1       2d 216, 222 [153 P.2d 344].)  Of course, in the absence
        of reasonable or probable cause to believe that a de-
3       fendant is guilty of possession or cultivation of mari-
        juana, in view of his or her status as a qualified pa-
3       tient or primary caregiver, the grand jury or the mag-
        istrate should not indict or commit the defendant in
4       the first place, but instead should bring the prosecu-
        tion to an end at that point.
5
        And in People v. Tilehkooh (2004) 113 Cal.App.4th 1433,
6
   1443:
7
             We are directed to give sense to all of the terms
8       of an enactment.  To do so requires that we give effect
        to the purposes of section 11362.5 to ensure the right
9       to obtain and use marijuana.  In particular, we must
        give effect to subdivision (b)(1)(A), which estab-
10      lishes a "right to obtain and use marijuana for medi-
        cal purposes" and which links the right to use mari-
11      juana with the prohibition on the imposition of a
        "criminal prosecution or sanction."  It is readily ap-
12      parent that the right to obtain or use marijuana is
        not "ensure[d]" if its use is not given protection
13      from the adverse consequences of probation.  Since the
        use of marijuana is not a crime, the term "prosecution
14      or criminal sanction" must be read to apply to any
        criminal sanction for the use of marijuana [including
15      probation].

16                                 III.

17                             Conclusion

18      For the foregoing reasons the defendant requests this court

19 grant the motion and order the return of defendant's property to

20 defendant.

21

22      Dated:  May 7, 2004

23                            Respectfully submitted,
                              JOHN E. ROTH
24                            Law Offices of the Public Defender

25

26

27                            William B. Sasnett, Jr.
                              Deputy Public Defender
28                            Attorney for defendant
                              Jeffrey Craig Canada

Page 6 of 7
Defendant's Motion for Return of Property

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