The Ukiah Daily Journal wrote:Prosecutors and defenders weigh in
By TIFFANY REVELLE | The Ukiah Daily Journal
Updated: 10/24/2009 12:48:09 AM PDT
Defenders and prosecutors agree: droves of people end up in the court system on marijuana-related charges, and the legal landscape keeps changing.
Bob Nishiyama, commander of the Mendocino Major Crimes Task Force, said he's seen a surge in marijuana growing, illegal and otherwise, since voters passed Proposition 215 in 1996, also known as the Compassionate Use Act.
Mendocino County District Attorney Meredith Lintott said her marijuana case volume has risen 53 percent during the last two years. She has deputies whose full-time jobs are to prosecute marijuana cases.
"If it's medical marijuana, we're not charging it. And for the most part, if it's a pure medical marijuana case, we're not going to see the reports from the Sheriff's Office or any of the other agencies," Lintott said.
Typical marijuana-related charges include cultivation, drying, processing and harvesting; possession for sale; sale, offer to sell, attempt to sell or transport; and maintaining a place for the production or storage of marijuana.
Lintott said DA's Office prosecutors see cases where there is no claim of medical use, or where there is a claim but no documentation to back it up.
"Or they're growing an excessive amount," Deputy District Attorney Katherine Houston said, "or there is evidence of sales, firearms, child endangerment, environmental or Fish and Game violations that are not in the gambit of medical marijuana defense."
Omar Figueroa, a private San Francisco defense attorney for more than 10 years, said most of his marijuana-related cases never make it to court. Marijuana cases represent about 80 percent of his case load, half of which is medical marijuana.
Medical marijuana cases are often dismissed before they can get to trial, Figueroa said. Often, he said, law enforcement officers overlook doctors' recommendations at the scene, he said.
"So many times they just overlook it," Figueroa said.
He said he doesn't see many cases where medical marijuana patients were within legal state guidelines: six mature plants or 12 immature plants and eight ounces of processed marijuana.
But he doesn't blame police for often leaving the question of whether a person was within legal parameters to the court system, because there are three kinds of medical marijuana guidelines to sort: state plant limits, city or county limits and the amount a person's doctor recommends.
Recommendations to use marijuana can be written or verbal, according to Figueroa, which can cause a gray area when officers are at the scene of a grow.
Deferred sentencing is an option commonly used for those who are not within guidelines, according to the defense and the prosecution. The defendant pleads guilty on the charges, and a sentence is entered but not carried out as long as the defendant doesn't break the law again in a specified period of time, usually a year.
<span class="postbold">Where the holes are</span>
The biggest holes in the prosecution's arguments in marijuana cases have to do with how much each plant is expected to produce, according to Figueroa. The standard used in court has been that each plant is expected to produce a pound to two pounds of processed marijuana, he said, adding that experts disagree.
Chris Conrad of Safe Access Now is a court-qualified marijuana expert and teaches at Oaksterdam University, which boasts " the highest quality training for the cannabis industry."
Conrad says he's investigated and testified in 1,314 marijuana cases that ended up in court systems throughout the country since he started testifying as an expert in 1997, a year after voters passed the Compassionate Use Act, also known as Proposition 215. Of those, nine were in Mendocino County.
"Typically, police exaggerate the size of the gardens by four to 10 times as big as they actually are," he said.
The estimates officers give in court regarding how much fresh marijuana a garden was expected to produce are based on the weight of the plants when they are cut down and still full of water, Conrad said.
In court, Conrad refers to a 1992 federal Drug Enforcement Agency study that he says found the finished product is about 7 percent of the plant's total weight. Marijuana loses about 75 percent of its weight when it dries, he said.
The pound-per-plant standard, he claims, is arbitrary.
Opinions vary on how much medical-grade bud a marijuana plant can be expected to produce.
The Drug Policy Alliance Network, www.drugpolicy.org
, concluded that a 1992 DEA study called "Cannabis Yields" said the average yield for a female plant in 1991 was about a pound. Including leaf and bud, according to the alliance's summary, the usable, dry weight yield of one plant could be up to 5.1 pounds.
<span class="postbold">Sales a sticking point</span>
Prosecutors hold that selling and buying marijuana is still a felony under state law.
"If somebody is growing and using the medical marijuana as a front, or as a guise to actually be having a profit-oriented enterprise, it's going to be fairly large amounts. So it's not going to be somebody that's allowed to have six and they have seven," Lintott said.
Even the larger grows aren't always subject to prosecution, depending on whether the defendant or defendants can prove they were collectively or co-operatively growing on one property with other patients.
Figueroa and other defense attorneys argue that growers have the right to be reasonably compensated for their time.
"Sales are illegal, except when it's from a caregiver to a patient, or from a member of a collective or a co-op to another member," he said.
Figueroa says it could theoretically be argued that such compensation could even be tied to the market value of a marijuana plant. Horticulturalists, he says, is paid based on the value of the plants they raise.
