael Manstock as the grower and stated, "this is a medicinal marijuana crop."

Inside the room, deputies found 39 marijuana plants in the flowering or budding stage. Yanez explained to the jury that the flower or bud of a marijuana plant is the most desirable part of the plant because it contains THC resin, the substance that produces a "high" when smoked. The grow room also contained a video camera, a ventilation system with temperature and humidity gauges, an irrigation system, high-intensity hood lights, ballasts to support the extra electricity needed for the lights, metallic paper for reflecting the light onto the plants, and an attachment for a carbon dioxide tank. Yanez noted that a hood light costs $200 to $300 and its light bulb costs $50 to $100. A door leading from the grow room to an outdoor patio behind the house was reinforced with a metal strip and a window in the door was covered up with a board. Across the hallway from the grow room, deputies discovered a bedroom containing a bed, a dresser, and men's clothing. As well as a $617 PG&amp;E bill in appellant's name for the residence, a marijuana bud, pictures of indoor and outdoor marijuana crops with notations regarding the types of plants and growing times, a 200-gram digital scale, a pH tester, the deputies discovered a closet with a locked safe inside. When appellant unlocked the safe for the deputies, they discovered a loaded, but locked Baretta .40 caliber semiautomatic handgun, $140 in cash, checkbooks in appellant's name from Monterey Bay Bank, Washington Mutual, and Bank of America, a bag containing 3.48 grams of psilocybin mushrooms, and certificates of title in appellant's name for a Toyota pickup truck and a 2001 Harley-Davidson motorcycle.

In another room next to the kitchen, deputies discovered 57 "clone" marijuana plants. Yanez explained to the jury that a clone plant results when a clipping taken from a female marijuana plant is placed in cloning solution and then planted in soil. This process ensures that the cloned plant will be female, which is desirable because female plants are the ones that produce the high-quality buds used for smoking. The clone room contained two ionizers, which work by taking in the surrounding air and filtering out any odors, a strainer used for making hash oil, a partially filled box of .40 caliber handgun ammunition, and an unloaded .22 caliber bolt-action rifle leaning against the wall. Yanez explained that typically people would use ionizers to mask the strong odor if they do not want their neighbors to know they are growing marijuana.

Deputies discovered a closet inside the clone room with three two-by-fours tacked over the door. Inside the closet was a trapdoor leading down to a basement area. The key to the door leading to the basement area was found on appellant's person. In the basement, deputies found a second grow room containing 43 marijuana plants in the flowering or budding stage. The room contained an irrigation system, moveable hood lights on a track system, and tags on the plants listing the different strains of marijuana and the dates on which they were planted.

In a second room in the basement, deputies found 48 marijuana plants in the growing or vegetative stage. Yanez told the jury that the plants had not yet begun to bud. The plants had markers on them identifying the marijuana strain that was being grown. Yanez opined that the markers are used to determine the strain that produces the most buds, so that those strains can be used during the next harvest. As different strains can produce different quantities of THC, knowledgeable growers can maximize their THC content by growing the more productive strains.

In a small closet in the basement, deputies found three "mother" plants, which Yanez opined were likely the female plants from which the clippings were taken to make the clone plants upstairs. The plants had fluorescent lights above them. Yanez told the jury that because marijuana plants die after they bud, mother plants are kept in a constantly lit room to prevent budding, so that they can continue to live and produce clippings for more clone plants.

Deputies confiscated all of the marijuana plants except for the three mother plants. Yanez ordered the deputies to leave the mother plants behind because he knew appellant had a valid medical recommendation and that he would need to grow some marijuana to meet his own personal medical needs.

Yanez described to the jury the marijuana growing cycle and explained that the entire growing process can take anywhere from two to three months from start to finish. Thus, a grower harvesting every two months will have six harvests a year, while a grower harvesting every three months will have four harvests a year. A marijuana plant is harvested when it has fully flowered. The buds are cut off, trimmed, dried out, and then packaged. Growers gather THC resin from the leaves and stalks of the plant to make hash oil. Although the buds contain a higher level of THC than the leaves and stalks, both the buds and the resin from the leaves and stalks are used to obtain a "high." The buds are smoked while the resin is orally ingested, added to a marijuana cigarette, or added to baked goods.

In order to grow marijuana indoors, Yanez explained the plants need plenty of light to mimic the light from the sun. Growers typically use hood lights, which use high-intensity light bulbs, during the vegetative and flowering stages. Lower intensity fluorescent lights are used during the start phase so as not to harm the clone plants. Timers are used to control the lighting throughout the growing cycle. During the start phase, the fluorescent lights will be on for 24 hours a day to encourage fast growth. During the vegetative stage, the hood lights will be on for 16 to 20 hours a day to simulate the summer months, during which time marijuana plants do their most extensive growing. During the flowering stage, the amount of time the hood lights are on is reduced to eight to 10 hours a day to simulate the winter months, during which time marijuana plants flower and produce buds. Yanez opined that people who grow marijuana indoors often do so to avoid detection by law enforcement or other people. In addition, although outdoor plants produce more buds, indoor plants have a higher THC content and their growing season is much shorter.

Yanez told the jury that on the street, one gram of marijuana costs $20, 3.5 grams (or one-eight of an ounce) costs $40 to $60, one-half of an ounce costs $ 150 to $200, one ounce costs $300 to $400, and one pound costs about $4,000. Sellers discount their prices on larger quantities to increase their sales and to save them the trouble of packaging the marijuana in smaller quantities. Yanez explained that when he investigates whether a grower is using marijuana for medicinal purposes or for other purposes, he first verifies that the person has a medical recommendation to use marijuana. Once that has been confirmed, Yanez looks for any indications that the person is selling marijuana, such as the presence of scales for weighing the marijuana, packaging materials, notes related to marijuana sales, large amounts of money or other assets attained through drug sales, or large quantities of marijuana that are out of proportion to the person's medical needs. Yanez also considers the nature of a person's medical ailment in cases when there are indications the marijuana is being sold. Yanez told the jury that medical recommendations for marijuana are easy to obtain, and a recommendation for a condition that is "outside the spirit of the law" would indicate to him that the marijuana is being sold rather than being used for medicinal purposes. Yanez noted that people who sell marijuana from their residence do not typically sell to people they do not know.

In his experience, Yanez noted that people who have legitimate medical marijuana recommendations are usually forthright with authorities. They will check to make sure that the marijuana they are growing for their own personal use complies with the guidelines set by the medical marijuana law.

Considering the evidence seized from appellant's bank and residence, as well as his statement to Yanez, Yanez opined that, while appellant may have personally consumed some of the marijuana he grew, his operation was primarily a for-profit commercial venture. Yanez also opined that the guns kept around appellant's house were a part of the marijuana growing operation. Yanez explained that growers or sellers often use guns to protect their marijuana against theft. Yanez found it significant that the rifles in appellant's house were located in rooms where they could be easily retrieved if someone broke into the house. Yanez found it unremarkable that the guns were unloaded, noting that the display of a firearm is typically enough to scare off an unarmed person.

Deputy William Gazza testified as an expert on the manufacture of concentrated cannabis. Taking into account the evidence seized at appellant's house, Gazza opined that appellant was manufacturing concentrated cannabis in the powdered form of "kief" and in the liquid form of hash oil.

<span class=postbold>Defense Evidence </span>

Leland Besson testified that he had known appellant for two years. In June 2003, Besson was on disability and had a medical marijuana recommendation for a bad back, neck, and joints. At the time, he was smoking approximately two to three grams of marijuana a day. For about one year before appellant was arrested, Besson purchased his marijuana exclusively from appellant, who knew about Besson's medical marijuana recommendation. Appellant supplied medical marijuana through his business, the Hemporium. Besson gave appellant $ 150 to $200 in cash every month for one and one-half ounces of marijuana, the amount Besson usually consumed in one month.

Laura Eldridge used to drive Besson over to appellant's house to get the marijuana. While there, Eldridge also obtained marijuana from appellant. Eldridge cooked and cleaned for Besson. In addition to driving him to the grocery store, Eldridge drove Besson to doctors' appointments, and to pick up his medications. The only time Besson saw appellant was when Eldridge took him to appellant's house to get marijuana.

Laura Eldridge testified that she had known appellant for about three years. At the time of trial, they were involved in a romantic relationship. In June 2003, she was working as a caretaker for Besson. At the time, she herself had a medical marijuana recommendation for migraine headaches and posttraumatic stress disorder. She was smoking about five or six marijuana cigarettes a day and consuming about one ounce of marijuana a month. Eldridge obtained marijuana exclusively from appellant for about one year before his arrest. Appellant provided the marijuana through his medical marijuana business, the Hemporium. Eldridge obtained the marijuana from appellant every month, paying him $200 to $250 in cash for one ounce and $25 in cash for one-eighth of an ounce if she needed more.

