Medicalmarijuana forfeiture case. (Medical Marijuana, California, Compassionate Use Act, Medical Marijuana Program Act, Disabilities, Disabled People, Cannabis, Matthew Pappas, Charles Schurter, Lee Durst, Greg Parham, Wheelchair, ADA, patients, federal government, controlled substances act, Americans with Disabilities Act, forfeiture, drug laws, war on drugs)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLAIMANTS’ FIRST REQUEST FOR JUDICIAL NOTICE LAW OFFICE OF MATTHEW PAPPAS 22762 ASPAN ST., #202-107 LAKE FOREST, CA 92630 • (949) 382-1485 MATTHEW S. PAPPAS (SBN: 171860) DAVID R. WELCH (SBN: 251693) LEE H. DURST (SBN: 69704) 22762 Aspan Street, Suite 202-107 Lake Forest, CA 92630 Phone: (949) 382-1485 Facsimile: (949) 242-2605 E-Mail: [email protected]Attorneys for Claimants, TONY JALALI and MORGAN JALAEI UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, v. REAL PROPERTY LOCATED AT 2601 W. BALL ROAD, ANAHEIM, CALIFORNIA (JALALI AND JALAEI) , Defendants. __________________________________ TONY JALALI AND MORGAN JALAEI, Titleholders. No.: SACV 12-1345 AG (MLGx) CLAIMANTS’ FIRST REQUEST FOR JUDICIAL NOTICE Date: Nov. 5, 2012 Time: 10:00 a.m. Dept: 10 D, Santa Ana Hon. Andrew Guilford REQUEST FOR JUDICIAL NOTICE The Claimants respectfully request, pursuant to Federal Rule of Evidence 201, that the Court take notice of Exhibits 1 through 13 included with this request. Exhibit 1: Letter from Scott C. Smith, city attorney for the City of Lake Forest, California to André Briotte, Jr., United States Attorney for the Central District of California dated May 3, 2011. Case 8:12-cv-01345-AG-MLG Document 8 Filed 10/03/12 Page 1 of 109 Page ID #:56
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CLAIMANTS’ FIRST REQUEST FOR JUDICIAL NOTICE
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MATTHEW S. PAPPAS (SBN: 171860) DAVID R. WELCH (SBN: 251693) LEE H. DURST (SBN: 69704) 22762 Aspan Street, Suite 202-107 Lake Forest, CA 92630 Phone: (949) 382-1485 Facsimile: (949) 242-2605 E-Mail: [email protected] Attorneys for Claimants, TONY JALALI and MORGAN JALAEI
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, Plaintiff,
v.
REAL PROPERTY LOCATED AT 2601 W. BALL ROAD, ANAHEIM, CALIFORNIA (JALALI AND JALAEI) , Defendants. __________________________________
TONY JALALI AND MORGAN JALAEI,
Titleholders.
No.: SACV 12-1345 AG (MLGx) CLAIMANTS’ FIRST REQUEST FOR JUDICIAL NOTICE Date: Nov. 5, 2012 Time: 10:00 a.m. Dept: 10 D, Santa Ana Hon. Andrew Guilford
REQUEST FOR JUDICIAL NOTICE
The Claimants respectfully request, pursuant to Federal Rule of Evidence 201, that
the Court take notice of Exhibits 1 through 13 included with this request.
Exhibit 1: Letter from Scott C. Smith, city attorney for the City of Lake Forest,
California to André Briotte, Jr., United States Attorney for the Central District of
California dated May 3, 2011.
Case 8:12-cv-01345-AG-MLG Document 8 Filed 10/03/12 Page 1 of 109 Page ID #:56
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CLAIMANTS’ FIRST REQUEST FOR JUDICIAL NOTICE 2
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Exhibit 2: Letter from André Briotte, Jr., United States Attorney for the Central
District of California to Scott C. Smith, city attorney for the City of Lake Forest,
California dated Oct. 7, 2011.
Exhibit 3: Opinion in California Court of Appeal case People v. Hochanadel, 176
Cal.App.4th 997 (2010).
Exhibit 4: U.S. Dept. of Justice Website page located at http://www.justice.gov
/usao/cac/Pressroom/2011/144.html accessed on February 25, 2012.
Exhibit 5: Orange County Register, Article, “Costa Mesa asked feds for help in
pot crackdown,” Sean Greene, Reporter, February 7, 2012.
Exhibit 6: DC ST §§ 7-1671.05 and 7-1671.06, parts of the District of Columbia
Legalization of Marijuana for Medical Treatment Act.
Exhibit 7: Excerpts from House Report 111-202 (H.R. 3170 amended) (enacted
as Pub. Law 111-117) (111th Cong., 2009).
Exhibit 8: Letter from Steven R. Welk, Assistant U.S. Attorney, written to
Nutritional Concepts in Costa Mesa, California dated Jan. 18, 2012.
Exhibit 9: Text of the “Legalization of Marijuana for Medical Treatment
Initiative Amendment Act of 2010.”
Exhibit 10: A true and correct copy of a Webpage from the National Cancer
Institute, a part of the federal National Institutes of Health, from March, 2011.
Exhibit 11: A true and correct copy of a letter from Robert Petzel, Undersecretary
of Health for the Veterans Department, dated July, 2010.
Exhibit 12: A true and correct copy of a Veterans Administration Directive 2011-
004.
Exhibit 13: Opinion in California Court of Appeal case Qualified Patients Ass’n
v. City of Anaheim, 187 Cal.App.4th 734 (2010).
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CLAIMANTS’ FIRST REQUEST FOR JUDICIAL NOTICE 3
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BASIS FOR REQUESTING JUDICIAL NOTICE
Judicial notice is appropriate for each of the items submitted by the Claimants
pursuant to Fed. R. Evid. 201. Under Rule 201(b), the Court may take judicial notice of
any matter “not subject to reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.”
Judicial notice may be taken at any stage of the proceeding. Fed. R. Evid. 201(f); Lowry
v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003); Bryant v. Carleson, 444 F.2d 353, 357-
58 (9th Cir. 1971). A Federal Court takes judicial notice of facts “if requested by a party
and supplied with the necessary information.” Fed. R. Evid. 201(d).
EXHIBITS 1 AND 2
This Court may take judicial notice of Exhibits 1 and 2 because each of those
exhibits is a matter of public record. See, e.g., Del Puerto Water Dist. v United States
Bureau of Reclamation, 271 F.Supp.2d 1224, 1234 (E.D. Cal. 2003) (taking judicial
notice of public documents, including Senate and House Reports); Feldman v Allegheny
Airlines, Inc. (D. Conn. 1974) 382 F.Supp. 1271, reversed on other grounds 524 F.2d 384
(2nd Cir. 1975) (taking judicial notice of data contained in President’s Economic Report).
A Court may take judicial notice of “records and reports of administrative bodies.”