"Many people think it's lawful to sell to dispensaries, and it's not," Houston said.
For compensation, Houston said prosecutors look at what the grow costs, including fertilizer, electricity, water, seeds, clones, equipment and labor.
"It's a completely under-the-table enterprise," Houston said, "and it's not a legitimate enterprise that a valid producer of marijuana, who was producing it for medical patients, would have. They would know exactly what their overhead was per pound. That's how you do business," Houston said.
Deputy District Attorney Rayburn Killion estimated a pound of marijuana costs $400 to produce, but sellers get between $2,500 and $4,500 per pound in the Bay Area and points south, as well as in other states and countries.
Pay-and-owe records, scales and baggies police find at the scene are not all prosecutors look at for proof of sales, according to Lintott.
"At this point we're going to be looking for the stream of income, to see that they are actually making income," she said. "They might own different properties, they might have luxury vehicles, luxury toys. It wouldn't necessarily be just the generators, or the high PG&E bills. Those are things you're going to see; those are things you're going to look for, but you're going to have to find that they are actually selling for a profit on the black market, so to speak."
<span class="postbold">Buyers coming here from all over</span>
The prosecutors are also kept busy with buyers from all over the nation.
"We have a lot of Chicago people that come out to buy," Houston said. "We are the marijuana capitol of the world. They all come here to buy."
Mailing marijuana is risky because packages are inspected randomly, according to Lintott, but "the greed and the profit they do make outweighs their fear of being caught."
She added, "The criminal mind that works to break the law is not limited to marijuana profiteers. It's the same kind of risk-cost analysis that any other criminal does before they commit a crime to gain monetary advantage."
Houston said people who buy marijuana from Mendocino County don't claim to use it for medicine.
"They're members of syndicates, of crime organizations, of gangs. And they're simply in it to make money," she said.
<span class="postbold">Pot is its own currency</span>
Nishiyama said Mendocino County's marijuana market is so flooded that the lack of demand for it here has turned Mendocino-grown pot into the currency of the illegal drug trade.
"People with access to marijuana here are trading it for crank, cocaine and heroin in other areas," he said.
Then, there's the violent crime associated with marijuana growing.
"The home invasion robberies have only been happening, I'd say in the last five to 10 years, where it's gotten just huge, where we never saw that before," Houston said.
"It's exploded since '07," Lintott said.
Houston and Killion cited instances of people coming up from the Bay Area and points south on the pretense of buying marijuana, then taking it instead at gunpoint.
"That is becoming more, almost the norm, than the exception," Houston said.
She said for a long time, growers didn't report even violent thefts of their marijuana because they were afraid of prosecution. Now, the influx of people coming here intending to steal marijuana has become the office's higher priority.
"They come with criminal records, they come with stolen firearms, they come with an attitude that they're going to get their marijuana regardless; they're going to steal it and people are going to be hurt if they resist. That, we have decided, is a worse harm than somebody simply growing it and having it in their house," Houston said, adding that illegal growers would still face prosecution.
<span class="postbold">New standards emerge</span>
"This is an alcohol prohibition redo," said Keith Faulder, a private defense attorney who used to be a Mendocino County prosecutor. "Any violence associated with it is based on the artificial value of marijuana, created by the prohibition against marijuana. If there's no crime, there's no value."
Figueroa says he sees prosecutors claiming that a large amount of marijuana indicates illegal use, but he argues that even large amounts can still be for a legal, medical use. He argues that making marijuana oil or honey to eat with food or inhaling the vapors instead of smoking it requires greater quantities.
"Ultimately, I think what the courts are going to rule is that whatever amount is reasonably related to a patient's medical needs, one is allowed to have. And that is a case-by-case basis; it depends on the patient's medical condition, as well as their mode of ingestion," Figueroa said.
Lately, he said, the pound-per-plant argument in court has given way to a newer standard, with law enforcement experts estimating a marijuana plant growing indoors will generate a pound of bud per 1,000-watt light.
"When they think somebody had the appropriate number of plants but they (the plants) yielded too much, what they (prosecution) say is that they're (the grower) over the half-pound limit once they start drying the marijuana," Figueroa said.
He continued, "What we argue in that case is ... Kelly - that those (SB 420) guidelines violate the California Constitution."
If the pending People vs. Kelly suit prevails and the limits in SB 420 deemed unconstitutional, Figueroa said people can be over the current limits but still within their legal rights. Prosecutors, he argued, will have to prove beyond a reasonable doubt in court that the amount a person has is not related to his or her medical needs, likely having to produce medical experts to do so.
Faulder differs with Figueroa's position about the pending Kelly case. He said without SB 420 guidelines, "it's up to individual deputies to decide in the field whether this person is in compliance or not."
He said more specific doctors' recommendations would be needed, making the process more difficult for law enforcement, the District Attorney's Office and patients.
"They will still have to go through painful court hearings about what's lawful and what's not," Faulder said.
Tiffany Revelle can be reached at firstname.lastname@example.org
, or at 468-3523.