Eldridge was at appellant's house getting her daughter ready for school on the morning of appellant's arrest. At the time, she and appellant were not living together but were seeing each other romantically, and Eldridge had stayed over at appellant's house the night before the search warrant was served. After deputies searched her and her daughter, they allowed her to leave to take her daughter to school. Eldridge testified that the mushrooms the deputies found in appellant's safe belonged to her son's friend. The day before appellant's arrest, the boy showed the mushrooms to Eldridge. She confiscated them, brought them over to appellant's house, and told him to put them in his safe. Eldridge did not have access to the safe. Eldridge had "no idea" why she saved the mushrooms as opposed to just flushing them down the toilet.

Appellant testified in his own defense. In March 2002, he lost his job as a Unix Systems administrator. At the time, he was making $90,000 a year. That same year, he obtained a medical marijuana recommendation and began growing marijuana. He learned how to grow marijuana from reading books, searching the Internet, and talking to people. He kept marijuana plants in all three stages of growth so that he was in a constant cycle of marijuana production, which produced a yield of four harvests a year. He opened the Hemporium, a care giving and consultancy business, in March 2003. The purpose of the Hemporium was to give people safe access to medical marijuana. Appellant's medical marijuana recommendation was still current on the day the police searched his home. At that time, he smoked four to six marijuana cigarettes a day (approximately one-sixteenth of an ounce), and consumed between one-and-one-half to two ounces of marijuana a month. The hash oil found in his house was his first-ever batch and the vial found on his person was for his own personal use. At the time, he used hash oil on a regular basis.

Appellant regularly provided marijuana to five other individuals, including Besson, Eldridge, and a man named Mike Manstock. Sometimes he did not charge them. All five individuals had valid medical marijuana recommendations. Appellant did not provide marijuana to anyone who did not have a medical marijuana recommendation. Occasionally, he took any extra marijuana he had to two different cannabis clubs, The Third Floor and an "unknown - unnamed place." Although a majority of the marijuana plants in appellant's home belonged to him, some belonged to Manstock. Appellant had a notice on the door to that effect. In addition, appellant let Besson and Eldridge grow one or two plants.

Appellant provided marijuana to Besson about once every month and to Eldridge about once or twice every month. On average, they each gave him $150 to $200 for an ounce and a half of marijuana a month. Appellant considered his marijuana "high-grade" and provided it to Besson and Eldridge for less than street value. He used the money they paid him to pay for "nutrients, utilities, part of the rent." Appellant did not profit from his sales of marijuana, and sometimes he did not even recover his costs for growing the marijuana. Appellant counseled his customers about the best strains of marijuana to grow for their ailments and the cleanest way to use the marijuana. He took a "couple of them" to doctors' appointments on a sporadic basis. Although he asked all five of them to come to court and testify on his behalf, only Besson and Eldridge showed up. He did not subpoena the others because one of them was out of state, another one did not want to be involved because his father was an attorney, and the other one did not want to testify. At the time of the search, appellant had checking accounts at Monterey Bay Bank, Bank of America, and Washington Mutual. In addition, he had savings in the form of cash and stocks. His only source of income in 2003 was from the Hemporium. Appellant spent $300 to $600 a month on electricity to run his marijuana growing equipment, and "several hundred dollars a month on nutrients." A one-quart bottle of growth enhancement alone cost $50.

The equipment appellant used to grow the marijuana was also expensive; each of the hood lights cost $500, the irrigation system cost "[h]undreds of dollars," the timers, chemicals, and nutrients cost $500, and the carbon dioxide tank cost $300. Appellant's other monthly expenses included $1600 in rent, $50 for gas for his vehicles, $200 for vehicle insurance, $400 for food and entertainment, and $30 credit card payments.

Appellant owned the 1992 model BMW parked in his carport on the day of the search. He purchased the car in 1997 for $ 17,500. In 2003, he still owed monthly payments of $107 on the car. Appellant purchased the Harley-Davidson motorcycle brand-new in 2001 for $17,000. In 2003, he still owed monthly payments of $363 on the motorcycle. In addition, he owned a 1987 Toyota pickup truck in 2003.

Appellant testified that he had four surveillance cameras set up around his house at the time of the search. One camera was located outside the front door and monitored the walkway up to the house as well as the porch where he parked his motorcycle. Appellant set up the cameras after being burglarized in order to protect his motorcycle and home from theft. A former girlfriend gave him the rifles for safekeeping back in 1994 or 1995. He used the rifles for target practice and for protection. Neither rifle was loaded. The one found in the clone room was inoperable. Appellant did not keep ammunition for either rifle in his house. He purchased the taser gun and the Baretta handgun for protection. Appellant kept the Baretta, which was in working condition, inside the safe.

Appellant confirmed that the mushrooms belonged to a friend of Eldridge's son. The day before the search, Eldridge gave them to appellant because she did not know what they were. He put them in the safe because he did not know if they were poisonous and he thought it was "a good place to . . . keep kids away." Appellant did not use mushrooms, and he "should have" thrown them away. Appellant used the 200-gram electronic scale to weigh jewelry and marijuana. Since the scale was worth approximately $200, he kept it secured in his bedroom to protect it from thieves.

Christopher Conrad, a cannabis expert, testified for the defense. Conrad testified that because of the difficulties in obtaining and growing marijuana, it is not unusual for a medical user of marijuana to keep a significant amount of marijuana in reserve. Medical users who grow their marijuana indoors have to keep a four-month supply on hand to get them through the next harvest. Those who grow their marijuana outdoors have to keep a whole year's supply on hand. Depending on how much a person uses, the amount of marijuana that is kept in reserve ranges from one to four pounds. It is not unusual for people who use marijuana to keep their marijuana in different bags. Users might do this to keep track of the amount of marijuana they have left or to keep track of the different kinds of marijuana they have. Conrad noted that the basement area of appellant's house was not a good place to grow marijuana, and that indications of yellowing on the plants in the basement suggested a potential problem in the growing process. He felt that the plants in the basement were "doomed," that the chance of obtaining usable marijuana from those plants was low. Not counting the plants in the basement, appellant's crop had a potential yield of three to six pounds of usable marijuana per year. If the basement plants had not been in such bad condition, the entire crop would have yielded 12 pounds of usable marijuana per year. Conrad explained that a person who smokes four to six marijuana cigarettes a day consumes approximately three pounds of marijuana a year. A person who smokes an ounce and a half a month consumes one pound, two ounces of marijuana a year. Conrad noted that the presence of the following factors would have made it more likely that appellant's marijuana garden was for commercial purposes: a ready supply of marijuana packaged for sale; pay-owe sheets, a larger number of starter plants, higher-yielding plants, fewer varieties of marijuana, and more foot traffic to and from appellant's house. The presence of scales in appellant's house did not contribute to Conrad's opinion "one way or the other" because scales are sometimes used for legitimate purposes by medical marijuana patients.

After the court instructed the jury and submitted the case to them, they propounded several questions. First, the jury asked whether "the certificates, displayed at Hemp Emporium LLC, allow[ed] Mr. Mentch to sell or distribute marijuana to other card holding patients under the terms of the law?" The court answered, "no, it's not lawful to distribute or sell to other card holders, given the evidence in this case, and I think, if you'll check the instructions, it's consistent with the instructions." Later, the jury asked to see the "Law on Proposition 215." The court told the jury that they had all the law they needed in the jury instructions. Thereafter, the jury propounded two more questions: "Was Robert [sic] Mentch within his right to manufacture hash oil? Was the amount in his possession a reasonable amount under the Compassionate Use Act . . . ?" The court responded, "It's the instruction that I gave you on the Compassionate Use Act, medical marijuana defense. You know which one it is. . . . [] The question about was this a reasonable amount, those types of things, those are questions for you to answer."

After more deliberations, the jury asked if appellant could "recover his cost from the manufacture of marijuana from patients using the medicine under [Proposition] 215?" The court reiterated that the answer was "the same one I gave before . . . . Based upon the evidence in this case, he is not authorized by the law to sell or distribute marijuana." The jury's fifth and final question concerned whether the taser related to the gun enhancement allegations. The court informed the jury that the firearm allegations related only to the two rifles. Shortly thereafter, the jury returned its verdicts.

<span class=postbold>Discussion </span>

In his first assignment of error appellant contends that the "trial court improperly refused to provide a requested 'primary caregiver' instruction to the charge of cultivation" of marijuana.