Interstate Natural Gas Co. v. Southern California Gas Co., 209 F.2d 380, 386 (9th Cir.
1953).
Exhibit 1 is a letter from Scott C. Smith written to André Briotte, Jr., the United
States Attorney for the Central District of California. In the letter, Mr. Smith states that
his law firm serves as the city attorney for the City of Lake Forest (“LAKE FOREST”).
The letter is signed by Mr. Smith. It is written by Mr. Smith on behalf of LAKE
FOREST in his firm’s capacity as city attorney for LAKE FOREST, a government entity.
Accordingly, the letter is not subject to reasonable dispute and its authenticity as well as
accuracy is not in question.
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The letter is relevant because it shows that California cities are engaged in an
effort to rid themselves of all medical marijuana collectives and it asserts that California
appellate courts are interfering with the cities’ ability to accomplish that goal (see, e.g.,
Ex 1, at p. 1, showing the City frustrated because “the California Court of Appeal once
again stepped in to block enforcement ...”). This same sentence shows some or all of the
collectives are operating properly because it is unreasonable to even consider the state
appellate court would allow entities violating state1 law to remain operating. Moreover,
the letter shows the appellate court has intervened multiple times because that city uses
the word “again” describing one particular occasion the appellate court “stepped in to
block enforcement” apparently preventing it from being able to “rid” itself of the
collectives for nearly two (2) years (see, e.g., Ex. 1 at p. 2, claiming it has been “stymied
at every turn” in its nuisance abatement efforts). In the letter, LAKE FOREST asks the
United States Attorney to take action on its behalf (see, e.g., Ex 1, at p. 2).
Exhibit 2 is a letter from André Briotte, Jr. to Mr. Scott Smith. Mr. Briotte is the
United States Attorney for the Central District of California. The letter is on the official
letterhead of the U.S. Attorney’s office. It is signed by Mr. Briotte. It follows there is no
basis for reasonably questioning the letter’s authenticity and accuracy. The letter is
relevant because it is consistent with the closure order letters sent out by Plaintiff United
States of America (“UNITED STATES”) to patient collectives and shows the position
taken in respect to such collective, including the collectives referred to in the Lake Forest
letter for which the state appellate court has blocked enforcement actions. The letter is
further relevant because it shows the United States Attorney is taking action in California
despite Congress’s action in the federal District of Columbia (Ex. 2, at p. 1, e.g., persons
engaged in any marijuana activities are violating federal law regardless of state law.)
EXHIBIT 3
Exhibit 3 is a true and correct copy of People v. Hochanadel, 176 Cal.App.4th 997
(2010) (Hochanadel), a California Court of Appeal opinion. Courts may take judicial
1 If collectives were violating state law, the City would have brought criminal charges
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notice of their own files, as well as the files of other courts of competent jurisdiction,
including briefs, pleadings, and rulings. See, e.g., Reyn’s Pasta Bella, LLC v. Visa USA,
Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (taking judicial notice of briefs in another
This office sa\'~s as th..: Cit) '\1I~lrnl.') fllr Ihe City or I.ake Foresl. Lake Fllrcst, locat~d in Orange C\.lllIIl)' , is a Cily or approxillliltdy 75,000 petll'k in roughly lCd, squan: lIIiks, \\\: wrile to infcmn you ur the prcsent silualilln wilh marijuana sales within I.ak..: Forest and the CilY's dliJr\s 10 address Ihal silmlliul1, alld II) seek ynllr assislance in lhe maller. We arc presclltly aware of 12 operating slorc:·fwnt marijuana dispensaries within Ihe City, Of Ihese, eight ~lrc: Im;alcd ill a single cOllllllercial strip I:cntcr Illeal..:d al :::!4602 Raymond Way, Ileaf Inlerslate -tOS al EI Torn R~lild , Wc 1\;1\'1.: rl.'cemly discll\'en:d th .. t Ihese eight. as well ;IS unc uther dispensary loc~ltcJ across thl: street al ~-IfI(JI Raymond Way, arc lucated less than 60() fect from a MUlltess()ri school serving P/'C-SdlOOI and killdcrgflr\(,:n students.
The City of I.ake FUI'I.'SI has hec.:1\ ill\'tlJ\'cd ill k'nglhy ;Inti cxpcnsive litigatioll tu ahate these t1ispen:;aries, \\hil.:h in auuiliun to Ih~'ir Ibgranl violation (.f leJcral n;m:lItics laws, roulinely ereale :;ecolllbry la\\' cntiJrCl'J1h.'llt ;111.1 land lISl' issllcs for the Cily, The City is concerncd thaI Jill.' 10 thc largc mass (If tlll,:se bllSilll:Sscs and Iwhat WI.' be il c\'cl arc th..: huge receipts Ihey llcrivc frolll Ihese il kgal al.:li\-ilil's, the)' \\ j II t'onlillllc to cOlllmit v,lsl resuurces In opposing nul' abalellll'nl d"lims, The Iandlt'l'ds tIl' these husilll'SSCS h.we indicall'd Ihat thcse .:onl i Ill/cd i IIq,!al tellandt.'s are .oj lIsl husi Ilc:;s"
Ihe City ~.r Like hll"l,,'st ' s "nllill;! rcglll ;IIIC1Us dll 11111 pl.'rlll;t marijuana dispensarics: in 1~1~t. Ihe CilY 's :\,1 lin ie.: ipal ('tldc prohihits all~ lise that villl .. l..:s either slate lIr Ii:Jcral law, At't'ordingly , Ihe City has attempted 1~lr lIearl y t\\O years now It) rid the C.lllllllllllily lll' Ihese sltH'l'lroUI dispt'llsarit.'s by hrill~ing Illlis:lncl.'·:lh;Ill'1I11.'Ilt 1;l\\suils ill ~Iale COllrt ulllkr the City's local land-usc allth •• ril~, cllnsistelll \\,ilh C'alililnl ia stak I;tw, I. a ,,,I May \\1.' wen: slIcct.!ssful ill uhlaillin~ Jlrdilllin;II' ~ in,illlll'lillJls a!:!ain~t Iht.' di"pellsaries , Sen,'r:!1 ur the ddi.:nd'lllls arrl!aled. hO\\'I:\I..'r, .lIld 11ll' ('alit'"rnia ('ollrl lit' ' \PPl';d prtllllptly ~taYl'd Ihl' cnli.,recllleill Clf th.lse in,illlll.:titllls , 1"hI.' apl'eal-; h;l\l' y .. ' t III h..: t!I.'(,' lll..-d .111 Iheir 1111,: ' ilS, :lIld Iho.: disp..:no.;:.rks h,,\\..' 1'1\:\.'1\ alhl\\,:d Itl rl.'lIlalll <llk'lI \\ ith impllnil~ "tlll'l.' tll:.1 link' (lthl.'r dd"o.:mbnts !la\''': pUI'pt>rkdly
EX. PG. 2
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:\nure Hiwtlc, Jr. ~·Iay .1. ~()II Page 2
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·'t:!(lscd" their shops, \)nly 10 11:1\e .1 l1lari.illan;1 llisp.,:ns<lry rC ·'.Ip~'n in Ih .... sal1\~' Ille;lIioll undcr alkgedly·\lifkrelll operator" whulhe:n claim 11111 Itl he hound hy Ihl' ~';Irlier inj lllldi(lll.
