Pubdate: Thu, 21 Aug 2008
Source: Willits News (CA)
Copyright: 2008 Willits News
Contact:  http://www.willitsnews.com/
Details: http://www.mapinc.org/media/4085
Author: Linda Williams, TWN Staff Writer
Referenced: People v. Kelly http://www.canorml.org/news/kellyruling.html
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/topic/Mendocino+County

SUPREME COURT TO CONSIDER MARIJUANA LIMITS

Last Wednesday the California Supreme Court unanimously agreed to 
hear the case of California vs Patrick Kelly to determine whether any 
limits imposed by the legislature to the Compassionate Use Act is 
constitutional.

While the California Supreme Court takes up the issue, the existing 
limits in the California Health and Safety Code remain in effect 
throughout much of California. For Mendocino County, the limits are a 
bit murkier as the ongoing legal challenge to the portion of Measure 
B, which had the county adopt the state limits may await the final 
Supreme Court decision.

Superior Court Judge John Behnke in his August 8 decision on the 
challenge to the Measure B limits ruled "if the state legislature 
cannot amend a state law passed by initiative (the Compassionate Use 
Act) by passing specific legislation certainly the electorate of a 
county can't amend a statewide initiative by passing a local 
ordinance or initiative."

While this decision was made prior to the Supreme Court accepting the 
Kelly case for review, Behnke cited the more recent appeals court 
ruling from July 31 of California vs Phomphakdy as raising similar 
issues to the Kelly case although it cannot be cited for 30 days and 
also may be accepted by the Supreme Court for further review.

The Behnke decision leaves the county effectively without any new 
guidelines for law enforcement, although the statewide limits appear 
to serve as a minimum protection for medical marijuana users, at 
least until the Phomphakdy case either becomes law on August 30 or is 
accepted for Supreme Court review.

A review of California vs. Patrick Kelly:

A Los Angeles County medical marijuana case, which most agree would 
never have seen a courtroom in Mendocino County, has raised questions 
on whether any limits imposed by the legislature to the Compassionate 
Use Act is constitutional.

The Court of Appeal in the case of California vs. Patrick Kelly ruled 
limits on medical marijuana possession imposed by the Health and 
Safety Code to be unconstitutional. In July, the state Attorney 
General petitioned the state Supreme Court to review the case. On 
August 13, the Supreme Court agreed to hear the case, leaving in 
place the current provisions of the Health and Safety Code.

In California vs. Patrick Kelly, the appeals court overturned Kelly's 
2006 conviction for possession of more than an ounce of marijuana for 
which he received a sentence of 2 days in jail and 3 years probation. 
The jury was asked, but declined, to convict Kelly of possession and 
cultivation of marijuana for sale.

A summary of the case reveals a substantially different prosecutorial 
atmosphere in Los Angeles County than prevails in Mendocino County. 
According to court records, Kelly suffers from several ruptured 
vertebrae causing severe back pain, as well as mood disorders, 
hepatitis, nausea and lack of appetite, which he had tried treating 
with epidurals, pain therapy, hot and cold braces, nerve stimulators 
and medication. Dissatisfied with this treatment plan, in part due to 
the cost of pain management pills, Kelly sought a recommendation to 
use marijuana, which he received in 2005.

Unable to afford marijuana from a dispensary, Kelly began growing a 
few plants at his home, consuming between one and two ounces per week.

Based on a tip from an informant and the visibility of some pot 
plants in the backyard, law enforcement officers obtained a search 
warrant for Kelly's home and confiscated 12 ounces of processed pot 
stored in 2-ounce baggies, seven potted marijuana plants, a loaded 
gun in the nightstand and a scale. Kelly had taped a copy of his 
valid medical marijuana recommendation to the garage door including a 
phone number where it could be verified 24 hours a day, keeping the 
original copy in his bedroom. The deputy called and verified the 
validity of the recommendation. One plant had a homemade trip wire 
constructed from Christmas wrapping and bells.

Because Kelly had about 4 ounces more marijuana than allowed under 
the California Health and Safety Code and did not have a special 
doctor's recommendation to exceed the code amount, he was arrested 
for cultivation and possession of marijuana for sale. The charges 
were filed despite the lack of any evidence associated with the sale 
of marijuana such as nickel and dime bags, pagers, cell phones, 
pay-owe sheets, money, safes or elaborate growing systems at the 
Kelly residence. Kelly denied ever selling marijuana.

The case went to a jury trial. During the trial, according to the 
appeal, the prosecutor improperly instructed the jury that because 
the Health and Safety Code set an eight-ounce possession maximum for 
medical marijuana, the possession of more, which was not specifically 
authorized by a recommendation, was illegal. The case was overturned 
and a new trial ordered.

Although the court also declared the current Health and Safety Code 
limits unconstitutional, when the Supreme Court agreed to take up the 
case, that declaration was set aside pending the outcome of a future 
Supreme Court ruling. 
- ---
MAP posted-by: Richard Lake