In full, CALJIC No. 12.24.1 provides: "The [possession] [or] [cultivation] [or] [transportation] of marijuana is not unlawful when the acts of [defendant] [a primary caregiver] are authorized by law for compassionate use. The [possession] [or] [cultivation] [or] [transportation] of marijuana is lawful (1) where its medical use is deemed appropriate and has been recommended or approved, orally or in writing, by a physician; (2) the physician has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief; [and] (3) the marijuana [possessed] [cultivated] [transported] was for the personal medical use of [the patient] [_______] [; and (4) the quantity of marijuana [[possessed] [or] [cultivated], and the form in which it was possessed were reasonably related to the [patient's] [_______] then current medical needs, not exceeding [ (limits) ] [eight ounces of dried marijuana per qualified patient] [six mature or twelve immature marijuana plants per qualified patient] unless the [qualified patient] [or] [[primary caregiver] has a doctor's recommendation that this quantity does not meet the qualified patient's medical needs, in which case the [qualified patient] [or] [[primary caregiver] may possess an amount of marijuana consistent with the patient's needs.] [transported, and the method, timing and distance of the transportation were reasonably related to the [patient's] [_______] then current medical needs.] [] Only the dried mature processed flowers of the female cannabis plant or the plant conversation shall be considered when determining allowable quantities of marijuana [under this section]. [] [The term 'qualified patient' means a person who is entitled to the protections of the compassionate use law [, but who does not have an identification card issued by the state].] [] [A 'primary caregiver' is an individual designated by [the person exempted] [ (name) ] who has consistently assumed responsibility for the housing, health, or safety of that person.] [] ['Recommendation' and 'approval' have different meanings. To 'recommend' something is to present it as worthy of acceptance or trial. To 'approve' something is to express a favorable opinion of it. The word 'recommendation,' as used in this instruction, suggests the physician has raised the issue of marijuana use and presented it to the patient as a treatment that would benefit the patient's health by providing relief from an illness. The word 'approval,' on the other, suggests the patient has raised the issue of marijuana use, and the physician has expressed a favorable opinion of marijuana use as a treatment for the patient.] [] To establish the defense of compassionate use, the burden is upon the defendant to raise a reasonable doubt as to guilt of the unlawful [possession] [or] [cultivation] [or] [transportation] of marijuana."

Before trial, the prosecutor filed a motion in limine to exclude any references by counsel during voir dire, testimony, or closing that appellant was a caregiver to Ms. Eldridge or Mr. Besson. The prosecutor asserted that they could testify to any care that appellant provided to them, but argued that the determination of whether appellant was a caregiver rested with the jury. The court granted the prosecutor's motion.

After Ms. Eldridge and Mr. Besson testified, the court said that the evidence was insufficient to show that appellant provided "the defined caregiver services." Defense counsel submitted to the court a brief in which she argued that a person may qualify as a patient's primary caregiver when they consistently assume responsibility for a patient's health by providing medicinal marijuana upon a doctor's recommendation or approval, and may be reimbursed for their services in so doing.

The court held that absent anything more, by just providing medical marijuana appellant was not a caregiver. Defense counsel objected that refusing the caregiver instruction effectively denied appellant the right to put on a defense and hence a fair trial.

Subsequently, appellant took the stand. As noted, he testified that he regularly provided marijuana to five individuals, including Besson, Eldridge, and Mike Manstock. Furthermore, he counseled them about the best strains of marijuana to grow for their ailments and the cleanest way to use the marijuana. Moreover, he took a "couple of them" to doctors' appointments on a sporadic basis.

During discussion between counsel and the court on the instructions to be given to the jury, the court explained that consistent with prior rulings the jury would be instructed with CALJIC No. 12.24.1, but any references to care giving would be deleted from the instructions.

Appellant argues that the court below "introduced a new, non-statutory 'bright line' rule under which no patient who requires medical marijuana can ever lawfully obtain the drug from another person unless, and only if, the patient also has other, non-medical marijuana health, safety or housing needs that the medical marijuana caregiver provides."

The compassionate use defense has its origins in Proposition 215. As noted, Proposition 215 added section 11362.5 to the Health and Safety Code. That section provides: "(a) This section shall be known and may be cited as the Compassionate Use Act of 1996. [] (b)(1) The [P]eople of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows: [] (A) 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 cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. [] (B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction. [] (C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana. [] (2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes. [] (c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes. [] (d) 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 the written or oral recommendation or approval of a physician."

The CUA defines a primary caregiver as "the individual designated by the person exempted under [section 11362.5] who has consistently assumed responsibility for the housing, health or safety of that person." (§ 11362.5, subd. (e).)

"It is well settled that a defendant has a right to have the trial court, [even] on its own initiative, give a jury instruction on any affirmative defense for which the record contains substantial evidence (People v. Michaels (2002) 28 Cal.4th 486, 529 . . .) -- evidence sufficient for a reasonable jury to find in favor of the defendant (Mathews v. United States (1988) 485 U.S. 58, 63 . . .) -- unless the defense is inconsistent with the defendant's theory of the case (People v. Breverman (1998) 19 Cal.4th 142, 157 . . .). In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.' [Citations.]" (People v. Salas (2006) 37 Cal.4th 967, 982-983.) Thus, whether the trial court erred in failing to instruct the jury that a defendant is not guilty of the crime of cultivating marijuana (§ 11358) if he is a primary caregiver, turns on whether the defendant offered substantial evidence that, if believed, by the jury, would raise a reasonable doubt as to the unlawfulness of the cultivation.

Appellant argues that his uncontradicted testimony established that he provided counseling services to his patients and occasionally had assisted them to their medical appointments. In addition to medical marijuana, he furnished valuable advice regarding what types of marijuana and methods of administration were best. This constitutes evidence of care giving under section 11362.5 because he aided the health of these five patients, and he had accepted responsibility, at least with respect to the above services.

Relying on People v. Mower, supra, 28 Cal.4th 457 (Mower) and People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383 (Peron), and People v. Urziceanu (2005) 132 Cal.App.4th 747, (Urziceanu), respondent argues there is "no case law to support appellant's nonsensical reading of section 11362.5's definition of primary caregiver."

In Mower, detectives interviewed the defendant while he was in the hospital because of complications arising from his diabetes. The defendant told the detectives that he grew marijuana for himself and for two other patients, who also had prescriptions. (People v. Mower, supra, 28 Cal.4th at pp. 465-466.) Later, at trial, the defendant testified that he kept the 31 plants for himself. The defendant denied the truth of his hospital statement, claiming that he made the statement under the influence of various medications with which he was being treated. (Id. at p. 466.) After the presentation of the evidence, the trial court instructed the jury on the crimes of possession and cultivation of marijuana and gave an instruction based on the compassionate use defense based on the defendant's claim that he was a qualified patient, but without any reference to a qualified primary caregiver. (Ibid.)

On appeal, Mower argued that section 11362.5, subdivision (d), granted him complete immunity from prosecution, shielding him not only from prosecution, but even from arrest. (Mower, supra, 28 Cal.4th at p. 466.) The Court of Appeal affirmed the judgment and the Supreme Court granted review to address the question of whether section 11362.5 grants a defendant complete immunity from prosecution. (Id. at pp. 466-467.)

After holding that section 11362.5, subdivision (d), grants a defendant a limited immunity from prosecution by allowing a defendant to set aside an information or indictment prior to trial, the Supreme Court recognized that section 11362.5 allows a medical defense at trial. (Mower, supra, 28 Cal.4th at p. 474.) The Supreme Court then addressed Mower's argument that the Court of Appeal erred by rejecting his claim that the trial court improperly failed to instruct the jury on a section 11362.5, subdivision (d), defense based on a theory that he was a qualified caregiver. (Id. at p. 475.)

The Supreme Court concluded that such an instruction would not have been supported by substantial evidence noting that for a person to be a qualified primary caregiver, he or she must be " 'designated' " as such by a qualified patient, and must have " 'consistently assumed responsibility' for the qualified patient's 'housing, health or safety.' " (Mower, supra, 28 Cal.4th at p. 475.) The Supreme Court concluded that since the "sole evidence relevant to this issue was the statement made by defendant at the hospital, the truth of which he denied at trial, that he kept the 31 marijuana plants not only for himself but also for two other unnamed persons" there was no evidence that the defendant had been designated by either one as a primary caregiver, or that he consistently had assumed responsibility for either person's housing, health or safety. (Ibid.)

In Peron, Division Five of the First District Court of Appeal addressed the issue of the effect of section 11362.5 on section 11570, which requires that the owners and operators of any "drug house" be enjoined from continuing to operate such a drug sales facility. (Peron, supra, 59 Cal.App.4th at p. 1389.)

After the passage of Proposition 215, the defendants in Peron, the operators of a Cannabis Buyers' Club, moved to modify a preliminary injunction that the trial court had granted, prior to the passage of that initiative, enjoining the defendants from using the club for the purpose of selling, storing, keeping or giving away marijuana. (Peron, supra, 59 Cal.App.4th at pp. 1385-1387.) The defendants moved the trial court to modify the injunction on the ground that they were primary caregivers as defined by the newly enacted section 11362.5. (Id. at p. 1387.) The trial court issued an order modifying the injunction, which stated that the defendants " 'shall not be in violation of the injunction issued by this Court if their conduct is in compliance with the requirements of [section] 11362.5. [Defendants] may possess and cultivate medicinal marijuana for their personal medicinal use on the recommendation of a physician or for the personal medicinal use of persons who have designated [defendants] as their primary caregiver pursuant to [section] 11362.5 (e) whose physician has recommended or approved the use of medicinal marijuana either orally or in writing to the [defendants].' " (Id. at pp. 1387-1388.)

