Orange County Register
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A Santa Ana man, David Lee Herrick,was convicted of felony marijuana sales last week even though he distributed it to people who had recommendations from doctors and believed he was providing the marijuana pursuant to Prop. 215, passed by the voters in 1996.

The jury asked the judge, William R. Froeberg, about how Prop. 215 should apply, but Judge Froeberg ruled that Mr. Herrick’s attorney couldn’t use the initiative as a defense. The judge’s argument is that while the initiative, now Health and Safety Code Section 11362.5, provides a defense against possession and cultivation charges, it does not offer a defense against the charge of selling marijuana, which is still illegal under federal law but seems to be open to question under state law.

Deputy District Attorney Carl Armbrust says the verdict in Orange County Superior Court in Santa Ana sends a simple message: it is illegal to exchange marijuana for money in California, whether the person receiving the marijuana has a prescription or not.

That sounds like an attractive argument for those law enforcement officials and others who still want to believe that the medical marijuana initiative was a big mistake that can’t work in practice. Fortunately for sufferers who seek the drug and for other supporters, the legal situation in California is not quite that cut-and-dried. In fact, there is recent legal precedent that, if used by the judge in the Herrick case, could well have led him to a different opinion and, for Mr. Herrick, a retired San Bernardino County sheriff’s deputy, a different outcome.

There have been two cases decided by California appeals courts since Section 11362.5 was enacted that may have bearing. In People v. Trippett (September 1997), the Court of Appeal for the First District ruled that Prop. 215 could be used as part of the defense in an appeal of a person convicted of marijuana possession (the defendant had two pounds in her car) before the initiative passed in November 1996 and the case should be remanded for a new trial.

The issue was Section 11360, still in effect, which makes it a felony to sell, transport or import marijuana. The court ruled that "as a general matter, Prop. 215 does not exempt the transportation of marijuana allegedly used or to be used for medical purposes under section 11360. However, and as even the attorney general concedes, practical realities dictate that there be some leeway in applying section 11360 in cases where a Prop. 215 defense is asserted to companion charges. The results might otherwise be absurd."

While transportation was not central to the Herrick case, this ruling demonstrates the leeway with which the initiative is being interpreted.

The other case, which bears more directly, is People v. Peron, in which the Court of Appeal, First District, ruled in December that the Cannabis Buyers Club in San Francisco did not qualify as a "primary caregiver" and would have to cease the kind of operations in which it was engaged. In making the ruling, however, the court noted there were difficult questions involved and tried to clarify some of them.

"Although the sale and distribution of marijuana remain as criminal offenses under section 11360, bona fide primary caregivers for section 11362.5 patients should not be precluded from receiving bona fide reimbursement for their actual expense of cultivating and furnishing marijuana for the patient’s approved medical treatment." A few paragraphs later, the court says: "Assuming responsibility for housing, health or safety does not preclude the caregiver from charging the patient for those services. A primary caregiver who consistently grows and supplies physician-approved or prescribed medicinal marijuana for a Section 11362.5 patient is serving a health need of the patient, and may seek reimbursement for such services."

In a concurring opinion, Justice Kline notes: "The ‘right to obtain’ marijuana is, of course, meaningless if it cannot legally be satisfied. The majority does not say qualified users may not obtain marijuana but it does say no one has the right to sell or furnish it to them, which is the functional equivalent. Obtaining marijuana from another may, however, be the only practical way to secure it for many seriously ill Californians who have a right to obtain and use the substance, because they and their primary caregivers may as a practical matter be unable to cultivate the plant or await harvest."

Justice Kline refrained from issuing hard-and fast guidelines because "local governments in California are now exploring ways in which to responsibly implement the new law" and the courts should let them.

What California needs, in short, is local officials, prosecutors and judges with a desire to implement the will of the people in a responsible and sober fashion, rather than a desire to thwart the will of the people or to prove that the will of the people was foolish.