People v. Baniani: A Huge Win for California’s Medical Marijuana Patients and Collectives- Law Office of Scott C. Thomas Press Release

Santa-Ana-Court-of-AppealsOn 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:

Know Your Rights


If you’ve ever watched “Cops,” you’ve heard the phrase, “Anything you say can, and will, be used against you, in a court of law.”  With Weekend 1 of Coachella right around the corner, I thought it might be helpful to give you all a quick rundown of what your rights are, and how to invoke them, should you find yourself being questioned by the police. 

First off, do not initiate contact with the police.  Why?  Well, once you initiate contact with law enforcement, it is deemed a consensual encounter, and should the officer notice that, say, you have dilated pupils, you have effectively opened the door for the officer to investigate you based on any observations made during the conversation.  Put simply, if you walk up to the horse-mounted police officers to pet the horse, you’re gonna have a bad time!

Next, if an officer approaches you, do not answer any questions; politely state that you will not answer any questions and ask the officer if you are free to leave or if you are being detained.  If the officer tells you you’re free to go, get out of there; if the officer tells you that you are being detained, politely state that you’re invoking your right to remain silent and will not answer any questions without your attorney present. 

More often than not, people think they will curry favor with law enforcement officers by answering questions or making admissions.  However, this is NEVER the case.  While it is essential to treat the officers with respect and to be polite, you will not do yourself any favors by answering questions posed by law enforcement officers.  Nothing good, in my experience, has ever come from speaking to the police who are investigating you. 

I am often asked how one should go about invoking their rights, in a polite way; the linked youtube video provides an excellent example of how to politely assert your rights to a law enforcement officer.  The video can be found at the following address: (skip to the 1:00 mark for the good stuff).

Also, if you feel you might have trouble asserting your rights or articulating your thoughts, print out a Miranda response card, which can be handed to an officer instead of orally invoking your rights, and can be found on my Law Office’s Facebook page at the following address:

Lastly, and most importantly, my advice is to not break the law.  Period.  That being said, be safe out there, stay hydrated, and have (legal) fun!


Vehicle Searches

policenightsearchI know I have touched on this issue before in previous blog posts, but the one questions clients and friends always ask me is “Do I have to let the police search my car when they ask?”  The simple answer is a resounding NO!

Even during vehicle stops for minor traffic violations, it is not uncommon for officers to ask the stopped motorist for permission to search their car.  Why do they do this?  Well, it really comes down to the shift from American Law Enforcement being “peace officers,” and transitioning into “police officers.”  The change may seem to be nothing more than semantics, but in practce, the consequences are far reaching.  Instead of being tasked with maintianing public order (i.e. peace officer), police now actively seek out crimes for the sake of seeking out crimes.  That is to say, any opportunity a police officer has to look for criminal conduct, they will seize upon it. 

Going back to the vehicle stop for a traffic violation, this trend is put into sharp focus.  Instead of merely citing the offender and letting him or her go on their way, police officers use the traffic violation as a means of “getting their foot in the front door” for further investigation of any unrelated criminal conduct. 

Most people, when confronted by a police officer who wishes to search their car, bow to the power of the badge and aquiece for a multitude of reasons; maybe they have nothing to hide but are intimidated by the badge, or maybe they have something to hide and think cooperation will be their ticket to freedom, or maybe they just don’t know their rights.  In any case, there is no reason to ever say yes to a police officer who wishes to search your car.

I say this because, regardless of your answer, if the police have probable cause to search your vehicle, they are going to search your vehicle.  End of story.  This is why it is smart to refuse consent to search; if the cops are asking for your consent, they probably do not have probable cause to search your car, and are using intimidation or coercion to gain consent.  Remember, it is perfectly legal to refuse an officer’s request to search your car.

I hope this helps to flesh out this issue, and remember, the best answer, when a cop asks to search you or your vehicle, is NO!

SB 794 And Its Impact On A Criminal Defendant’s Right To A Fair Trial

LegislativeSolution_JurySB 794 is a bill that seeks to reduce the number of peremptory challenges afforded to a criminal defendant in a misdemeanor trial from ten to five, in the name of judicial economy (i.e. saving money).  Before I go any further, I must explain the purpose and history of peremptory challenges to provide the proper context. 

Firstly, peremptory challenges are used during voir dire (jury selection) to dismiss potential jurors without cause.  This means, as long as the motivation is not rooted in race or gender, a juror can be excused, using a peremptory challenge, without showing that he or she cannot be fair and impartial, is incapacitated, is incompetent, is related to any party or witness, is a participant in previous litigation on the same matter, all of which are what constitutes cause.  Given that courts, especially with regard to misdemeanor cases, limit voir dire to as little as ten minutes for each side, peremptory challenges serve as the last line of defense for attorneys to dismiss jurors who may be overly partial to the opposing side.  Remember, voir dire occurs in open court, so jurors’ answers to questions posed by attorneys are not always honest, given the nature of the process.  Peremptory challenges allow attorneys to excuse jurors who they feel may be “hiding the ball,” absent a showing of cause. 

