Medical marijuana trial survives defense challenge

September 06, 2007

Terry Vau Dell, Oroville Mercury-Register

A judge Thursday refused to toss out Butte County's first medical marijuana co-op case.

The attorney for a Chico man charged with possessing over 210 pot plants, which he claimed he was growing for himself and six other medical marijuana users, claimed in court he has a virtual immunity from prosecution.

But Butte County Superior Court Judge Sandra McLean sided with the prosecution, ruling that whether Robert Gordon Rasmussen was part of a lawful medical marijuana collective is an issue for a jury to decide.

The judge has set a trial in December for Rasmussen on charges of felony cultivation of marijuana and providing a location where pot is grown.

Rasmussen was arrested April 4 after a Butte County sheriff's deputy responding to a call about dogs fighting at his Berrington Drive home, claimed to have smelled marijuana when he entered the back yard.

A warrant was obtained and a search of the house reportedly turned up an indoor grow of 210 plants — only about 40 of which were classified as mature — plus about four pounds of processed pot and a handgun.

Omar Figueroa, a San Francisco attorney representing Rasmussen, sought dismissal of the criminal charges Thursday by way of a legal challenge called a "demur."

The defense argued that as a member of a lawful collective of medical marijuana patents, Rasmussen enjoyed immunity from criminal prosecution and that the judge "lacked jurisdiction" to try the pot cultivation charges.

But deputy district attorney Michael Candela countered that Proposition 215, the 1996 voter-approved initiative that made it legal to smoke marijuana with a doctor's recommendation in California, only provided "an affirmative defense" to criminal cultivation charges; "it does not confer complete immunity from arrest and prosecution."

The judge agreed with the prosecutor that, in any event, a demur is not the proper vehicle for challenging such issues of fact.

In refusing to toss out the case at this juncture, McLean stressed she did not consider the merits of the case.

During a preliminary hearing last month, sheriff's deputies testified that Rasmussen, who reportedly suffers from cystic fibrosis and ingests marijuana to stimulate his appetite, claimed he was growing pot in his home for himself and six other certified medical marijuana patients.

But the detectives said two of the patients admitted they had pulled their plants the day before the bust and that the doctor's recommendation for a third man had expired.

Complicating the case is the fact Proposition 215 set no limits on how much medical marijuana one could possess or where it could be lawfully obtained.

In 2003, the state Legislature enacted SB420, which among other things, legitimized medical marijuana cooperatives, and set a "base" limit of six mature plants, 12 immature plants or eight ounces of dried marijuana per patient.

Locally, District Attorney Mike Ramsey has established a set of written guidelines, which, while allowing a larger one-pound threshold limit of medical pot per-patient, also required each member of a co-op to post their doctor's recommendations at the grow site and participate in the cultivation process or designate a "primary care giver" if they are too ill to do it themselves.

Ramsey maintains he promulgated the guidelines to prevent those who grow marijuana commercially from trying to use Proposition 215 "as a cover."

Rasmussen's Bay Area attorney asserts the "underground" local rules have no force or effect because they were never ratified by the Board of Supervisors or other legislative body.

Undeterred by Thursday's ruling, the lawyer for Rasmussen said he intends to challenge the sufficiency of the evidence produced at a preliminary hearing last month.

He will also seek to have the marijuana found at his client's house suppressed prior to trial, on grounds that sheriff's officers did not have the right to enter the Chico man's backyard without a warrant.



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