I actually meant to blog about the San Diego case of People v. Jackson a couple weeks ago, when I obtained a copy of the Appellant’s Opening Brief in the case. Being busy working up some new medical marijuana cases myself, I didn’t get around to it.
Frankly, I assumed, after a cursory reading of the case, that it was a no-brainer: The trial judge must have been high. The case was going to be reversed on appeal.
And so it has been. The case, as Smell The Truth reported, is another small victory for those who grow, use, possess, sell, or transport medical marijuana in compliance with California’s medical marijuana laws.
It is, however, a small victory.
As I wrote the other day, the question of “for-profit/non-profit” should be a red herring. Nothing in the law actually states that no one is allowed to make a profit selling marijuana. I think the language is unambiguous in this regard, but the appellate courts seem to read it for the opposite of what it actually says. The appellate court in People v. Jackson not only did the same, but made it more explicit.
[W]e also recognize that in determining whether a [sic] MMPA defense has been established, a trier of fact must consider whether the organization operates as a for profit [sic] enterprise or is a nonprofit enterprise operated for the benefit of its members. ((People v. Jackson, D058988 (Super.Ct. No. SCD222793) at 3-4. I’m reading a slip opinion, since the opinion was just filed yesterday; hence the weird citation format.))
The court ends up stating:
In resolving that question, an organization’s large membership and governance processes, if any, are relevant. …[¶]… Thus, on remand, the jury should be instructed that in determining whether Jackson is entitled to a defense, the jury must determine whether the collective he participates in is a profit-making enterprise and further that in resolving that question, it should consider, in addition to other evidence of profit or loss, the size of the collective’s membership, the volume of purchases from the collective and the members’ participation in the operation and governance of the collective. ((Id. at 4 (alterations added).))
And, in section IV of the opinion, the court holds,
[W]hen a defense under the MMPA is offered, the People are entitled to an instruction advising the jury that a collective or cooperative protected by the MMPA must be a nonprofit enterprise. ((Id. at 18 (alteration added).))
[I]n addition to an instruction that an enterprise must be a nonprofit, the People are entitled to an instruction that in considering whether a collective or cooperative is nonprofit, a jury may consider the testimony of the operators of the enterprise, its formal establishment as a nonprofit organization, the presence or absence of any financial records, the presence or absence of processes by which the enterprise is accountable to its members, the size of the enterprise’s membership and the volume of business it conducts. ((Id. at 18-19.))
Frankly, I think that’s going to open up a can of worms that isn’t going to improve the lot of medical marijuana users, or collectives, as much as would be the case if the court would recognize what was obviously the intent behind the language of the MMPA. (For more on that, see my article, “Tokin’ Appreciation: Medical Marijuana & ‘Profit.'”) Instead, we’re going to see a lot more convictions, particularly in areas where local government officials have successfully put collectives and cooperatives out of business — thus making financial and other records harder for the defense to obtain when individual members of a collective are charged after the collective has dissolved. This is true even though the court also said,
Of course, the jury should also be instructed that a defendant is only required to raise a reasonable doubt as to whether the elements of the defense, including the nonprofit element, have been proven. ((Id. at 19, citing People v. Jones, 112 Cal. App. 4th 341, 350, 4 Cal. Rptr. 3d 916 (2003).))
Equally important, the criteria laid out by the court doesn’t even really make sense from the point of view of the law as the court mistakenly reads it. Why should the size of a non-profit have any bearing on whether it is a non-profit or a for-profit operation? Is the Red Cross for-profit because it is worldwide? Similarly, is the court stating that a non-profit cannot have any money in the bank? What if, knowing how often members are arrested and charged with crimes, the collective decides to maintain a defense fund? Is the presence of “excess” — however that may be determined — money in the defense fund going to be used to show that it is a for-profit operation?
It makes sense for the court to say — as it did — that
As we interpret the MMPA, the collective or cooperative association required by the act need not include active participation by all members in the cultivation process but may be limited to financial support by way of marijuana purchases from the organization. ((Id. at 3.))
So what is the basis for saying “the collective or cooperative association required by the act need not include active participation by all members in the cultivation process,” but imposing a rule that the members’ active participation “in the operation and governance of the collective” is somehow required by the act?
The fact of the matter is that the number one reason collective or cooperative association makes sense is that some members may be too ill to participate in the activities of the collective, but still need to “obtain and use marijuana for medical purposes upon the recommendation of a physician” in a way that ensures they are “not subject to criminal prosecution or sanction.” ((California Health & Safety Code § 11362.5(b)(1)(B); People v. Urziceanu, 132 Cal. App. 4th 747, 767, 33 Cal. Rptr. 3d 859 (2005).)) The same applies to their participation in its governance.