Now for a little history; peremptory challenges are rooted in Roman law, where both sides were allowed to select 100 potential jurors, and both sides were afforded 50 peremptory challenges to dismiss jurors, thereby leaving 100 of the initial 200 jurors, to decide the case. 

In California, the right to peremptory challenges is almost as old as the state; California Code of Civil Procedure Section 231 was enacted in 1851, and later codified in 1872.  Under CCCP Section 231, a person alleged to have committed a crime in a criminal case, where the punishment may exceed 90 days, is afforded 10 peremptory challenges, and six peremptory challenges are allowed for those facing misdemeanors with a sentence of 90 days or less.

SB 794 aims change over 160 years of California law, by reducing the number of peremptory challenges, in misdemeanor cases, to five, regardless of the amount of potential custody time.  This will affect the People’s ability to have a fair trial, and more worrisome, it will make it harder for criminal defendants to receive a fair trial, especially in conservative counties like Orange County.  

This bill is opposed by both the California District Attorneys Association and the California Public Defender’s Association, two groups which rarely agree on anything.  It is safe to say that any gains in judicial economy will be offset by juries that are less diverse, less informed, and more prejudiced towards one side or the other. 

The right to a fair trial is the cornerstone of a free and open democracy; SB 794 will have the effect of eroding that right and creating adverse consequences for our democratic society.   


What Is An “Expungement” And What Does It Do?

ExpungementGiven the economy and today’s job market, more and more people are trying to clean up their criminal records so they can remain competitive, or at the very least, have a shot at landing a job.  Heck, even landlords are utilizing background checks to select tenants in today’s crazy rental market.

I am often asked if there is any way to “seal” a California conviction and, unfortunately, the short answer is no.  However, do not despair as a dismissal under Penal Code §1203.4, often erroneously referred to as an “expungement,” is the next best thing, and, under California law, is the most effective vehicle for “cleaning up” one’s record. 

How does a Penal Code §1203.4 dismissal work?  Upon receipt of the appropriate paperwork, the court will make a determination if said petition should be granted.  If the Penal Code §1203.4 dismissal is granted, the court will vacate the conviction.

What does this mean for the petitioner?  Well, for starters, it means that, subject to certain caveats, the petitioner does not have to disclose the prior conviction to any prospective employer, landlord, etc.  Given that prospective employers conducting a background check will be able to see that there was, at one time, a conviction that was subsequently dismissed, they are barred from asking about it pursuant to California Labor Code §432.7(a).

As I mentioned earlier, there are some exceptions to a petitioner’s right to non-disclosure of a prior conviction that is dismissed, pursuant to Penal Code §1203.4.  What are these exceptions?  As Penal Code §1203.4 states, once a dismissal is granted, “the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.”  Thus, unless the petitioner falls into one of the specifically itemized categories listed above, he or she need not disclose a dismissed conviction, and prospective employers are statutorily barred from inquiring about it. 

Who is eligible for a Penal Code §1203.4 dismissal? 

-Anyone convicted of a misdemeanor or felony who has completed the proscribed period of probation. 

-Anyone convicted of a misdemeanor or felony who is currently on probation.  In order to be eligible for the Penal Code §1203.4 dismissal, the petitioner must first motion for the court to terminate probation early.  As a rule of thumb, courts are reluctant to grant motions for early termination of probation unless the majority of the probationary period has expired.  For example, if the petitioner is placed on three years probation, courts like to see that at least two years of the probationary period have been served.

-Anyone who is convicted of a misdemeanor or felony who is not placed on probation can petition the court for a Penal Code §1203.4 dismissal one year from the date of conviction.

Who is not eligible for a Penal Code §1203.4 dismissal? 

-If you currently have criminal charges pending against you or are on a grant of probation related to a different case.

-Anyone convicted of a misdemeanor or felony who has not paid off the fines and/or restitution ordered by the court.

-If you were convicted of a felony and sentenced to state prison.

-Anyone convicted of violating Vehicle Code sections 2800, 2801, 2803, or 42001(b), or Penal Code sections 261.5(d), 286(c), 288, 288a(c), 288.5, or 289(j), as these violations are non-dismissible.

*It should also be noted that anyone seeking a dismissal, on a case where they violated their grant of probation, will be at the mercy of the court’s discretion.

A couple of quick closing thoughts: anyone whose conviction requires them to register as a sex offender, or which prohibits them from owning a firearm, or from driving, will still be subject to those requirements/prohibitions.  Further, despite a dismissal, if the petitioner picks up a new case, the old case, which was dismissed, can still be used to increase punishment on the new case, or can be used as a priorable offense.

I hope that this post is helpful to you all, and if you have any questions, comments, or concerns, please feel free to call me at (949)945-2085, or email me at

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