~' (llS' n:c~'lltly, the Cali fornia Icg.islatllre l'n01l.:ll.:1.I legislat ion efl'ccli\'l' January I. 201 I Ihal prohibits nwrijuana Jispcnsari .... ::; \\ ithin 600 k .... 1 (If sdhlols. \Vh .... n Ihe Ci(~ Jisclln:rco Ihal nin .... of Ihese Jisp~nsarics arc \\ ithin thaI distance of a :;ell(IOI. \ .... 1: againsl sought · and oblained - a tClllpllrary rcslr;lining order fmm Ih .... stale court to dose those dispcn:;aries. 110\\'\:\'er, bdorl! th .... l)edt'r to ::;hl.)\\ calise: rc pn:liminary injullctiOIi ClHild " · .... n bc hcurd (111 Ihat matler, Ihe C'"lilornia Court of Appeal Ollce again stepped in 10 hlock cnlllfce:IIlCIlI of the injullclioll, In shur\. the City has occn SI) l1lied al ~' ... ery 111m in its legal dforlS lu deal with thl..' probh:111 or th~'sl! commercial milrijuan:1 d i spcns:uics.
We an: aware of th~ U.S, DepanlllC'lIt llf Justi l.:e·s pusition, outlined in the :!O1)9 Ogden Memor<lndulIl fcgarding resoun;e·allocation priori tics vis·a-\'i:> scrit1llsly·i II individuals who usc marijll<lIl<l as part uf a mcdic;lIl}'·reC(lI1l111elld~·d lreatment fegilllt."11 ill wlllpli:lIlc .... wilh state law. as well <'IS its policy of continuing III I..'nl~m.:e Ihe CIllllWllcd Substalll:cs Act \';gofllllsly against individuals and organiz..1tions that participate ill unl'l\vful manufacturing alld distrihutiull of marijuana, ev .... n if such activities >Ire pcrmilh:d ulIlkr stille I;IW. We ~trc alsu <I,varc thaI your colll!:tguc! in thc r--;ll/1hl'W District, Ms. Haag, reiterateu in " Fcbru'lrY I. :!O II kiter to lhe Oakland CilY Attorne)' (a copy of which is I!ndoscd hen.: for your rdcrell1.:e) the Justice Department's position thai it will cniixn: the ('SA especially to prohibit the commercial manufacture :md distrihution of lllarijuan;1.
WI! seck yuur oflke:'s assistance in combating the ilkgal stun:·fr01l1 marijuana dispensaries in LIke Forest lhat openly nUll! li.:deral. local. .lIul c\'cn slate law. yct have thus far cffectively cV:lJcd Ihc City'S legal effurts tu duse Ih'::111. We wclwllle the opportunity to mc!!t with you or .mother member of your oflice to d isclIss how we can work logcthl..'r 10 address this.
Enl'i(lsllrc
S!,;l)1I C. Smith kffrey V. DUlin t bl1id Roherls of Ikst Ikst &. f..:.ril'g.,:r I.LP ('it Y:\lIorney ( ' it ) lIfL .. k~ Forl'~1
cc : Ikllll isl' \vil/ett. Chief. Santa ,\11;( Di\'i "idlt Rphert l>ulI~'k, City M;III;tger, Cily of I.:IJ...,: (-'..rl'st
EX. PG. 3
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EXHIBIT 2
EX. PG. 4
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Andr4 BtroueJr. United States Attorney (213) 89~·243~ (telephone) (2 13) 89~·OJ4J (facsimile)
October 7, 2011
Scott C. Smith, Esq. City Attorney City of Lake Forest Best, Best, & Krieger, LLP 5 Park Plaza, Suite 1500 Irvine, California 92614
Dear Mr. Smith:
U. S. Department of Justice
U"ited Slales AI/oriley Celltral Dislr;cl of Califo",;a
Ullited States CorU'thO/lse 3 J 2 North Spring Street Los Angeles. California 90012
O' II.
I write to respond to your earlier letter seeking the assistance of my office with the City of Lake Forest's efforts to combat commercial marijuana stores operating in violation of local ordinances and regulations, and other laws. We have received similar requests from other municipalities throughout the Central District of California (the District). As a result, in conjunction with federal and local law enforcement agencies, we have carefully examined the situation in Lake Forest, and the problem of commercial marijuana operations in the District.
The Department of Justice has stated on many occasions that it is conunitted to the enforcement of the Controlled Substances Act (CSA) in all States, including those like California that have enacted some form of legislation relating to the medical use of marijuana. Congress has dctennined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large scale criminal enterprises, gangs, and drug cartels. While it would not be an efficient or reasonable use of federal resources to focus enforcement efforts on individuals with cancer or other serious illnesses who use drugs as part of a recommended treatment regime consistent with applicable state law or advice from their healtheare professionals, the prosecution of significant traffickers of illegal drugs, including marijuana, remains a core priority of the Department.
Persons who are in the business of cultivating, selling, Or distributin mari'uana and those who knowingly facilitate such activities, are in violation of the CSA re ardless of state law. Such persons are subject to federal criminal and civil enforcement actions. These include, but are not limited to, actions to enforce the criminal provisions of the CSA such as Title 21, United States Code, Section 841, which makes it illegal to manufacture, distribute, or possess with intent to distribute any controlled substance including marijuana; Title 21, United States Code, Section 856, which makes it illegal to knowingly open, lease, rent, maintain, or use property for the
EX. PG. 5
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manufacturing, storing. or distribution of controlled substances including marijuana; and Title 21, United States Code, Section 846. which makes it illegal to conspire to conunit any of the crimes set forth in the CSA. Federal money laundering and related statutes also prohibit a variety of different types of financial activity involving the movement of drug proceeds, and the govenunent may also pursue civil injunctions or the forfeiture of drug proceeds. property traceable to such proceeds, and property used to facilitate drug violations.
In recent years, commercial marijuana operations have proliferated in this District, including in cities like yours that have vigorously opposed them. This expansion has been driven primarily by the profits generated by marijuana sales. The intent behind California's medical marijuana laws may have been a well-meaning desire to help the seriously ill. However, based on federal investigations, discussions with district attorneys, municipalities, and numerous law enforcement agencies, it is clear that, in reality. and in direct violation of these state laws, virtually all the marijuana stores operating in the this District are profit-making enterprises. In addition to the local problems posed by these stores that you have outlined in your letter, marijuana is being illegally grown on public and private lands to support the commercial distribution at stores, causing harm to the environment and surrounding communities. Moreover, marijuana and marijuana profits associated with these operations travel frequently throughout the state and are being moved between California and other states throughout the country.