Among other things, the Peron court concluded that section 11362.5 only exempts a patient or the patient's primary caregiver from prosecution under section 11358 (marijuana cultivation) when either the patient or the primary caregiver cultivates marijuana only for the patient's personal medical purpose upon the written or oral recommendation or approval of a physician. (Peron, supra, 59 Cal.App.4th at pp. 1389-1390.) Since the defendants operated a commercial establishment selling marijuana to qualified public purchasers, they did not qualify as primary caregivers even though they obtained from each purchaser a designation as such prior to and as a condition of a marijuana sale to that person. (Id. at p. 1390.) Specifically, the Peron court concluded that "[o]ne maintaining a source of marijuana supply, from which all members of the public qualified as permitted medicinal medical users may or may not discretionally elect to make purchases, does not thereby become the party 'who has consistently assumed responsibility for the housing, health or safety' of that purchaser as section 11362.5 . . . requires." (Ibid.)

In Urziceanu, supra, 132 Cal.App.4th 747, the defendant claimed that he created a legal cooperative, FloraCare, to grow and supply medical marijuana for himself as a patient qualified to use it under the CUA and for other patients and primary caregivers who also qualified under the CUA. (Id. at p. 758.) A jury found the defendant guilty of conspiracy to sell marijuana and being a felon in possession of a firearm and ammunition. On appeal to the Third District Court of Appeal, the defendant argued that the trial court erred in refusing to allow him to present a defense that the CUA allowed him to form FloraCare to collectively cultivate and possess marijuana for qualified patients and primary caregivers. The defendant contended that nothing in the CUA prohibited qualified patients and their caregivers from joining together to pool efforts to collectively cultivate and/or obtain medical marijuana for their own personal medical uses. (Id. at p. 767.)

In disagreeing with the defendant, the Urziceanu court noted that the CUA "is a narrowly drafted statute designed to allow a qualified patient and his or her primary caregiver to possess and cultivate marijuana for the patient's personal use despite the penal laws that outlaw these two acts for all others." (Urziceanu, supra 132 Cal.App.4th at pp. 772-773.) However, the Urziceanu court concluded that the defendant could not raise a compassionate use defense to a conspiracy charge by arguing that he lawfully and cooperatively used, cultivated, and assisted others in obtaining medical marijuana. Specifically, the court noted that the defendant "was not attempting to justify his actions of conspiring to possess marijuana for sale, or selling it, by proving that he was a patient and all the marijuana was for him. Neither did he attempt to prove that he was the primary caregiver for all of the patients who patronized his cooperative, FloraCare. Defendant did not present evidence that he consistently provided for the housing, health or safety of the other members of FloraCare beyond their designation of him as a primary caregiver in the documents submitted to him." (Id. at p. 773.)

We find each of these cases upon which respondent relies to be distinguishable from this case. In Mower, the defendant did not even claim he was a primary caregiver at trial. Rather, his defense was that all the plants were for his personal use. (Mower, supra, 28 Cal.4th at p. 475.) Furthermore, he did not attempt to present any evidence that the two patients designated him as their primary caregiver, or that he had consistently assumed responsibility for each person's housing, health or safety. (Ibid.)

In Peron, the defendants did not present any evidence that they had consistently assumed responsibility for their buyers' housing, health or safety beyond the fact that they maintained a medical marijuana supply from which qualified buyers could purchase, and their patrons designated them as primary caregivers. (Peron, supra, 59 Cal.App.4th at p. 1390, 1395.)

Finally, in Urziceanu, the defendant did not present any evidence at trial that he was a primary caregiver for the patrons of FloraCare beyond the designation as such in the documents that his purchasers submitted to him. (Urziceanu, supra, 132 Cal.App.4th at p. 773.)

In this case, by granting the prosecution's motion in limine, the court did not permit appellant to present to the jury any evidence that Eldridge and Besson had designated him as their primary caregiver. However, defendant did present evidence that he not only supplied Eldridge and Besson and other patients with marijuana, but he counseled them on what types of plants and methods of administration were best for their ailments. In determining that the primary caregiver defense was inapplicable to appellant as a matter of law, we believe the trial court infringed on appellant's constitutional entitlement to present a defense. (Cf. People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1445, [finding a due process violation in trial court's refusal to allow the defendant to rely on the CUA as a defense to a probation violation allegation].)

We agree with the First District Court of Appeal that there "is no prohibition against designating as primary caregiver an individual who also serves in that capacity for others, provided the caregiver . . . consistently provides for the housing, health or safety of the designating patient." (Peron, supra, 59 Cal.App.4th at p. 1399.) Moreover, we find support in Peron for the notion that appellant, by consistently growing and supplying physician-approved or prescribed medicinal marijuana for a section 11362.5 patient, was meeting an important health need of several medical marijuana patients. (Id. at p. 1400.)

Where, as here, appellant presented evidence that he not only grew medical marijuana for several qualified patients, but also counseled them on the best varieties to grow and use for their ailments and accompanied them to medical appointments, albeit on a sporadic basis, there was enough evidence to present to the jury. Decisions about the relative merits of a defense are reserved for the triers of fact. Accordingly, a party who chooses a jury as his or her trier of fact is entitled to their decision. As the trial court conceded in this case, the court left the jury with no choice. The jury had to find appellant guilty on counts one and two. Thus, in effect, the court directed the verdict. Given the state of the evidence, we believe that it was for the jury to decide if appellant was a primary caregiver.

Our Supreme Court has not yet determined what test of prejudice applies to the failure to instruct on an affirmative defense. (People v. Salas, supra, 37 Cal.4th at p. 984.) Respondent argues that appellant suffered no prejudice under either federal or state harmless error review. (Chapman v. California (1967) 386 U.S. 18; People v. Watson (1956) 46 Cal.2d 818, 836.) We disagree and find prejudice under the more rigorous Chapman test. Under this test, the state must prove the error harmless beyond a reasonable doubt. (People v. Salas, supra, 37 Cal.4th at p. 984.)

Respondent argues that the prosecution presented overwhelming evidence that appellant was cultivating the marijuana strictly for commercial purposes and the jury's finding on the possession for sale count shows that it believed the prosecution's theory of the case, which suggests that any error in failing to instruct the jury on the primary caregiver defense was harmless. At best, respondent's argument begs the question and brings us to appellant's second assignment of error in this case. Specifically, that the court below failed to instruct the jury sua sponte regarding appellant's "right to receive compensation for actual expenses."

At the outset, we point out that the compassionate use defense provided by section 11362.5 is not available to a charge of possession for sale under section 11359. (People v. Galambos (2002) 104 Cal.App.4th 1147, 1165-1167; Peron, supra, 59 Cal.App.4th at p. 1389.) However, under section 11362.765, subdivision (c), "[a] primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for services provided to an eligible patient or person with an identification card to enable that person to use marijuana . . . , or for payment for out-of-pocket expenses incurred in providing those services, or both, shall not, on the sole basis of that fact be subject to prosecution or punishment under Section 11359 [possession of marijuana for sale] . . . ."

As a threshold matter, we recognize that section 11362.765 was enacted in October 2003, several months after appellant's arrest. However, "[t]o the extent that the Medical Marijuana Program [Act] sets forth new affirmative defenses, expands the defense identified by the Compassionate Use Act, and contains no savings clause, that law must be retroactively applied." (People v. Frazier (2005) 128 Cal.App.4th 807, 826.) Respondent concedes as much. However, respondent argues that the "reasonable compensation defense" to a charge of possession for sale is available only to a qualified primary caregiver.

We agree with respondent, but point out that this argument brings us back full circle to respondent's reasoning as to why the trial court's error in failing to give a defense requested instruction on an affirmative defense was harmless error. Since the "reasonable compensation defense" is only available to a qualified primary caregiver, and appellant was deprived of the opportunity to rely on this defense, it is no wonder that the jury convicted appellant of possession of marijuana for sale. They had no choice given the evidence that the court allowed counsel to present. Again, it was for the jury to decide if the money that appellant deposited in the bank was "reasonable compensation" for his services of providing medical marijuana, counseling and other support services to qualified patients, or if he was making a substantial profit from sales of marijuana. It is safe to say that the evidence was reasonably susceptible of different interpretations given the testimony of both Yanez and appellant as to the costs of producing the marijuana.

As to the issue of prejudice, again, respondent argues that that there was overwhelming evidence that appellant was "profiting handsomely from his marijuana sales." We point out that this was a disputed matter at trial. As such, the court should have presented the question to the jury with appropriate instructions.

