Dana Littlefield, San Diego Union-Tribune
An appeals court on Wednesday reversed the felony conviction of a former Kearny Mesa marijuana dispensary manager who was found guilty of possessing and selling the drug for profit.
The court found that the trial judge should not have barred Jovan Jackson, 34, from arguing that his conduct was permitted under California law, which allows medical marijuana patients to associate for the purpose of “collectively cultivating” the drug.
Unless the state Supreme Court intervenes, the case will be sent back to San Diego Superior Court, where it could be tried again.
“Obviously, we’re delighted by the court’s opinion,” said Joseph Elford, of Oakland-based Americans for Safe Access, who argued the appeal on Jackson’s behalf. “It gives Mr. Jackson some justice in what’s been a prolonged and unfortunate case.”
The District Attorney’s Office said it stands by its prosecution of Jackson as well as its interpretation of the law. Attorneys from that office have argued that to use medical marijuana, patients (or their primary caregivers) must grow it.
“We continue to embrace our interpretation that the Legislature limited the protected activity to the cultivation of marijuana for medical purposes and not large-scale distribution of marijuana,” said Steve Walker, a spokesman for the office.
“It’s our hope that the courts will provide more clarity as to the scope of the protected activity,” he said.
Walker said no decision has been made as to whether Jackson will be retried.
The Attorney General’s Office, which opposed Jackson’s appeal, said it is reviewing the appellate court’s decision.
Jackson was convicted in 2010 of illegally possessing and selling the marijuana through the Answerdam Alternative Care collective. He was placed on probation for three years.
Before trial, the District Attorney’s Office filed a motion asking the judge not to allow Jackson to argue a medical marijuana defense. Prosecutors contended that Answerdam was not a collective as allowed by law, but a “retail business” that took in $1,000 to $1,500 a day.
Superior Court Judge Howard Shore determined that in light of the collective’s 1,600 members, Jackson could not establish that the organization was created for the purpose of “collectively cultivating marijuana,” rather than simply distributing it.
But a three-judge panel of the 4th District Court of Appeal voted unanimously to reverse Jackson’s conviction, saying that even though very few members of Jackson’s collective members participated in the actual cultivation process, that did not preclude him from presenting a medical marijuana defense.
However, the court stressed that when considering such a defense, a judge or jury has to determine whether an organization operates on a nonprofit basis. To answer that question, an organization’s large membership and system of management are relevant.