Pubdate: Thu, 25 Apr 2002
Source: Davis Enterprise, The (CA)
Contact:  2002 The Davis Enterprise
Website: http://www.davisenterprise.com/
Details: http://www.mapinc.org/media/2177
Author: Lauren Keene
Bookmark: http://www.mapinc.org/find?115 (Cannabis - California)

JUDGE TOSSES OUT POT CASE

A Yolo County judge dismissed a case against a Esparto man last week after 
his attorney successfully argued that the marijuana his client grew was for 
medical use.

Fermin "Ed" Aldana, 61, was charged with cultivation of marijuana, a felony 
punishable by up to three years in state prison, after Yolo County 
sheriff's deputies discovered 50 marijuana plants growing near his 
apartment last August.

Following a preliminary hearing last Friday, Judge Thomas Warriner 
dismissed the case after hearing testimony from Aldana's doctor and a 
marijuana expert who said the number of plants Aldana grew would yield just 
about the amount of marijuana he used -- about a half-ounce a week -- to 
curb pain from arthritis.

"It was probably the right call," Deputy District Attorney Rob Gorman, who 
prosecuted the case, said of Warriner's ruling. "The ironic thing is, this 
doesn't do anything for Mr. Aldana's next grow."

Gorman said the case highlights the confusion surrounding Prop. 215, a 
ballot measure passed by California in 1996 that makes it legal to 
prescribe marijuana for medical purposes. He said it provides no guidelines 
because different people require varying amounts of marijuana to treat 
their symptoms, and that it doesn't legalize marijuana cultivation.

"Simply growing the pot is against the law in any case," Gorman said. 
"However, the people who have a legitimate recommendation for marijuana, I 
think they have a misguided belief that they're immune to prosecution, and 
they're not."

Aldana's attorney, Assistant Public Defender John Klopfenstein, said his 
client has suffered from arthritis in his knees since 1990 but suffered 
side-effects from the medication prescribed to him by a Woodland doctor. He 
decided to try marijuana to ease his pain following the passage of Prop. 215.

After receiving a written recommendation from Dr. Eugene Schoenfeld of 
Sausalito, Aldana obtained some marijuana from dispensaries in the Bay Area 
but found that process "time-consuming and expensive," Klopfenstein said. 
He decided to grow his own plants and went to the Yolo County district 
attorney's office for information about how many plants he could legally grow.

"He was trying to get some guidelines so he wouldn't get arrested," 
Klopfenstein said, adding that Aldana left the office empty-handed. "He 
went to great pains to try to conform to the law."

Gorman said while he's not aware of the circumstances surrounding Aldana's 
query, people who ask about marijuana cultivation are advised that it is 
illegal, but that they can raise a medical-use defense if they're arrested.

In Aldana's case, the charges arose after the son of Aldana's landlord 
discovered the marijuana plants in various stages of growth on a patch of 
land between Aldana's apartment complex and the landlord's home. 
Klopfenstein said Aldana got permission from the landlord to grow the 
plants, and there were signs posted saying the marijuana was for medical 
purposes.

Nonetheless, the landlord's son contacted authorities, who -- according to 
countywide protocol since Prop. 215 passed -- confiscated the plants and 
referred the case to the district attorney's office. Aldana was not 
arrested, but prosecutors sent him a notice to appear in court after filing 
the cultivation charge in August.

Although Gorman alleged that 50 plants was too many for Aldana's personal 
needs, marijuana expert Chris Conrad of El Cerrito testified that the 
amount was indeed sufficient for his personal use. Schoenfeld also took the 
stand, confirming he recommended the drug to Aldana following a review of 
his past medical records.

Gorman said about 90 percent of people arrested for growing marijuana in 
Yolo County claim it is for medical use. However, few are able to meet the 
requirements for their defense, although two -- including Aldana -- have 
been successful in the past six months, he added.
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