Since we have determined that the trial court prejudicially infringed on appellant's constitutional entitlement to present a defense, we are compelled to reverse the judgment as to counts one and two. As noted, normally, we would not need to address appellant's remaining contentions. However, for the guidance of the trial court in the event of a retrial we address an additional contention.

Appellant argues that the trial court erred when it failed to provide a sua sponte instruction regarding "safe harbor" quantities of marijuana under Santa Cruz County guidelines.


Section 11362.77 enacted as part of the Medical Marijuana Program Act provides that a qualified patient or primary caregiver "may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient." (§ 11362.77, subd. (a).) Pursuant to section 11362.77, subdivision (c), "Counties and cities may retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state limit set forth in subdivision (a)."

In accordance with section 11362.77, subdivision (c), Santa Cruz County's Medical Marijuana guidelines provide that a qualified patient, or the designated primary caregiver of the patient "may possess amounts of marijuana up to three pounds of dried cannabis bud or conversion per year" and "may cultivate cannabis in an amount not to exceed more than 100 square feet of total garden canopy, as measured by the combined vegetative growth area." (Santa Cruz County Code, tit. 7, ch. 7.124, § 7.124.105, subds. A&amp;B.) Since the Medical Marijuana Program Act specifically permits counties to establish local guidelines for marijuana that exceed permissible state law limits (§ 11362.77, subd. (c)), the Santa Cruz County guidelines are consistent with the legislative mandate.

As respondent concedes, the trial correct was incorrect when it concluded that the "safe harbor" guidelines had no application in this case because they were enacted after the date of appellant's crimes. The new affirmative defenses created under the Medical Marijuana Program Act apply retroactively. (Frazier, supra, 128 Cal.App.4th at p. 826.)

<span class=postbold>Disposition </span>

The judgment is reversed. The matter is remanded for resentencing on count five, unless the prosecutor elects to retry counts one and two.




______________________________


ELIA, J.

WE CONCUR:



_____________________________
RUSHING, P. J.



_____________________________
PREMO, J.











Trial Court: Santa Cruz County Superior Court

Trial Judge: Hon. Samuel S. Stevens


Attorney for Appellant: Joseph M. Bochner, under appointment


by the Court of Appeal, in association with


the Sixth District Appellate Program


Attorneys for Respondent: Bill Lockyer,


Attorney General,


Robert R. Anderson,


Chief Assistant Attorney General,


Gerald A. Engler,


Senior Assistant Attorney General,


Moona Nandi,


Supervising Deputy Attorney General, and


Michele J. Swanson,


Deputy Attorney General





http://www.courtinfo.ca.gov/cgi-bin/opinio...

[palmspringsbum]

October 22, 2006


Volunteers left to clean mess of record-breaking pot busts

By Jennifer Squires
Sentinel Staff Writer
The Santa Cruz Sentinel

<table class=posttable align=right width=300><tr><td class=postcell><img class=postimg width=300 src=bin/santa-cruz_cleanup-0.jpg></td></tr></table>With paper sack lunches, hard hats and gloves, a dozen fleece- and Gortex-clad volunteers gather around their crew leaders for instructions.

Drinking Gatorade and taking breaks will be important, says Shane Krogen, director of High Sierra Volunteer Trail Crew.

The volunteers, mostly Southern California residents camping in the Santa Cruz Mountains this weekend, are spending three days cleaning up what marijuana farmers left behind in Castle Rock State Park off Highway 35: namely irrigation systems, campsites and pesticides.

This year, sheriff's deputies found a record number of marijuana plants growing on public and private lands in Santa Cruz County — more than 43,000 pot plants in 28 plantations, including eight on public land. And with that comes a large amount of environmental damage in the form of erosion, introduction of non-native species, animals poisoned by chemicals, clear-cut swaths of land and pesticides leeched into groundwater.

"The more we get out there, the more time we spend looking around, the more we find them," said sheriff's Sgt. Steve Carney, who heads the office's marijuana enforcement team.

Carney said part of the increase in marijuana garden busts is the result of improved efforts by the Sheriff's Office to find pot plantations.

The wet winter and spring increased seasonal water sources, making the Santa Cruz Mountains a lusher place to plant pot this year. Also, years with less enforcement by the Sheriff's Office — only 14,500 plants were found indoors and outdoors in 2005 and fewer than 10,000 were located in each of the two prior years — could have led growers to get more comfortable and plant more, Carney said.

"It's a growing problem and it's increased every year, the number of gardens that have been planted on public lands," said State Parks ranger supervisor Mary Hazel, who oversees Castle Rock and Portola Redwoods state parks.

This is new territory for High Sierra Volunteer Trail Crew, a group that does the majority of its work maintaining trails around Yosemite National Park. Two and a half years ago, High Sierra volunteers were asked to rehabilitate a marijuana garden site on park land near Fresno. They obliged and, including this weekend's event at Castle Rock, have tallied 19 pot plantation clean-up weekends since March 2004.

"It's pretty undramatic," said Krogen as he surveyed a terraced hillside for trash. "We're sanitary engineers."

The marijuana garden work is not the hardest work the volunteers do — 24 year-old crew member Evan Savage said cutting trees that had fallen across trails required more energy. However, the garden cleanup is a task few will perform. While numerous groups maintain hiking trails across the state, High Sierra is one of the only organizations that spends time rehabilitating the abandoned gardens.

"We wouldn't be able to do as much cleanup without them," Hazel said.

Sheriff's deputies and other law enforcement officials cut down almost all of the pot plants found in outdoor gardens this year, then buried the plants, hauled them out by hand or used a helicopter to lift marijuana bundles out. Some of the supplies — usually any weapons and as many bags of pesticides as the officers could carry — were also removed, but everything else was left in the forest and State Parks doesn't have resources to dedicate to the cleanup.

"There isn't any funding really allocated for this kind of work," said Chris Spohrer, State Parks resource ecologist for the Santa Cruz district. "We're scrambling."

That's why High Sierra volunteers trekked from Fresno to spend three days picking up trash and smoothing terraced slopes in Castle Rock last week.

The gardens the crew worked in Thursday were "medium-sized" when sheriff's deputies and State Parks rangers hiked down to them early in the summer, Carney said. One farmer, armed with a knife, ran off into the woods and was never caught, he said. About 4,000 plants — less than one-tenth of the year's haul — were eradicated in that bust, according to Sheriff's Office figures.

"It's rank, pretty rank," said Norm Allington, 62, who runs a swim gear shop and has been helping out since the High Sierra volunteers got their start a dozen years ago.

But it's funny, too. The crew collected two sets of nail clippers and a bottle of cologne, which incited jokes that the farmers were conscience of their hygiene. A conversation about the farmers' cuisine kicked up when the volunteers found Top Ramen wrappers. The cheap noodles, tortillas and canned foods are standard at most of the marijuana garden camps the crew has picked up, Loewen said.

Eleven of the outdoor marijuana gardens belonged to Mexican drug cartels, Carney said. Those farmers typically are armed; when deputies raided the gardens in Castle Rock where High Sierra volunteers worked Thursday, a man tending to the crops brandished a knife at them before escaping into the trees.

Carney said the other marijuana gardens busted by deputies this year were split among three groups:<ul class=postlist><li> People who buy 3 to 5 acres of land to grow about 300 plants to sell commercially but try to cover up their illegal activity by posing as medicinal marijuana patients.</li>

<li> Medicinal growers who clear public or private land to grow mass quantities of marijuana, some to sell.</li>

<li> Locals coming onto someone else's land to grow about 25 plants. The growers don't claim a medical necessity and are usually growing for commercial sale.</li></ul>Of the four, the Mexican cartel growers plant the largest plantations; they grow between 5,000 and 15,000 plants in multiple gardens connected by trails and irrigation lines, Carney said, and the larger gardens leave behind a bigger mess.

The six High Sierra volunteers on Krogen's crew Thursday stuffed rusted rat traps, muddy sheets of black plastic and food wrappers in white "Adopt A Highway" trash bags, then seal the bags with strips of duct tape. Lengths of irrigation tubing are bailed; blankets and tarps get rolled together and taped up.

Eventually, all of the bundles and bags are mounded in the "LZ" Krogen and marked with yellow flags. Later, the mound will be piled onto a large net and hoisted from the forest by a helicopter. It's 1,000 to 1,200 pounds of trash, enough to fill at least three nets for the helicopter, Krogen said.

"This is typical, very typical," he said.

It's a good start, but doesn't address the larger environmental problems the pot plantations cause, like pesticides leeching into groundwater. The worst damage, Spohrer said, is caused when marijuana farmers dam up and reroute seasonal creeks.

"The High Sierra group, they're taking out the trash, the pesticides left behind, the makeshift kitchens — all of that," Hazel said. "But if you think about that, trees have been cut and the land has been terraced. That's going to take years for the land to repair itself.

"That is probably one of the worst aspects of these illegal gardens because there's just so much environmental damage."

