KELLY CASE IS BRIEFED IN CAL SUPREME COURT
Posted December 3, 2008
On December 3, Gerome Uelman a law professor
at UC Santa Clara filed his opposition brief on behalf of Patrick Kelly in
the medical marijuana case People v. Kelly. His job is to defend the Second
District Appeals Court unanimous decision of May 22 that held that
the section of the California medical marijuana program passed by the legislature
as SB 420 in 2003 setting limits on per patient plant possession and maintenance
was unconstitutional.
The holding was that the Compassionate Use Act passed
as Proposition 215 in 1996 and enrolled as section 11362.5 of the Health
and Safety code did not set quantitative limits of any kind. A statute put
in place by voters cannot be modified by a law passed by the legislature,
according to the court.
Courts have held that the CUA does not confer
immunity from arrest, but may be employed as an affirmative defense in limiting
the charges tried in court and instructing juries. In such cases, the totality
of circumstances and not simple plant count determine whether the amount
of marijuana involved is "reasonably necessary" for a person to possess for
personal medical versus commercial purposes.
SB 420 attempted to circumscribe the CUA by establishing
a voluntary ID card program in which medical marijuana patients could enroll
and which granted them a degree of safety from arrest and prosecution. The
cards could then be used to authorize "caregivers," in reality contract
growers, to provide them with their "medicine."
Section 11362.77 set minimum maximum limits of 6 mature
plants, 12 immature, and 8 ounces of marijuana for medical use. This threshold
limit could be exceeded by cities and counties setting higher limits for
their jurisdictions, or doctors recommending more marijuana in specific cases.
In Kelly's trial for possession for sale, prosecutors
repeatedly pointed out that the defendant had no doctor's recommendation
for the 12 mature plants he was growing for his own use.
His defense attorney in the appeal alerted the high
court of the unconstitutionality of section 11362.77 and the judges concurred.
They granted him a new trial, but did not overturn his verdict for unrelated
technical reasons.
On July 1, the attorney general's
office filed petitions for review and depublication of the Kelly decision
in the California Supreme Court. The supreme court case number is S164830.
Richard Johnson as well as Kelly through his attorney filed letters opposing
depublication, while the ACLU and Amerians for Safe Access supported it.
Measure B in Mendocino County in its Ninth Paragraph
reduced the local limits of 25 plants per patient and 2 pounds of dried product
to the state default minimum maximums in section 11362.77.
But as there is no provision in the CUA for counties
to set such limits, that paragraph of Measure B is also unconstitutional.
This is what Richard Johnson argued in his own petition
to the Supreme Court filed on June 16 in Case #S164429. That was rejected
the same day as being 12 days late. Johnson was appealing from an appeals
court denial of his request for an injunction against Measure B which in
turn was from a refusal by the superior court on April 27.
The state Supreme Court accepted Kelly for review in
August and a similar case called People v.Phomphakdy in October.