In response to this problem, my office is working with federal, state, and local law enforcement agencies to make renewed efforts to combat the commercial marijuana industry in your city and throughout the District. In addition to undertaking criminal prosecutions and other enforcement actions, this office is today sending out letters to the property owners and landlords of the marijuana stores in your city and nearby areas. These ielters provide formal notice that the properties in question are being used to possess, distribute. or cultivate marijuana in violation of fcderallaw, and that such activity may subject the property owners to criminal prosecution, fines, and forfeiture of their properties as well as any money they receive from the distribution of marijuana by the stores. At three properties -located in Lake Forest, Wildomar, and Montclairwhere the government believes that the property owners were well aware of the marijuana operations in their properties. my office is filing civil complaints in federal court seeking forfeiture of the properties without a preliminary warning letter. We have also acted with the help of I.R.S. to seize a bank account containing rent money from marijuana stores. These actions are of course only the beginning of what will be on-going efforts to help remove these operations.
In choosing to take theses actions in your city and nearby conununities, we have noted the substantial efforts your city has made on its own to combat commercial operations through both civil and criminal enforcement. The commercial marijuana industry is illegal and subject to federal enforcement wherever it is found. However, given the number of stores and other operations in the District, in considering the efficient expenditure of federal resources, this office will continue to give extra consideration to communities like yours that have made it clear that commercial marijuana operations are unwanted and that have made, and continue to make, all
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reasonable efforts to identify and remove commercial marijuana operations. This office caMot efficiently address this problem alone. We look forward to working together with your city and our federal, state, and local Jaw enforcement partners to uphold the law and help your community.
United States Attorney
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EXHIBIT 3
EX. PG. 8
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Filed 8/18/09
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D054743
Plaintiff and Appellant,
v. (Super. Ct. No. INF056902)
STACY ROBERT HOCHANADEL et al.
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Riverside County, David P.
Downing, Judge. Reversed.
Rod Pacheco, District Attorney, and Jacqueline C. Jackson, Deputy District
Attorney, for Plaintiff and Appellant.
Marylou Hilbert, under appointment by the Court of Appeal, for Defendant and
Respondent Stacy Robert Hochanadel.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Respondent John Reynold Bednar.
EX. PG·9
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Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and
Respondent James Thomas Campbell.
In this case we are presented with two questions regarding the legality of
storefront dispensaries that provide medical marijuana pursuant to the Compassionate
Vse Act (CVA), approved by voters in 1996 under Proposition 215, and its implementing
legislation, the Medical Marijuana Program Act (MMP A).
First, did the MMPA unconstitutionally amend the CVA when it authorized
"cooperatives" and "collectives" to cultivate and distribute medical marijuana?
Second, did the court err in quashing a search warrant for a storefront medical
marijuana dispensary called CannaHelp located in the City of Palm Desert, California,
and dismissing the criminal charges against the defendants Stacy Robert Hochanadel,
James Thomas Campbell and John Reynold Bednar (collectively, defendants), who
operated CannaHelp, based on its findings that (1) CannaHelp was a legal "primary
caregiver" under the CVA and MMPA; and (2) the detective that authored the search
warrant affidavit was not qualified to opine as to the legality of CannaHelp?
We conclude the MMPA's authorization of cooperatives and collectives did not
amend the CVA, but rather was a distinct statutory scheme intended to facilitate the
transfer of medical marijuana to qualified medical marijuana patients under the CVA that
the CVA did not specifically authorize or prohibit. We also conclude that storefront
dispensaries that qualify as "cooperatives" or "collectives" under the CVA and MMPA,
and otherwise comply with those laws, may operate legally, and defendants may have a
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defense at trial to the charges in this case based upon the CUA and MMPA. We further
conclude, however, that the court erred in finding that CannaHelp qualified as a primary
caregiver under the CUA and MMPA and in finding that the detective who authored the
search warrant affidavit was not qualified to opine as to the legality of CannaHelp's
activities. We conclude the facts stated in the search warrant affidavit provided probable
cause the defendants were engaged in criminal activity, and, even if the search warrant
lacked probable cause, the author of the search warrant affidavit acted in reasonable
reliance on its validity. Accordingly, the court erred in quashing the search warrant and
dismissing the charges against defendants. Finally, we conclude that, contrary to the
People's contention, defendants Campbell and Bednar had standing to challenge the
validity of the search warrant.
INTRODUCTION
Based upon evidence obtained from a search pursuant to a court-authorized
warrant, the Riverside County District Attorney's Office charged defendants with
possession of marijuana for sale (Health & Saf. Code, I § 11359: count 1); transportation
of marijuana (§ 11360, subd. (a): count 2); and maintaining a business for the purpose of
selling marijuana (§ 11366: count 3).
Defendants brought a motion to quash the search warrant. The court granted the
motion finding (1) the detective who authored the affidavit in support of the search
warrant was not qualified as an expert on the CUA and MMP A; (2) the dispensary the
1 All further statutory references are to the Health and Safety Code unless otherwise specified.
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defendants operated qualified as a "primary caregiver" under the CUA and thus they did
not violate the law; and (3) the warrant and resulting evidence were therefore illegal. The
court thereafter dismissed the case based upon a lack of evidence.
The People appeal, asserting the court erred in quashing the search warrant
because (1) the MMP A, which implemented the CUA, unconstitutionally amended the
CUA by authorizing marijuana cooperatives as primary caregivers; (2) the defendants'
storefront dispensary did not qualify as a primary caregiver under the MMPA; (3) the
"collective knowledge" doctrine established probable cause for the warrant; (4) the
detective who authored the search warrant provided competent expert evidence to support
a finding of probable cause; (5) the good faith exception to the exclusionary rules applies
even if the search warrant was invalid; and (6) defendants Bednar and Campbell did not
have standing to challenge the search warrant as they were not owners of CannaHelp.
FACTUALANDPROCEDURALBACKGROUND2
A. The Investigation
In October 2005 Hochanadel opened a marijuana dispensary named "Hempies" in
the City of Palm Desert. Hochanadellater changed the name to "CannaHelp."
Hachanadel filed a certificate of use statement with the State of California, identifying it
as a dispensary for medical marijuana. CannaHelp obtained a business license from the
City of Palm Desert to operate a medical marijuana dispensary and operated it in a
transparent fashion. Access to the business was controlled by employees, who allowed
2 Because this matter was dismissed prior to trial, we take the facts from the preliminary hearing transcript and the search warrant affidavit.