The only gardens in the county High Sierra volunteers will rehabilitate this year are in Castle Rock State Park. Other pot plantations and campsites, including some in the Soquel Demonstration Forest, will be left to the wilds.

Visit www.santacruzphotogallery.com to view photos related to this story.

<small>Contact Jennifer Squires at jsquires@santacruzsentinel.com.</small>

<hr class=postrule>
<span class=postbold>Confiscated marijuana plants</span>

<i>This year, sheriff's deputies found more marijuana growing in the Santa Cruz Mountains than any other year on record. The following counts include plants found indoors and outdoors:</i>
<blockquote>
1994: 5,785
1995: 7,754
1996: 17.746
1997: 15,816
1998: not available
1999: 9,240
2000: not available
2001: 31,437
2002: not available
2003: 8,305
2004: 2,132
2005: 14,500
2006: 45,140 (43,274 outdoor plants)
</blockquote>
<i><small>Source: Santa Cruz County Sheriff's Office</small></i>

[palmspringsbum]

February 9, 2007


State Supreme Court to clarify Proposition 215

By Shanna McCord
Sentinel staff writer
The Santa Cruz Sentinel

SANTA CRUZ — Medical marijuana advocates hope the state Supreme Court will set rules that protect and broaden the role of caregivers who grow and distribute marijuana for the sick.

This week, justices agreed to look at whether primary caregivers should be protected from criminal charges under the 10-year-old state law that allows sick people to use marijuana.

"We hope the court agrees that a person can be a caregiver and clubs can also be a caregiver," said Santa Cruz attorney Ben Rice, who's defending a Felton man whose conviction for possession and selling is headed to the high court. "The big problem is many people can't grow their own, and a caregiver is the logical way for medicine to be delivered"

The parameters of Proposition 215 are vague, often forcing marijuana advocates and law enforcement to clash over what's legal and what's not.

Law enforcement officials have said many people claim to be caregivers when really they're abusing the law for profit or personal use. The legal community is hoping that any clarifying the Supreme Court does tightens the laws and help prosecutors crack down on bogus caregivers.

"I'd like to see clarification. How do they define a caregiver? How do they define reasonable compensation?" county prosecutor Pamela Kato asked. "It's an important issue, not just in this county but all over the state"

California voters in 1996 approved Proposition 215, known as the Compassionate Use Act, legalizing marijuana for medicinal purposes and allowing designated caregivers to provide the drug.

However, Rice said, the caregiver role is narrowly defined in Proposition 215 as someone who provides housing, health, safety and medicine for a medical marijuana patient.

"Merely providing marijuana is not protected," he said.

The Supreme Court was prompted to look at the caregiver role after reviewing the case of Felton resident Roger Mentch, who was convicted in 2005 for cultivating marijuana and possession of marijuana for sale. His conviction was overturned in October by the 6th District Court of Appeal, which determined his defense that he was a caregiver should have been heard by a jury.

Mentch runs the Hemporium LLC, a caregiving service and pot collective in Felton. He was arrested in 2003 after a bank teller reported his cash deposits consistently smelled of marijuana.

Mentch, represented by Rice, said he grew marijuana for himself and five other people, all of whom were medical-marijuana patients. Rice argued Mentch's business qualified him as a caregiver, and the appeal court agreed.

The issue before the Supreme Court is whether Mentch and other caregivers can argue that a primary caregiver who supplies marijuana to medical clients should not be prosecuted on drug cultivation and possession charges.

Mike Corral, co-founder of the Wo/Men's Medical Marijuana cooperative, believes it's important for medical-marijuana patients and caregivers to have equal rights under Proposition 215.

"The vast majority of patients can't grown their own, don't know how to grow it or don't have a place to do it, or they're too sick to do it," Corral said. "It's important to reaffirm that caregivers have the right to possess and grow"

The case will be the latest ruling from the state Supreme Court clarifying a major gray area of Proposition 215.

Despite state law, federal law prohibits any use or distribution of marijuana.

Contact Shanna McCord at smccord@santacruzsentinel.com.

[palmspringsbum]

Cost of medical pot ID cards getting higher

BRIAN SEALS - SENTINEL STAFF WRITER
Santa Cruz Sentinel
Article Launched:03/12/2008 04:01:40 AM PDT

SANTA CRUZ -- The cost of a medical marijuana identification card in the county is getting higher.

Five years after the county established its own identification card program for people who use medical marijuana, local health officials want to begin issuing state cards.

"Our cards legally are only binding in Santa Cruz," said Rama Khalsa, director of the county Health Services Agency. "People do travel outside of Santa Cruz and felt it was important to have the state program."

The county's card costs $35 and more than 1,600 of them have been issued since the program was launched in August 2003. Those cards were valid for three years.

State-backed cards will cost $101 and will need to be renewed annually, though Medi-Cal patients can get $33 deducted from that. Thirty-six counties in the California participate in the state's identification card program and 18,847 of those IDs have been issued, according to the state Department of Health Services.

While the portability of the state card was lauded as giving patients legal safeguard and the comfort to possess their medicine in other parts of the state, some said the cost could be a challenge for patients.

Mike Corral of the group Wo/men's Alliance for Medical Marijuana said one of their members, for example, is disabled and after all the bills are paid has about $35 to live on for a month.

"[The cost] is going to make it problematic for some to purchase the cards," Corral said.

Advocates said they were also concerned about maintaining anonymity, but Khalsa said procedures will be in place to protect confidentiality. Information for patients will be entered into a secured database at the county level before it is sent to the state and then the paperwork will be shredded, Khalsa said.

Under Proposition 215, passed in 1996, doctors can write recommendations to patients to use marijuana. A subsequent state bill, SB 420, provided for a voluntary identification card program.

The Board of Supervisors gave preliminary approval to the change Tuesday and is scheduled to revisit the matter March 18.

The fee increase would be effective in April.

Contact Brian Seals at 706-3264 or bseals@santacruzsentinel.com.

[palmspringsbum]

Deputies bust suspected interstate pot ring based in Santa Cruz

By Jennifer Squires - Sentinel Staff Writer
Posted: 01/16/2009 01:30:31 AM PST
The Santa Cruz Sentinel


SANTA CRUZ -- A two-month probe into interstate drug sales peaked Thursday when 55 police officers raided homes across the county looking for indoor marijuana grows and cash, the Sheriff's Office reported.

One arrest already had been made and more than $22,000 confiscated, presumably profits from an operation in which pot was grown in Santa Cruz County and then shipped to a Dallas suburb, according to Sgt. Steve Carney.

The investigation began in November when authorities in Denton, Texas, notified Santa Cruz sheriff's deputies of an alleged drug trafficking connection between California and Texas, according to Carney. Apparently a Texas resident would travel to Santa Cruz on a weekly basis, obtain large amounts of marijuana, ship it back to Texas, then return home in time to receive it, Carney said.

Texas law enforcement has seized about seven pounds of pot, Carney said.

A month ago, sheriff's detectives and personnel from the county's Narcotics Enforcement Team began serving search warrants locally. In December they raided two suspected grow houses on the 10400 block of East Zayante Road in Lompico and one on the 400 block of Eighth Avenue in Live Oak. They seized more than 400 marijuana plants, according to the Sheriff's Office.

Search warrants also were served at a home on the 200 block of Columbia Street in Santa Cruz, where the cash was found, and at a home on the 800 block of Cresta Vista Way in Aptos, where Robert Daniel Scott, 38, lives. Scott was arrested Dec. 20 on suspicion of possessing marijuana for sale, cultivating marijuana and conspiracy.

This month, investigators discovered 10 more homes in the county that they suspected were being used to illegally grow and distribute some of the pot that was being shipped to Texas and other locations in the United States.

On Thursday, 55 law enforcement officers from the Sheriff's Office, DEA offices in San Francisco and San Jose, the Bureau of Narcotic Enforcement, the county Narcotics Enforcement Team and the Auto Theft Task Force, and the Santa Clara Sheriff's Office served search warrants at some of those homes.

Carney did not disclose the locations of the Thursday searches or what might have been seized, but said more arrests are anticipated in the coming days.

<small>Contact Jennifer Squires at 429-2449 or jsquires@santacruzsentinel.com.</small>

[palmspringsbum]

Ten arrests made in alleged Santa Cruz-Texas pot operation

By Jennifer Squires - Sentinel Staff Writer
Posted: 01/16/2009 07:51:16 PM PST
The Santa Cruz Sentinel


SANTA CRUZ - Sheriff's deputies investigating an interstate drug ring arrested 10 people during raids at 11 homes in Santa Cruz, Aptos, Freedom, Ben Lomond and Felton on Thursday.

All are suspected of growing or selling marijuana re-sold at exorbitant prices in Texas, according to Sgt. Steve Carney of the Sheriff's Office drug unit.

