[ASA Field]

June ASA Legal Tip
People v. Kelly: What Does it Mean to Me?

By Noah Mamber, ASA Legal Services Coordinator

On May 22, in People v. Kelly, the CA Court of Appeal for the 2nd Appellate District overturned defendant's conviction for possessing 12 oz. of marijuana. At trial, the prosecutor had successfully argued to the jury that Kelly’s possession of the marijuana was illegal because he had exceeded the “caps established by Health & Safety Code § 11362.77 of S.B. 420” without a relevant doctor’s exemption. The appellate court reversed the conviction because it found that the S.B. 420 guidelines were “caps” on the amount of marijuana a patient may possess and such “caps” were an unconstitutional amendment of Proposition 215.

This is a published decision, but it is likely that the CA Attorney General will file a request for review by the CA Supreme Court. It is ASA’s position that the court achieved the right result (overturning the conviction), but used the wrong reasoning. While the S.B. 420 quantities would constitute an unconstitutional amendment of Proposition 215 if they limited the amount of marijuana a patient could possess, the California Supreme Court found, in People v. Wright, that the quantities are not "caps," but rather thresholds, and therefore not an unconstitutional amendment of a voter-approved initiative.

While this is a positive ruling for patients, and it demonstrates that another appellate court is willing to stand up for us, patients should not rely on this decision and everyone should continue to obey their county’s guidelines, and obtain any appropriate exemptions.

[squatter420]

I know that ASA is trying to keep patients out of jail and out of trouble, but why not openly embrace this ruling? We don't want the legislature to ever limit the vote of the electorate, and this was just such a case. The legislature should only be doing things that further the original intent of prop 215. The obvious goals of the authors of 215 and thus the voters was to make MMJ available without government interference to those that may need it. It makes no mention of written dr.s letters, but ANY health care professional that recommends it orally or written. Reopen 215 to it's full potential please. Not this truncated form.

[ASA Field]

Originally Posted by squatter420

I know that ASA is trying to keep patients out of jail and out of trouble, but why not openly embrace this ruling? We don't want the legislature to ever limit the vote of the electorate, and this was just such a case. The legislature should only be doing things that further the original intent of prop 215. The obvious goals of the authors of 215 and thus the voters was to make MMJ available without government interference to those that may need it. It makes no mention of written dr.s letters, but ANY health care professional that recommends it orally or written. Reopen 215 to it's full potential please. Not this truncated form.

It's a difficult issue and we understand why not everyone agrees with our assessment of the case. However, we felt the need to put this out because people were calling us (and posting here), sounding like they thought this ruling meant they could now grow hundreds of plants if they wanted and the cops couldn't harass them. That's unfortunately not the reality and we don't want anyone endangering themselves because of a misunderstanding of the meaning of this ruling.

[Sgt Greenbud]

I believe there is also the consideration that when the Attorney General appeals it, it will be depublished. During that period you may not be able to use it as a defense if you are being prosecuted.

I agree however that it is an unconstitutional ammendment to the CUA and SB 420, and that the intent is for patients to have access to as much medicine as is medically required without intereference or harrassment from the gov't.

There can be a huge chasm between how a law is written and how it is intended to be enforced and how it actually is. It will take years for the MMJ laws to finally fit into their intended place in the lives of California patients.
Until then, we just have to stand united and fight.

[RudeDogg]

It's A Waste Of Everyones Time When Legitimate Patients Are Dragged Through The Court System.

[boutweed]

Can we agree that the wide open, wild west thing has caused some backlash (repeal of measure G in Mendo) We would do well to police ourselves and try to work with our local authorities?

[Sgt Greenbud]

I don't think we are going to police ourselves. That's not realistic. Look at the dispensaries. Some, but not all, are so obsessed with the money that they are willing to risk it all by not adhering the the guidelines that make it a reputable endeavor. If you have been to many clubs you will see a huge chasm between the good ones and the bad ones. Policing ourselves doesn't work. Greed is too powerful.

That being said, law enforcement needs to just quit harassing patients and dispensaries.
Its already a done deal. Marijuana WILL be decriminalized for medical use, at least.

They need to just see where its going and if they have issues with quantities and cash flow then they need to tax it.

THE ONLY REASON marijuana is being legalized is because politicians want the money behind it. Of course it is real, effective medicine. But the politicians are not legalizing it to be altruistic. They are doing it because they see the potential in taxing it.

That's fine. If we want to enjoy the freedom of consuming marijuana whenever, wherever we want, we are going to have to pay for the privilege.

If you try to fight that one, you'll have two fights on your hand:

1. Legalizing cannabis
2. Reforming the American politcal system

I'll settle for legal weed for now. Then once its completely legalized, the country can sit back smoke a spliff, and start planning for political reform.

Baby steps, man. Baby steps.