4
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customers to enter a room where their medical marijuana prescription was verified. Once
it was verified the customer had a valid prescription, the customer was allowed access to
a second room where various types of marijuana were on display. Employees received
weekly training on the different strains of marijuana and offered advice to patients on
what strains were effective for different ailments. Prior to making a purchase, customers
completed paperwork designating CannaHelp as their primary caregiver. All the patients
of CannaHelp had valid doctor's statements, and CannaHelp contacted authorities when
someone tried to illegally purchase marijuana. CannaHelp operated like any other
business, with financial records, employee records, and policies and procedures.
Campbell and Bednar were the managers and co-owners of CannaHelp. All three
defendants had medical referrals for marijuana and were qualified medical marijuana
patients under the CUA.
Riverside County Sheriffs Detective Robert Garcia investigated CannaHelp.
Under his direction, police conducted surveillance of CannaHelp. They observed a
significant amount of buying activity. The customers were mostly young, without any
observable health conditions. Detective Garcia saw Gary and Krista Silva arrive in a van.
It was determined Gary Silva was a manufacturer and supplier of marijuana to
CannaHelp.
On March 14, 2006, federal agents executed a search warrant at Gary Silva's
home. While executing the search warrant, officers observed a fully operational growing
operation in a sectioned-off portion of the garage, with 69 marijuana plants and growing
equipment. Agents found "numerous" loaded firearms in Silva's residence. They also
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discovered several canisters of dried marijuana for sale, and marijuana on drying racks in
the master bedroom.
Detective Garcia sent an undercover officer into CannaHelp with a manufactured
physician's statement produced by the sheriffs department. That officer was denied entry
when CannaHelp employees could not verify the physician's statement was legitimate.
A second officer then went to a physician in Los Angeles and complained of
chronic back pain. He obtained a statement from that doctor allowing him to purchase
medical marijuana. He presented it to CannaHelp and was allowed to purchase
marijuana. Prior to purchasing the marijuana, he was given advice as to which strain
would be most helpful for his back pain and signed a document designating CannaHelp
as his primary caregiver.
While inside CannaHelp, the undercover agent observed an ATM machine and
three display boards listing prices for different quantities of marijuana. The agent also
observed plastic containers of marijuana inside a glass counter. An employee
recommended a specific type of marijuana for his back pain, and he purchased one ounce
of marijuana for $290. The same agent later conducted another undercover buy, this time
purchasing one-half an ounce for $290.
B. Search Warrant Affidavit
Detective Garcia executed an affidavit in support of a search warrant for
Hochanadel's residences and CannaHelp. Detective Garcia related his experience in
narcotics investigations, noting that he was assigned to the Special Investigations Bureau
charged with narcotics investigations. He stated that during his employment with the
6
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Riverside County Sheriff's Department he "participated in several narcotics training and
education courses dealing with the sales, packaging, recognition, preparation,
paraphernalia, and use of narcotics, dangerous drugs and controlled substances. This
training also included instruction of the types of financial records maintained by
persons(s) who traffic in controlled substances." He also "received approximately 20
hours of instruction on narcotics, dangerous drugs, and controlled substances" while
attending the sheriff's academy. He attended an undercover operations course and a
criminal interdiction course. He also detailed his experience in narcotics arrests and
search warrants, as well as investigations of marijuana grow operations.
The affidavit then detailed the investigation of CannaHelp, discussed, ante. Based
upon that investigation, Detective Garcia concluded that CannaHelp was operating
illegally because it was "selling marijuana, which is a violation of [sections] 11359 and
11360. In California, there is no authority for the existence of storefront marijuana
businesses. The [MMP A] allows patients and primary caregivers to grow and cultivate
marijuana, no one else. A primary caregiver is defined as an 'individual' who has
consistently assumed responsibility for the housing, health or safety of a patient. A
storefront marijuana business cannot, under the law, be a primary caregiver." Detective
Garcia further opined CannaHelp was operating illegally because it was a for-profit
enterprise: "Additionally, given this is a 'cash only' business, the presence of an ATM
machine, high prices charged for small amounts of marijuana, it is also my opinion that
this criminal enterprise is 'for profit' which is outside of any of the guidelines in the
medical marijuana exceptions." Specifically, Detective Garcia opined the price for
7
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marijuana at CannaHelp was approximately twice the price of "mid-grade" marijuana
available on the streets.
Based upon Detective Garcia's affidavit, the court granted the search warrant.
C. Detective Garcia's Preliminary Hearing Testimony
At the preliminary hearing, Detective Garcia admitted he had no formal training in
medical marijuana laws. He was "must given a pamphlet or some paperwork, just given
the laws just to read over."
He further admitted that based upon his review of CannaHelp's financial records, it
was losing money, with annual revenues of $1.7 million, and expenses of $2.6 million,
not including rent, utilities or other expenses. He admitted the business was "upside
down."
D. Motion To Quash
The defendants brought motions to quash the search warrant. Defendants argued
(1) CannaHelp qualified as a primary caregiver under the CUA and MMPA, and
therefore the motion should be quashed based upon a lack of probable cause; and (2) the
search warrant was invalid as Detective Garcia was not qualified to execute it.
After reading the affidavit in support of the search warrant, the transcript of the
preliminary hearing, and the pleadings in the file, the court granted defendants' motion to
quash. The court first determined Detective Garcia was not qualified to author the search
warrant as he had no training or understanding of medical marijuana laws. The court
further found CannaHelp was a valid primary caregiver. In doing so, the court first noted
Detective Garcia was incorrect in his conclusion it was operating at a profit. The court
8
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also noted CannaHelp operated in the open, in compliance with city and state regulations,
and only sold to persons holding legitimate medical marijuana cards. Based upon these
facts, the court found CannaHelp was a "legal primary caregiver" and was in compliance
with the medical marijuana laws. The court thus found there was no probable cause for a
search warrant and granted the motion to quash. The court thereafter dismissed the case
based upon a lack of evidence.
DISCUSSION
I. APPLICABLE AUTHORITY
A. The CUA
The CUA was approved by California voters as Proposition 215 in 1996 and is
codified at section 11362.5. (People v. Trippet (1997) 56 Cal.App.4th 1532, 1546;
People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1436.) Subdivision (d) of section
11362.5 provides: "Section 11357, relating to the possession of marijuana, and Section
11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a
patient's primary caregiver, who possesses or cultivates marijuana for the personal
medical purposes of the patient upon the written or oral recommendation or approval of a
physician." The CUA directed the Legislature to "implement a plan to provide for the
safe and affordable distribution of marijuana to all patients in medical need of
marijuana." (§ 11362.5, subd. (b)(1)(C).)
Under the CUA, a "primary caregiver" is defined as "the individual designated by
the person exempted under this section who has consistently assumed responsibility for
the housing, health, or safety of that person." (§ 11362.5, subd. (e).) The California
9
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Supreme Court has recently held that to be a primary caregiver under this section, an
individual must show that "he or she (1) consistently provided caregiving, (2)
independent of any assistance in taking medical marijuana, (3) at or before the time he or
she assumed responsibility for assisting with medical marijuana." (People v. Mentch
(2008) 45 Ca1.4th 274,283 (Mentch).) The high court in Mentch concluded that a person
does not qualify as a primary caregiver merely by having a patient designate him or her
as such or by the provision of medical marijuana itself. (Id. at pp. 283-285.) Rather, the
person must show "a caretaking relationship directed at the core survival needs of a
seriously ill patient, not just one single pharmaceutical need." (Id. at p. 286.)
