On August 22, 2014, the Court of Appeal, Fourth District, Division Three, rendered a landmark opinion in support of the rights of qualified patients and collectives in having an affirmative defense under California’s Medical Marijuana Program Act (MMPA).
Attorney Scott C. Thomas, of the Law Office of Scott C. Thomas, and Attorney Christopher Glew, of the Law Offices of Glew & Kim, were appellate counsel on the matter.
According to Mr. Thomas, “This is a landmark ruling which affirms the rights of qualified patients, who are members of a collective, to have a defense under the MMPA. No longer can prosecutors make the argument that anytime money is exchanged for marijuana, between members of a collective, the defenses afforded under the MMPA are voided because any monetary transactions are per se unlawful, or that these transactions constitute a ‘profit,’ in violation of the law. The case clearly spells out that anytime a criminal defendant raises a reasonable doubt as to his or her qualified patient status, they are afforded a defense under the MMPA, and the question of whether or not the collective made a profit is a question for the jury, not the trial judge, to decide.”
“This decision is another giant step toward legitimacy for medical marijuana patients,” said Mr. Glew. “It has the potential to end the prosecution of collectives that are attempting to follow the ambiguous laws.”
Baniani, the founder of Herbal Run, a medical marijuana collective in Newport Beach, CA, was represented by Mr. Glew during his first trial, and was afforded a defense under the MMPA. Accordingly,the jury on his first trial hung on both the sale of marijuana, and possession of marijuana for sale, charges. At Mr. Banianai’s second trial, the trial court denied Mr. Baniani a defense under the MMPA, because the court found that there was evidence Mr. Baniani charged for marijuana. Mr. Baniani was subsequently convicted of possession of marijuana for sale.
The Court of Appeal reversed the trial court’s ruling, with regard to the denial of a defense under the MMPA, and remanded it for a new trial, agreeing with appellate counsel’s assertion that the denial of a defense under the MMPA was erroneous and prejudicial to Mr. Baniani, especially in light of the fact that at Mr. Baniani’s first trial, when he was afforded a defense under the MMPA, the jury hung on both counts.
“This victory follows in the steps of the Colvin and Jackson decisions, and will put an end to prosecutors arguing that qualified patients, who collectively associate to cultivate marijuana, are not afforded a defense under the MMPA. Now prosecutors will have to put the issue before a jury, who will receive an MMPA affirmative defense jury instruction, and prove their case beyond a reasonable doubt. It’s a big win for the medical marijuana community,” said Mr. Thomas.
Case reference number G048535 (Super. Ct. No. 10HF1852)
The opinion, which has been certified for publication, can be found here: http://www.courts.ca.gov/opinions/documents/G048535.PDF