The large drug operation was apparently funneled through Robert David Scott, 39, of Aptos, who once a week sold 5 pounds of pot at $4,000 a pound to a Texas man.

Carney said the unidentified Texan flew to Santa Cruz weekly to pick up his marijuana order, then shipped it through a private service to Denton, Texas. The Texan has been arrested.

Before his arrest, Texas law enforcement contacted California authorities, including the Drug Enforcement Administration and the county's Narcotics Enforcement Team.

A Sheriff's Office detective has been investigating the pot growing suspects since early December. Four homes were raided in mid-December and more than $22,000 in cash was seized, but the bulk of the bust occurred Thursday when 55 officers from six local, state and federal agencies served 11 search warrants.

During the raids, deputies confiscated more than $14,000 cash, 9 pounds of pot packaged to sell, nearly 1,300 marijuana plants and indoor marijuana growing equipment worth tens of thousands of dollars.

Apparently, the interstate operation began at least a year ago when Scott arranged people to provide bulk marijuana for the Texan, Carney said. Not all of the growers knew they were cultivating for buyers in Texas, nor were they all acquaintances.

"We think that just part of their operations probably got them pulled into this," Carney said of the alleged growers. "There was evidence that they were selling to other people than just this Texas group."

Nearly everyone arrested Thursday claimed to be medicinal marijuana users and had medical recommendations. Carney said although some were within the medical guidelines for the size of their indoor gardens, selling the pot to the Texan via Scott violated the medicinal exception.

"What they were aware of - at least that we could see - is they were growing and processing marijuana at a bulk level," Carney said.

<ul class=postlist>The Sheriff's Office raided the following homes:

<li>222 Columbia St., Santa Cruz: Niels Alexander Hansen, 22, of Santa Cruz was arrested on suspicion of possessing marijuana for sale, marijuana sales and conspiracy.</li>
<li>807 Cresta Vista Way, Aptos: Robert Daniel Scott was arrested on suspicion of possessing marijuana for sale and conspiracy. Katie Lynn Huber, 27, of Aptos was arrested on suspicion of possessing marijuana for sale, marijuana sales and conspiracy. Cash and other evidence was seized.</li>
<li>A home on the 50 block of Bowker Road, Freedom: Grow equipment and 140 indoor pot plants were taken.</li>
<li>461 Eighth Ave., Santa Cruz and a second house on the same street: Melanie Myers and Jacob Anderson, both 29 and from Santa Cruz, were arrested on suspicion of possessing marijuana for sale and cultivating marijuana. Cash and cultivation equipment were taken.</li>
<li>A home on the 9000 block of Zayante Road, Felton: 239 indoor pot plants, grow equipment and packaging material were found.</li>
<li>461 Gold Ave., Felton: Chris Huber, 40, of Felton was arrested on suspicion of possessing marijuana for sale and cultivating marijuana. Deputies found 106 marijuana plants and grow equipment.</li>
<li>A second home on the 400 block of Gold Avenue: 2 pounds of processed marijuana, cash and other alleged evidence of drug sales were taken.</li>
<li>740 Tie Gulch Road, Santa Cruz: Anthony Orlando, 27, and Melissa Wieselman, 30, both of Santa Cruz were arrested on suspicion of possessing marijuana for sale and cultivating marijuana. About 180 pot plants and cash were taken.</li>
<li>843 Brookside, Felton: Patrick Higbee, 29, and Jaxon Roberts, 24, both of Santa Cruz, were arrested on suspicion of possessing marijuana for sale, cultivating marijuana and conspiracy. Deputies found 226 pot plants, cash and 3 pounds bulk marijuana.</li>
<li>A home on the 800 block of Noteware Drive, Ben Lomond: 4 pounds of marijuana, 218 pot plants, packaging materiel, pay-owe ledgers and cash were found.</li></ul>
Carney said at least two other arrests are anticipated. Deputies are still searching for other assets from the drug sales, although he speculated much of the money may have been spent. One alleged grower used it to pay for graduate school, he said.

The Sheriff's Office reported seeing an increase in interstate pot sales in the past couple of years.

"The interesting thing is it seems like in the past year we're dealing with agencies calling us from Texas and all over the U.S. telling us people are shipping marijuana from California," Carney said.

Sheriff's Office drug detectives have found more indoor grow houses recently, many of which are operated to augment someone's income.

"Honestly there are probably so many grow houses in the community," Carney said. "I looked at our stats from this year and last year, our indoor grow stats have just gone kind of crazy."

Everyone arrested during Thursday's raids was booked into County Jail. Most made bail Friday and will be arraigned in court later this month.

<small>Contact Jennifer Squires at 429-2449 or jsquires@santacruzsentinel.com.</small>

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Court ruling will limit solo pot providers

Bob Egelko, Chronicle Staff Writer
The San Fransico Chronicle
Tuesday, November 25, 2008

(11-24) 14:41 PST SAN FRANCISCO -- Someone who supplies marijuana to a patient who has a doctor's approval for it can be prosecuted for dealing drugs, the state Supreme Court ruled Monday in a narrow interpretation of California's medical marijuana law.

Advocates on both sides of the case agreed that the unanimous ruling will encourage Californians to obtain medical marijuana from patient cooperatives, which are authorized by a 2003 state law, rather than from an individual supplier.

"Ideally, it (the ruling) won't have a tremendous effect," said Joseph Elford, a lawyer for Americans for Safe Access, a pro-medical marijuana group. "Patients will now increasingly get their medication through collectives and cooperatives."

The 2003 law "provides an alternative outlet for patients," agreed Deputy Attorney General Michele Swanson, the state's lawyer. She said Monday's ruling applies only to a category of suppliers - those who are not the patient's caretaker or fellow cooperative member - whom the voters never intended to protect when they passed Proposition 215 in 1996.

But Lawrence Gibbs, attorney for the Santa Cruz County man who appealed his marijuana-dealing convictions, said the court "made it much, much more difficult for qualified patients to get their medical marijuana."

Although patients can turn to cooperatives or clubs, Gibbs said, the resulting centralization of cultivation and supply will make raids and prosecutions much easier for federal authorities, who are not bound by Prop. 215. President-elect Barack Obama said during the campaign that he supports a state's right to legalize the medical use of marijuana, but believes it should be subject to regulation by the U.S. Food and Drug Administration.

The ruling is the second time this year the state Supreme Court has limited the scope of Prop. 215, which allowed patients to grow and use marijuana with a doctor's recommendation.

In January, the court ruled that employers could fire medical marijuana patients who tested positive for the drug after using it away from the workplace. A bill to overturn that decision was approved by the state Legislature, but Gov. Arnold Schwarzenegger vetoed it.

Gibbs' client, Roger Mentch, was arrested in 2003 after a bank teller reported that the cash he had deposited over several months smelled strongly of marijuana.

Sheriff's deputies found nearly 200 marijuana plans growing in his home. He told authorities that he had a doctor's recommendation to take the drug, and gave or sold the rest to five other patients.

Charged with cultivation and possession for sale, Mentch argued that he should be immune from prosecution because he was the patients' "primary caregiver."

Besides being their source of medical marijuana, Mentch said, he advised them about growing and using the drug and occasionally took some of them to doctor's appointments. He also said he did not make a profit.

The judge in Mentch's trial refused to let the jury consider whether he was a caregiver. Mentch was convicted of cultivation and possession for sale and given a suspended sentence and three years of probation.

An appeals court in San Jose overturned his convictions and said jurors should have been allowed to decide whether Mentch was the patients' caregiver. But the state's high court disagreed.

Marijuana suppliers can qualify as primary caregivers only if they were already taking care of a patient - providing medical aid or housing - when they began furnishing the drug, Justice Kathryn Mickle Werdegar said in Monday's ruling.

That might apply to a nurse or a relative tending to a seriously ill patient whose needs included marijuana, Werdegar said, but not to someone like Mentch, who she said tried to "establish an after-the-fact caregiving relationship" to protect himself from prosecution.

The court returned the case to the San Jose appellate panel, where Gibbs said he would try to show that Mentch was part of a patient cooperative authorized by the 2003 law.

The case is People vs. Mentch, S148204.


Read the ruling
The state Supreme Court's ruling on medical marijuana supplies may be read at: links.sfgate.com/ZFLP.
<small>
E-mail Bob Egelko at begelko@sfchronicle.com.
</small>
This article appeared on page B - 1 of the San Francisco Chronicle

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Changes to Federal Marijuana Policy May Play Out Soon in Calif. Cases

Evan Hill - 03-27-2009
The Recorder


If the federal government's evolving medical marijuana policy takes more concrete shape in the coming weeks, the first signs may come in two pending California cases.

In Los Angeles on Monday, a judge postponed the sentencing of a former dispensary owner and ordered the Department of Justice to put its new position in writing by the end of April, though he said he didn't think it will affect the defendant's conviction.