B. TheMMPA
In 2003 the Legislature enacted the MMPA, effective January 1,2004, adding
sections 11362.5 through 11362.83 to the Health and Safety Code. (People v. Wright
(2006) 40 Ca1.4th 81, 93.) The express intent of the Legislature was to: "(1) Clarify the
scope of the application of the [CUA] and facilitate the prompt identification of qualified
patients and their designated primary caregivers in order to avoid unnecessary arrest and
prosecution of these individuals and provide needed guidance to law enforcement
officers. [,-r] (2) Promote uniform and consistent application of the [CUA] among the
counties within the state. [,-r] (3) Enhance the access of patients and caregivers to
medical marijuana through collective, cooperative cultivation projects. [,-r] (c) It is also
the intent of the Legislature to address additional issues that were not included within the
[CUA], and that must be resolved in order to promote the fair and orderly implementation
of the [CUA]." (Stats. 2003, ch. 875, § 1, subd. (b)(1)-(3), (c), italics added.) The
10
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legislative history further states, "Nothing in [the MA1P A] shall amend or change
Proposition 215, nor prevent patients from providing a defense under Proposition
215 .... The limits set forth in [the MA1PA] only serve to provide immunity from arrest
for patients taking part in the voluntary ID card program, they do not change Section
11362.5 (Proposition 215) .... " (Sen. Rules Com., Off. of Sen. Floor Analyses, analysis
of Sen. Bill No. 420 (2003 Reg. Sess.) as amended Sept. 9,2003. p. 6, italics added.)
Of relevance to this appeal, the MMPA added section 11362.775, which provides:
"Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357 [possession of marijuana], 11358 [cultivation of marijuana], 11359 [possession for sale], 11360 [transportation], 11366 [maintaining a place for the sale, giving away or use of marijuana], 11366.5 [making available premises for the manufacture, storage or distribution of controlled substances], or 11570 [abatement of nuisance created by premises used for manufacture, storage or distribution of controlled substance]."
The Court of Appeal in People v. Urziceanu (2005) 132 Cal.App.4th 747, 785
(Urziceanu) noted that "[t]his new law represents a dramatic change in the prohibitions
on the use, distribution, and cultivation of marijuana for persons who are qualified
patients or primary caregivers. . . . Its specific itemization of the marijuana sales law
indicates it contemplates the formation and operation of medicinal marijuana
cooperatives that would receive reimbursement for marijuana and the services provided
in conjunction with the provision of that marijuana."
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The MMP A also elaborates on the definition of primary caregiver in the CUA. It
first retains the definition of a primary caregiver contained in the CUA: "the individual,
designated by a qualified patient ... who has consistently assumed responsibility for the
housing, health, or safety of that patient or person .. . . " (§ 11362.7, subd. (d).) The
subdivision goes on to provide three examples of persons who would qualify as primary
caregivers under this definition: (1) Owners and operators of clinics or care facilities; (2)
"An individual who has been designated as a primary caregiver by more than one
qualified patient or person with an identification card, if every qualified patient or person
with an identification card who has designated that individual as a primary caregiver
resides in the same city or county as the primary caregiver"; and (3) "An individual who
has been designated as a primary caregiver by a qualified patient or person with an
identification card who resides in a city or county other than that of the primary
caregiver, if the individual has not been designated as a primary caregiver by any other
qualified patient or person with an identification card." (§ 11362.7, subd. (d)(1-3).)
The MMP A also specifies that collectives, cooperatives or other groups shall not
profit from the sale of marijuana. (§ 11362.765, subd. (a) ["nothing in this section shall
authorize ... any ... group to cultivate or distribute marijuana for profit"].)
C. Attorney General Guidelines
Section 11362.81, subdivision (d) provides: "[T]he Attorney General shall
develop and adopt appropriate guidelines to ensure the security and nondiversion of
marijuana grown for medical use by patients qualified under the [CUA]."
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On August 25, 2008, the California Attorney General issued "Guidelines for the
Security and Non-Diversion of Marijuana Grown for Medical Use" (A.G. Guidelines)
<http://ag. ca. gov I cms _ attachments/press/pdfs/n 1601_ medicalmarijuanaguidelines. pdf>
(as of Aug. 5,2009). The A.G. Guidelines' stated purpose is to "(1) ensure that marijuana
grown for medical purposes remains secure and does not find its way to non-patients or
illicit markets, (2) help law enforcement agencies perform their duties effectively and in
accordance with California law, and (3) help patients and primary caregivers understand
how they may cultivate, transport, possess, and use medical marijuana under California
law." (Id. atp. l.)
Several of the guidelines are helpful to our analysis. First, the A.G. Guidelines
reiterate the "consistency" element of the defmition of primary caregiver contained in
both the CUA and MMPA: "Although a 'primary caregiver who consistently grows and
supplies ... medicinal marijuana for a section 1l362.5 patient is serving a health need of
a patient,' someone who merely maintains a source of marijuana does not automatically
become the party 'who has consistently assumed responsibility for the housing, health, or
safety' of that purchaser." (A.G. Guidelines, p. 4.)
Further, the A.G. Guidelines provide a definition of "cooperatives" and
"collectives." A cooperative "must file articles of incorporation with the state and
conduct its business for the mutual benefit of its members. [Citation.] No business may
call itself a 'cooperative' (or 'co-op') unless it is properly organized and registered as such
a corporation under the Corporations or Food and Agriculture Code. [Citation.]
Cooperative corporations are 'democratically controlled and are not organized to make a
l3
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profit for themselves, as such, or for their members, as such, but primarily for their
members as patrons.' [Citation. ]" (Id. at p. 8.) Further, "[c]ooperatives must follow
strict rules on organization, articles, elections, and distributions of earnings, and must
report individual transactions from individual members each year." (Ibid.)
A collective is " 'a business, farm, etc., jointly owned and operated by the
members of a group.' [Citation.]" (A.G Guidelines, supra, at p. 8.) Thus, "a collective
should be an organization that merely facilitates the collaborative efforts of patient and
caregiver members-including the allocation of costs and revenues." (Ibid.) Further, the
A.G. Guidelines opine, "The collective should not purchase marijuana from, or sell to,
non-members; instead, it should only provide a means for facilitating or coordinating
transactions between members." (Ibid.)
