Grow at your own risk
July 23, 2013
Joshua Emerson Smith, San Diego City BeatLast September, when Deborah and Dennis Little first saw a Sheriff’s Department helicopter hovering over their rural property in Ramona, the couple never imagined that almost a year later, they’d be sitting in a courtroom. The Littles were into their second year of growing cannabis. Dennis, 64, used marijuana to relieve pain from arthritis and neuropathy in his hands. Deborah, 59, who’d been treated for AIDS for two decades and is a cancer patient, used it to stimulate hunger and also alleviate pain.
“We were both standing in the garden looking up at it, and I said, ‘We’re legal,’” Dennis recalled. “And I fully expected a sheriff’s car to pull up and knock on the door and say, ‘We saw your garden from the air. Can we have a look?’”
However, that’s not how it went down. Looking like a pair of hip grandparents, the Littles found themselves last week in a Downtown San Diego courtroom, listening to their lawyer and a District Attorney prosecutor argue before a Superior Court judge the merits of the search warrant sheriff’s deputies used to raid the Littles’ property.
“There’s no way to determine prior to going in there if someone is using medical marijuana, or is a legitimate user of medical marijuana,” Deputy District Attorney George Loyd, told the judge.
The agent in the helicopter reported spotting roughly 100 cannabis plants on the Littles’ property. Based on the report, a judge issued a search warrant. In October, the Sheriff’s Narcotics Task Force showed up for an early-morning raid.
“There were a bunch of them, 15 or 16,” Dennis said. “They all had their guns pulled on us. I had four guns pointed at me. They were swarming all over like bees.”
After handcuffing the couple, the agents searched the house. They found roughly 29 cannabis plants, a digital scale, and several dozen zip-lock bags and jars filled with buds. They also found that the Littles’ doctor recommendations for medical marijuana were more than a month expired, a point the defense contests.
In response, the District Attorney’s office filed felony charges for illegal cultivation and possession for sales, threatening to send the couple to prison for up to three years.
The DA’s office offered a plea deal. The Littles declined, deciding to join a growing group of medical-cannabis patients determined to take their case to a jury trial.
Over the last four years, San Diego newspapers have been filled with stories of arrests and prosecutions of medical-marijuana users who claim innocence under state law. At the same time, medical cannabis dispensaries have been all but wiped out.
District Attorney Bonnie Dumanis and Southern District U.S. Attorney Laura Duffy have said they focus only on individuals who use California’s medical marijuana laws as an excuse to sell drugs.
“We’re not going to look at anyone who has a valid recommendation, who’s using for themselves,” said Deputy District Attorney Steve Walter, assigned to the narcotics unit. “The problem is people who are abusing the law for profit.”
The medical-cannabis community argues Dumanis’ policy targets innocent people. They encourage defendants to fight such charges, saying the majority of jury trials end in acquittal.
“The procedure is the punishment,” said defense attorney Lance Rogers, who’s representing the Littles. “Many people have no prior conviction. They’re attempting to comply with state law and feel they’re treated as criminals.”
So just how many San Diegans have been convicted of raking in sizable profits while hiding behind the state’s medical-cannabis laws?
“I couldn’t even hazard a guess,” Walter said. “We’re just not set up to give you meaningful data.”
How about a few examples where the DA’s office thwarted some obviously flagrant operations?
“It’s not like I’m trying to hide anything,” Walter said. “It’s just that people have rights to privacy. I just don’t want to put their names out there needlessly to try to prove a point.”
The DA’s office interprets “sales” very narrowly, said Nate Bradley, executive director at the California Cannabis Industry Association, a trade organization for dispensaries.
“The law says sales are illegal,” Bradley said. “But there’s state law that [says] you can get reimbursed. It’s basically an illegal transaction and a legal transaction going on at the same time.”
Depending on where you live, interpretation of the law can vary significantly. If you’re in Sonoma, Butte or Frenso counties, there’s little tolerance for the dispensary system. On the other hand, San Francisco’s Department of Public Health has a Medical Cannabis Dispensary Program that “permits, regulates and inspects medical cannabis dispensaries.” Advocates maintain San Diego’s lack of clear medical-cannabis guidelines allows Dumanis and law enforcement officials to dictate policy, spending resources on an unpopular cause.
“They’re not convicting people for this stuff,” Bradley said. “People don’t have faith in marijuana prohibition as a whole. You’re seeing a massive public rejection of those cases.”
However, the DA’s office doesn’t need sympathetic jurors to stop people from growing and distributing cannabis. The tool of choice has become the plea deal.
“Not many of these cases go to trial,” Walter said. “We work out some resolution—whether they provide evidence and we dismiss or they take a plea. That’s true in all criminal prosecutions.”
Rogers, whose legal practice specializes in defending medical-cannabis patients, agreed. “Many people, if you have a wife, a job, a reputation, say, ‘My back is against the wall. I want to fight but I can’t risk it.’”
Beginning in fall of 2008, regional law enforcement officials began cracking down on medical-cannabis collectives and dispensaries, targeting dozens of individuals.
Many people took deals. But some didn’t.
Eugene Davidovich, 32, who was charged with possession with intent to distribute, sales and transportation, opted to take the case to trial. In March 2010, a jury acquitted him on all charges.
“When I personally felt the injustice, I realized that this was misinformation, spin, and I just couldn’t stand for it,” said Davidovich, who went on to become the president of the San Diego chapter of Americans for Safe Access.