But new DOJ rules will likely play a more decisive role in a case in San Jose, where the city and county of Santa Cruz teamed up with a local dispensary to sue the U.S. attorney general and other federal officials for allegedly interfering with California's medical marijuana laws.

At a court appearance on Monday, the two sides agreed to pause the case until early May. And according to plaintiffs attorney M. Allen Hopper, Assistant U.S. Attorney Mark Quinlivan said at the time that "there may well be" a written change of policy handed down by then.

"This would be a sea change," said Hopper, litigation director for the ACLU's Drug Law Reform Project. "I don't think that that's too strong of a characterization. If what the press is reporting that Attorney General [Eric] Holder said is accurate and does become the Department of Justice policy, it would be a significant change." In recent comments to reporters, Holder has signaled a break from the Bush administration and a shift toward a less aggressive marijuana enforcement strategy.

Northern District of California Judge Jeremy Fogel, who is presiding over County of Santa Cruz v. Holder, 03-01802, set a settlement conference for May 7 and told Quinlivan that the plaintiffs need to see "something in writing that gives them some degree of certainty about what the new policy is," according to Hopper.

Quinlivan, reached on Wednesday, declined to talk publicly and referred questions to Justice Department headquarters in Washington, D.C. Laura Sweeney, a spokeswoman there, said that federal resources won't be used against individual patients or licensed caregivers who comply with state law. She said she was familiar with the Los Angeles case but would not comment on whether a formal, written DOJ policy on medical marijuana is forthcoming.

With two federal judges now "breathing down their backs," DOJ officials will likely produce something that stakes out their position, said Daniel Abrahamson, a Berkeley, Calif.-based attorney who directs legal affairs for the national Drug Policy Alliance and also represents the plaintiffs in the Santa Cruz case.

"We hope that the government will come back with a very clear statement that medical marijuana dispensaries that [comply with state law] ... will not be targets of federal investigation, federal prosecution or federal interference generally," he said.

If Quinlivan delivers that missive in the Santa Cruz case, Abrahamson said, he presumes it will apply nationwide.

Thirteen states have enacted laws that legalized medical marijuana, according to the Washington, D.C.-based Marijuana Policy Project. California, which passed the Compassionate Use Act in 1996, was the first.

In February, Holder hinted at a press conference that the DOJ would rein in its use of federal drug statutes to go after medical marijuana providers and users. Then, on March 18, he told a gathering of reporters that the department will focus only on "people, organizations, that are growing, cultivating substantial amounts of marijuana and doing so in a way that's inconsistent with federal law and state law."

At court in San Jose on Monday, Hopper said the judge and lawyers all referenced Holder's recent statements, with Fogel saying that they appear to indicate a new policy that could provide "motivation and framework for settling the case."

In the Santa Cruz case, a team of agents from the Drug Enforcement Administration raided the Wo/Men's Alliance for Medical Marijuana, based in the city of Santa Cruz, in the early morning hours of Sept. 5, 2002, according to the plaintiffs. The agents held the owners at gunpoint, seized marijuana and cut down 167 plants, but no criminal drug charges against WAMM or its patients ever materialized.

The co-op, joined by some of its patients and the city and county of Santa Cruz, sued the government in April 2003. In mid-2008, Fogel denied the government's attempt to dismiss the plaintiff's claim that federal enforcement efforts in California violate the state's rights under the 10th Amendment.

Northern District U.S. Attorney Joseph Russoniello told The Recorder last year that small, nonprofit "caregivers" are a low priority for his office, and Northern District prosecutors appear to be limiting their targets to large-scale, commercial growers and to property owners like the recently sentenced Josh Hedlund, who owned land in Humboldt County, Calif., and a warehouse in Berkeley. On Wednesday, spokesman Jack Gillund referred questions on any changes in policy to Washington.

Aside from the WAMM raid and others in the San Francisco Bay Area, much of the federal marijuana enforcement in California has taken place in the state's southern counties, particularly Los Angeles. Thomas O'Brien, U.S. Attorney for the Central District, has pursued four cases in recent years that involve medical marijuana dispensaries, said Thom Mrozek, a spokesman for the office.

Mrozek said the defendants in those cases all broke California law and thus fall within the guidelines sketched by Holder. But the attorney representing Morro Bay, Calif., dispensary owner Charles Lynch, whose sentencing was postponed on Monday, said he disagrees. Reuven Cohen, of the local federal public defender's office, said Lynch secured a business permit, paid taxes and won approval for his dispensary from the town's mayor.

"Today, Charlie Lynch would not be prosecuted," he said. "They would tell you otherwise, but it's pretty clear Charlie is the end of the line. The only question is whether he gets crucified."

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New Boulder Creek pot shop tests community will, county law

By Kurtis Alexander | The Santa Cruz Sentinel
Posted: 01/16/2010 01:30:00 AM PST


BOULDER CREEK -- Last month, Marc Whitehill opened a small shop just off the main drag of this quiet Santa Cruz Mountains town to sell medicinal marijuana.

The budding entrepreneur, who offers a selection of marijuana topical creams, pot cookies and green, leafy plants, envisions a thriving collaborative where local growers can make a living serving the medical needs of the community.

"I'm a small-town person," Whitehill said. "I'm trying to do something good here."

But Whitehill's venture, a spinoff from his 20-year career as a registered nurse, is running up against a community split over whether the town needs a pot shop and county regulations, which don't permit marijuana distributors.

Complicating his problems is the fact that his Boulder Creek Collective sits across the street from a popular playground and recreation center.

"I know that people need medical pot, but I just don't think it's a good spot," said Christina Horvat, manager of the Boulder Creek Recreation and Park District, which manages the nearby park. "It's too close to the kids."

Several moms have come to the district since the shop opened to express concerns about their children's safety in an area where drugs are being sold, Horvat says.

Medical marijuana is legal under California law. The voter-approved Compassionate Use Act authorized it in 1996, but the details of how and where it can be exchanged haven't been settled. A patchwork of regulations

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now govern its distribution, and Santa Cruz County officials say local law hasn't been changed to accommodate marijuana shops.
"They're not allowed," said county Planning Director Tom Burns. "We're not saying you can't do it. We're saying current zoning ordinance doesn't allow for it."

Despite the law, a handful of retailers operate in the Santa Cruz Mountains. Another marijuana collaborative has a storefront in Felton, and a few businesses warehouse the plant and make home deliveries, all of which are prohibited in the unincorporated county, planning officials say.

In the city of Santa Cruz, however, two medical marijuana dispensaries are permitted. City officials, have enacted a temporary moratorium, though, to prevent any additional shops from opening.

Burns says the county, which typically enforces zoning rules only when complaints come in, would not seek to shut down any of the marijuana distributors "unless there's a health or safety issue."

"We don't go out looking for these things," he said.

The county's prohibition on storefront shops may be permissible, legal experts say, though some call it unfortunate.

"They can do that, but I think it's a mistake," said Ben Rice, a Santa Cruz attorney who specializes in medical marijuana law.

Regulations to allow the shops, Rice says, would ensure safe and effective distribution.

County Supervisor Neal Coonerty, whose board has the authority to change local zoning, said the county would have much to consider before making any changes to accommodate marijuana shops.

"First, we have the basic question of do we want to have them at all. Then there's how do we regulate them," he said.

Boulder Creek's Whitehill says state law is in his favor. He insists he operates under the guidelines that came with the Compassionate Use Act, and says he's taken every precaution to make sure his shop is safe and above board.

The shop is open only to people certified by a doctor as having a medical need, Whitehill says, and no marijuana is ingested on the premises. The marijuana, he says, is removed from the property after business hours.

"I'm carrying a torch," he said. "We have the chance to show that this is real medicine."

Whitehill spoke to the Sentinel on the condition that his shop's address not be printed for security reasons.

Boulder Creek resident Leanne Still, who was walking by the collective with one of her two young daughters Friday, said she has no problems with the new business.

"I was wondering when they were going to open one up here," she said.

[palmspringsbum]

[quote="Topix"]

Marc Whitehall's Response to Santa Cruz Sentinel Article
"New Boulder Creek pot shop tests community will, county law"

Topix.com, 16 Jan 2010

I was very surprised to find a reporter from The Santa Cruz Sentinel waiting in the parking lot for me when I came to open the shop on Friday. In fact, I had to take several minutes to compose myself and decide if I wanted to speak with Kurtis at all.

In the end, I decided that an article would most likely be published with or without my input and that it would be best to try to have the voice of our Collective heard. Kurtis and I spoke for an hour or more (Kurtis, please correct me if I am wrong) and only a small
portion of our conversation was published. Unfortunately, I feel that the article is unnecessarily inflammatory and misses some of the most important parts of this debate as they apply to the community and the state. I would appreciate an opportunity to
add a few items:

a) The article title, "New Boulder Creek pot shop tests community will, county law" is unnecessarily inflammatory. It is not our intent to test anybody and we are not a "pot shop".