If a particular collective obtains a reputation for being legit, it may very well cultivate (hehe) a cooperative of sick people in need of medicine from a reliable and trusted source. Under the Jackson ruling, such a collective’s success could be used against it in court.
Ironically, the Jackson court relied upon a case with “a context very similar to the circumstances set forth in the record here.” ((Id. at 9, citing People v. Colvin, 203 Cal. App. 4h 1029, 137 Cal. Rptr. 3d 856 (2012).)) There, in Colvin, the Attorney General tried to make an argument similar to that made in Jackson — that there were not enough members actively participating in cultivation to bring it under the MMPA. The Colvin court said:
The Attorney General does not specify how many members must participate or in what way or ways they must do so, except to imply that Holistic, with its 5,000 members and 14 growers, is simply too big to allow any “meaningful” participation in the cooperative process; hence, it cannot be a “cooperative” or a “collective” in the way section 11362.775 intended. But this interpretation of section 11362.775 would impose on medical marijuana cooperatives requirements not imposed on other cooperatives. A grocery cooperative, for example, may have members who grow and sell the food and run a store out of which the cooperative’s products are sold. But not everyone who pays a fee to become a member participates in the cooperative other than to shop at it. ((Colvin, supra, 203 Cal. App. 4th at 1039 (italics in original; underlining added for emphasis). This same passage is quoted in Jackson, although the court mistakenly cites to 1038-1039 of the Colvin opinion.))
Similarly, the cooperative may be very large, and not everyone who pays a fee to become a member participates in the governance of it. It is worth noting, also, that the cooperative at issue in Colvin numbered around 5,000 individuals, while the cooperative in Jackson numbered 1,676. There was some indication that perhaps not all those 1,676 were still members at the time of the arrest that lead to the charges.
So why would the Jackson court state that the jury can consider the size of the cooperative and the participation in governance, when deciding whether a defendant’s conduct was protected under the MMPA? Allowing that means carving out an exception for marijuana collectives that doesn’t apply to any other collectives in California. Nor is there any basis in the MMPA itself for this requirement.
Personally, I think what the court was doing was splitting the baby, or throwing a bone to the prosecution, or torpedoing the law just for marijuana collectives — pick whatever metaphor you prefer. While recognizing that upholding the trial court would create an irrational split of authority (because of the Colvin case), the appellate court nevertheless appears to want to make it possible for juries to convict, notwithstanding the medical marijuana defense.
You see, Jackson had already once been acquitted by a jury, because the jury said:
[I]t was all contingent on the medical marijuana defense and the lack of definition within the state law as far as what constitutes a collective or a cooperative…. So, um, just for the lack of definition of that state law was really the key. [¶]…[¶] Um, the prosecution gave his…kind of narrow definition during the, the closing arguments, but there was nothing in the law that really backed that up. ((Jackson, supra, at 4-5 (alterations in the original).))
Rather than clarify things for the jury in accordance with the law, the appellate court just pulled something out of its ass that has no basis in law. Or, to paraphrase the juror in Jackson,
Um, the court is giving its…kind of narrow definition…but there is nothing in the law that really backs that up.
And to paraphrase the Colvin court,
[T]his interpretation of section 11362.775…impose[s] on medical marijuana cooperatives requirements not imposed on other cooperatives.
To see just how screwy this ruling is, consider that the Jackson court also noted:
The Attorney General asks that we reject the relatively broad interpretation of the MMPA adopted by the courts in Colvin and Urziceanu. However, as was the case in Colvin, the Attorney General is unable to point to any portion of the MMPA itself which suggests the Legislature intended to put any numerical limits on the size of a collective or cooperative. As the court in Colvin recognized, there is nothing in the MMPA which suggests where such a numerical limit should be placed and in any event a numerical limit would be somewhat at odds with one of the express purposes of the MMPA, to wit: enhancing access to medical marijuana. (Stats 2003, ch. 875, § 1, subd. (b), pp. 6422-6423.) ((Jackson, supra, at 14-15 (emphasis added).))
Right. “The Attorney General is unable to point to any portion of the MMPA itself which suggests the Legislature intended to put any numerical limits on the size of a collectcive or cooperative.” Numerical limits “would be somewhat at odds with one of the express purposes of the MMPA.”
Yet under Jackson, courts are free to instruct — no, they are actually told that they should instruct — juries to consider the size of the medical marijuana collective and how or whether members participate in the operation and governance of it when deciding whether a defense under the MMPA applies, although the defense isn’t prevented from trying to a use a medical marijuana defense based on whether “enough” members participate in the cultivation itself. This also frees up the prosecution to argue that “this collective is just too large for the law to apply here; this is obviously a for-profit operation.”
Does that make sense?
Only if you’re as high — or as antagonistic to the will of the voters and the State Legislature — as the judges in Jackson.