Around the same time, a jury cleared former dispensary owner Jovan Jackson, 35, on five counts related to possession and sale of cannabis. Following the acquittal, the DA’s office charged him again with one count of cannabis sales based on new information.
This time, the trial judge didn’t allow the medical-marijuana defense. The judge said Jackson’s roughly 1,600-person collective was invalid because not all of the members participated in cultivation of the cannabis.
The case was appealed in 2010, and in October 2012, a state appeals court reversed the trial court’s decision, setting a statewide precedent. The case is scheduled to go back to court this fall, and Jackson will be allowed to argue he’s in compliance with state law.
The DA’s office suffered another defeat last May when a judge dismissed the case of collective owner Dexter Padilla after a hung jury.
Some cases were referred to the U.S. Attorney’s office, where federal law doesn’t recognize California’s medical-cannabis laws.
The case of former dispensary owner Ronnie Chang, who’s facing more than 60 charges in federal court, prompted San Diego Mayor Bob Filner in May to publicly call on the jury to ignore the law based on moral principle and acquit Chang, an act known as jury nullification. The case is ongoing, and Chang remains behind bars.
At the end of 2011, under pressure from a referendum, the San Diego City Council repealed a zoning ordinance that, while heavily restrictive, would have allowed dispensaries to operate in a few parts of the city.
After the repeal, medical-cannabis dispensaries evaporated under heat from U.S. Attorney Duffy and City Attorney Jan Goldsmith. Raids and civil prosecutions left only a handful of operations hiding in the shadows.
With many dispensaries out of the way, Dumanis has recalibrated her sites, Rogers said. “Her office has been really focused on the patients, the cultivators.”
Cannabis dispensaries are no longer a major issue, Walter, the deputy district attorney, agreed. “We’re starting to see different types of cases coming to us. You see a lot of delivery services, commercial grows.”
Under a January 2010 California Supreme Court decision, a judge or jury must determine what’s “reasonably related to the patient’s current medical needs” when considering an individual’s medical-cannabis defense.
As a result, the appropriate size of a defendant’s cannabis garden has become a major point of contention.
Law-enforcement officers arrested Tim O’Shea, 48, in February 2012 for growing 16 cannabis plants. He was charged with cultivation and possession for sales.
O’Shea maintained he was a legal patient and the caregiver of his brother in-law Rick Krukowski, who also has a doctor’s recommendation.The judge acquitted O’Shea in July after a hung jury.
Not as lucky was Robert Orlosky. The 23-year-old was found guilty last week of felony cultivation. The DA’s office failed to convict him of possession for sales, but convinced a jury Orlosky was growing more than he needed, despite his doctor’s recommendation.
“The DA did a good job of turning it into a battle of math,” said his attorney Laura Sheppard. “This is a kid who’s never grown before. He doesn’t know how big the plants are going to get. But the amount isn’t so far off that this would be unreasonable.”
Orlosky will likely appeal the case, Sheppard said. But the outcome is telling. He had more than a pound of processed cannabis, three pounds drying and seven plants in the ground. The uncultivated cannabis was estimated to yield about three and a half pounds, bring his estimated yearly haul to around eight pounds.
An expert witness testified that eight grams a day or about 6.5 pounds a year, was considered high-but-realistic usage. The extra pound and a half was enough for the jury to convict Orlosky.
But that’s not a general rule of thumb.
Court-qualified cannabis expert Chris Conrad said he’s participated in cases where courts have allowed patients more than 100 plants.
“Most people start off with about 30 plants,” said Conrad, who’s testified in more than 275 cases around the state. “They don’t expect them all to make it. Most people try to stock up in case a subsequent year’s harvest fails.”
The Littles can relate to that. In 2011, when they first started growing, almost none of their plants made it, Dennis said. “Most of my crop was bunk. I didn’t know what I was doing. It’s a ton of work.”
He doubled down on his efforts and vowed to make 2012 a more plentiful harvest. However, right before the raid, the crop was hit with torrential rain.
“We had mold,” he said. “I’m out there trying to tie up broken branches. I was getting little caterpillars. A lot of the plants I had weren’t going to make it.”
If everything goes perfectly, an outdoor plant can yield, on average, roughly half a pound of processed cannabis, Conrad said.
After evaluating the 29 plants seized from the Littles’ garden, the DA’s office charged the couple with possession of 640 pounds of marijuana. Rogers said law enforcement officers could have been weighing unusable material, such as dirt and branches. A narcotics officer testified in court that the plants have since been destroyed.
As San Diego continues to define its medical-cannabis policy, three factors could play a major role over next 18 months.
State Senate President Pro Tem Darrell Steinberg has proposed a bill aimed at cleaning up some of the ambiguity around exchanging money for cannabis. SB 439, now in the Assembly, would allow nonprofit collectives and cooperatives to be reasonably compensated for the service of growing medical cannabis without the threat of prosecution.
The city of San Diego is considering bringing back a zoning ordinance for medical-cannabis dispensaries. While the ordinance would likely be restrictive, the medical cannabis community has voiced support for the move.
And lastly, the District Attorney’s race in November 2014 is already ramping up, with challenger Bob Brewer preparing to face off against Dumanis. Brewer has signaled support for a more lenient interpretation of medical-cannabis laws, vowing, if elected, to work with local governments to establish clear guidelines for its use.