The A. G Guidelines further provide guidelines for the lawful operation of
cooperatives and collectives. They must be nonprofit operations. (A.G. Guidelines,
supra, at p. 9.) They may "acquire marijuana only from their constituent members,
because only marijuana grown by a qualified patient or his or her primary caregiver may
be lawfully transported by, or distributed to, other members of a collective or
cooperative .... Nothing allows marijuana to be purchasedfrom outside the collective
or cooperative for distribution to its members. Instead, the cycle should be a closed
circuit of marijuana cultivation and consumption with no purchases or sales to or from
non-members. To help prevent diversion of medical marijuana to non-medical markets,
collectives and cooperatives should document each member's contribution of labor,
14
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resources, or money to the enterprise. They should also track and record the source of
their marijuana." (Id. at p. 10, italics added.)
Distribution and sales to nonmembers is prohibited: "State law allows primary
caregivers to be reimbursed for certain services (including marijuana cultivation), but
nothing allows individuals or groups to sell or distribute marijuana to non-members.
Accordingly, a collective or cooperative may not distribute medical marijuana to any
person who is not a member in good standing of the organization. A dispensing
collective or cooperative may credit its members for marijuana they provide to the
collective, which it then may allocate to other members. [Citation.] Members may also
reimburse the collective or cooperative for marijuana that has been allocated to them.
Any monetary reimbursement that members provide to the collective or cooperative
should only be an amount necessary to cover overhead costs and operating expenses."
(A.G. Guidelines, supra, at p. 10.)
Finally, the A.G. Guidelines provide guidance to law enforcement as to whether
activities comply with the CUA and MMPA. In this regard, the guidelines specifically
address "Storefront Dispensaries." (A.G. Guidelines, supra, at p. 1l.) The Attorney
General is of the opinion that while "dispensaries, as such, are not recognized under the
law," "a properly organized and operated collective or cooperative that dispenses medical
marijuana through a storefront may be lawful under California law, but [] dispensaries
that do not substantially comply with the guidelines [covering collectives and
cooperatives] are likely operating outside the protections of [the CUA] and the MMP[A],
and [] the individuals operating such entities may be subject to arrest and criminal
15
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prosecution under California law. For example, dispensaries that merely require patients
to complete a form summarily designating the business owner as their primary
caregiver-and then offering marijuana in exchange for cash 'donations'-are likely
unlawful." (A.G. Guidelines, supra, at p. 11, italics added.)
" 'While the Attorney General's views do not bind us [citation], they are entitled to
considerable weight [citation].'" (Freedom Newspapers, Inc. v. Orange County
Employees Retirement System (1993) 6 Cal.4th 821,829.)
II. CONSTITUTIONAL CHALLENGE
The People assert that section 11362.775, which exempts medical marijuana
patients, persons with valid medical marijuana identification cards and their primary
caregivers who form collectives or cooperatives to cultivate marijuana from prosecution
for several drug-related crimes, constituted an unconstitutional amendment of the CUA.
This contention is unavailing.
Article II, section 10, subdivision (c) of the California Constitution prohibits the
Legislature from amending an initiative measure unless the initiative measure itself
authorizes legislative amendment. (Cal. Const., art. II, § 10, subd. (c); People v. Cooper
(2002) 27 Cal.4th 38, 44.) Here, it is undisputed the CUA does not allow legislative
amendments to its provisions. Thus, if the MMP A in any manner amended the CUA, the
amendment would be unconstitutional. (Cooper, supra, 27 Cal.4th at p. 44.) However,
as we shall explain, section 11362.775 does not amend the CUA.
"An amendment is ' ... any change of the scope or effect of an existing statute,
whether by addition, omission, or substitution of provisions, which does not wholly
16
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terminate its existence, whether by an act purporting to amend, repeal, revise, or
supplement, or by an act independent and original in form, ... ' [Citation.] A statute
which adds to or takes away from an existing statute is considered an amendment."
(Franchise Tax Board v. Cory (1978) 80 Cal.App.3d 772, 776; Knight v. Superior Court
(2005) 128 Cal.App.4th 14,22.)
As we recently stated in County of San Diego v. San Diego NORML (2008) 165
Cal.App.4th 798, 829-830 (County of San Diego), "[t]he proscription embodied in article
II, section 1 0, subdivision (c) of the California Constitution is designed to ' "protect the
people's initiative powers by precluding the Legislature from undoing what the people
have done, without the electorate's consent.'" [Citation.] ,[L]egislative enactments
related to the subject of an initiative statute may be allowed' when they involve a 'related
but distinct area' [citation] or relate to a subject of the initiative that the initiative 'does
not specifically authorize or prohibit.' [Citation.]"
In County of San Diego, San Diego and San Bernardino Counties (together, the
Counties) contested the MMP A's requirement that they implement and administer the
identification card system related to qualified patients and primary caregivers. (County of
San Diego, supra, 165 Cal.App.4th at p. 808.) Among other things, the Counties asserted
the MMP A's mandate requiring implementation of an identification card system was an
unconstitutional amendment to the CUA. (Id. at p. 829.) This court held that the MMPA
did not amend the CUA. In doing so, we reasoned that the MMPA did not add to the
CUA as it was a separate legislative scheme, CUA protections remained intact, and the
identification card system did not impact the CUA's protections: "The MMP[A]'s
17
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identification card system, by specifying participation in that system is voluntary and a
person may 'claim the protections of [the CUA]' without possessing a card [ citation],
demonstrates the MMP[ A]'s identification card system is a discrete set of laws designed
to confer distinct protections under California law that the CUA does not provide without
limiting the protections the CUA does provide. For example, unlike the CUA (which did
not immunize medical marijuana users from arrest but instead provided a limited
'immunity' defense to prosecution under state law for cultivation or possession of
marijuana [citation], the MMP[A]'s identification card system is designed to protect
against unnecessary arrest. [Citation.] Additionally, the MMP[A] exempts the bearer of
an identification card (as well as qualified patients as defined by the MMP[AD from
liability for other controlled substance offenses not expressly made available to medical
marijuana users under the CUA." (County o/San Diego, supra, 165 Cal.App.4th at p.
830.)
As we further held, "Here, although the legislation that enacted the MMP[ A]
added statutes regarding California's treatment of those who use medical marijuana or
who aid such users, it did not add statutes or standards to the CUA. Instead, the
MMP[ A]'s identification card is a part of a separate legislative scheme providing separate
protections for persons engaged in the medical marijuana programs, and the MMP[ A]
carefully declared that the protections provided by the CUA were preserved without the
necessity of complying with the identification card provisions. [Citation.] The MMP[A],
in effect, amended provisions of the Health and Safety Code regarding regulation of
drugs adopted by the Legislature, not provisions of the CUA. Because the MMP[A]'s
18
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identification card program has no impact on the protections provided by the CUA, we
reject Counties' claim that those provisions are invalidated by article II, section 10,
subdivision (c), of the California Constitution." (County of San Diego, supra, 165
Cal.App.4th at p. 831.)3
As with the identification card provisions of the MMP A addressed in County of
San Diego, section 11362.775, relating to cooperatives and collectives, did not constitute
an amendment of the CUA as it was not intended to, and did not, alter the rights provided
by the CUA. Rather, it identifies groups that may lawfully distribute medical marijuana
to patients under the CUA. Thus, it was designed to implement, not amend the CUA.
Like the identification card provisions, the defense against arrest and prosecution given to
qualified individuals who establish cooperatives and collectives to deliver medical
marijuana under the CUA "amended provisions of the Health and Safety Code regarding
regulation of drugs adopted by the Legislature, not provisions of the CUA. Because the
MMP A's [cooperative and collective] program has no impact on the protections provided
by the CUA, we reject [the People's] claim that those provisions are invalidated by
Article II, section 10, subdivision (c), of the California Constitution." (County of San
Diego, supra, 165 Cal.App.4th at p. 831.)
3 The California Supreme Court has recently granted review in two cases that held section 11363.77 of the MMPA, which limits the amount of marijuana a qualified patient may legally possess, unconstitutionally amended the CUA because the CUA only stated that qualified patients could possess a "reasonable" amount consistent with a patient's needs. (See People v. Phomphakdy, review granted Oct. 28, 2008, S 166565 & People v. Kelly, review granted Aug. 13,2008, SI64830.) That issue is not before us on this appeal.
19
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Indeed, the CUA itself directed the state to create a statutory plan to provide for
the safe and affordable distribution of medical marijuana to qualified patients.
(§ 11362.5, subd. (b)(l)(C).) Thus, in enacting section 11362.775 the Legislature created
what the CUA expressly contemplated and did not unconstitutionally amend the CUA.
III. MOTION TO QUASH
The People assert the court erred in granting the motion to quash the search
warrant, and in suppressing the evidence seized pursuant thereto, because (1) CannaHelp
did not qualify as a primary caregiver under the CUA; (2) it was not a collective or
cooperative under the CUA; (3) the collective knowledge doctrine rendered Detective
Garcia qualified to author the search warrant affidavit; (4) the good faith exception to the
exclusionary rule applied; and (5) defendants Bednar and Campbell lacked standing to
contest the search warrant as they were only employees of CannaHelp.
We conclude that the court erred in finding that CannaHelp qualified as a primary
caregiver under the CUA and MMPA and in finding that Detective Garcia was not
qualified to author the search warrant affidavit. We further conclude that while those
who operate storefront dispensaries that qualify as true cooperatives or collectives may be
immune from prosecution for the offenses listed in section 11362.775, and defendants
may have a defense at trial to the charges in this case based upon that section of the
MMP A, the facts stated in Officer Garcia's search warrant affidavit provided probable
cause the defendants were engaged in criminal activity. Moreover, to the extent the
search warrant lacked probable cause, the officers executing the search warrant acted in
20
EX. PG. 28
Case 8:12-cv-01345-AG-MLG Document 8 Filed 10/03/12 Page 40 of 109 Page ID #:95
reasonable reliance on its validity. Accordingly, the court erred in quashing the search
warrant and dismissing the charges against defendants.
A. Probable Cause Necessary for Search Warrants
"The Fourth Amendment provides that 'no Warrants shall issue, but upon probable
cause, supported by Oath or Affirmation .... ' California Constitution, article I, section
13, and Penal Code section 813 contain similar provisions. An arrest warrant which is
not supported by a showing of probable cause must fail, and an arrest made pursuant to it
is illegal." (People v. Campa (1984) 36 Cal.3d 870,879.) "In determining the
sufficiency of an affidavit for the issuance of a ... warrant the test of probable cause is
approximately the same as that applicable to an arrest without a warrant. ... namely,
whether the facts contained in the affidavit are such as would lead a man of ordinary
caution or prudence to believe, and conscientiously to entertain, a strong suspicion of the
guilt of the accused." (Skelton v. Superior Court (1969) 1 Cal.3d 144, 150.) Stated
another way, the issuing magistrate's task is to make a practical and commonsense
determination whether, given all the information in the affidavit, "there is a fair
probability that contraband or evidence of a crime will be found in a particular place."
(Illinois v. Gates (1983) 462 U.S. 213,238.)
However, "[ e ]vidence seized pursuant to a warrant unsupported by probable cause
need not necessarily be excluded. The Fourth Amendment exclusionary rule does not bar
the use in the prosecution's case-in-chief of evidence obtained by officers acting in
reasonable reliance on a search warrant issued by a detached and neutral magistrate but
ultimately found to be unsupported by probable cause. [Citations.]" (People v. Lim
21
EX. PG. 29
Case 8:12-cv-01345-AG-MLG Document 8 Filed 10/03/12 Page 41 of 109 Page ID #:96
(2000) 85 Cal.AppAth 1289, 1296 (Lim).) In United States v. Leon (1984) 468 U.S. 897,
the Supreme Court concluded "the marginal or nonexistent benefits produced by
suppressing evidence obtained in objectively reasonable reliance on a subsequently
invalidated search warrant cannot justify the substantial costs of exclusion." (Id. at p.
922.) Accordingly, the court held the exclusionary rule should not be applied when the
officer conducting a search acted in objectively reasonable reliance on a warrant issued
by a detached and neutral magistrate, which warrant is subsequently determined to be
invalid. (Id. at pp. 922-923.) In considering that question, we apply the objective test of
"whether a reasonably well trained officer would have known that the search was illegal
despite the magistrate's authorization." (Id. at p. 922, fn. 23.) Moreover, "the objective
reasonableness of an officer's decision to apply for a warrant must be judged based on the
affidavit and the evidence of probable cause contained therein and known to the officer,
'and without consideration of the fact that the magistrate accepted the affidavit.'
Finally, we resolve doubtful or marginal cases in favor of upholding the search
warrant as it is the duty of a reviewing court "to save the warrant if it can in good
conscience do so .... " (Ca/igari v. Superior Court (1979) 98 Cal.App.3d 725,729-730.)
B. CannaHelp And Its Operators Are Not Primary Caregivers
As discussed, ante, even after the enactment of the MMPA, a primary caregiver is
required to be someone who (1) has been designated as such by one exempted under the
CUA and MMP A; and (2) "has consistently assumed responsibility for the housing,
health, or safety of that patient or person." (§ 11362.7, subd. (d); Mentch, supra, 45
22
EX. PG. 30
Case 8:12-cv-01345-AG-MLG Document 8 Filed 10/03/12 Page 42 of 109 Page ID #:97
Ca1.4th at p. 283; A.G. Guidelines, p. 4.) While the MMPA identifies certain individuals
who can be valid primary caregivers, i.e., persons designated by more than one person,
all of whom reside in the same city or county, the person (or entity) must still meet the
requirement of "consistently" assuming responsibility for the housing, health or safety of
that person. (§ 11362.7, subd. (d); Mentch, supra, at p. 283; A.G. Guidelines, supra, at p.
4.) As our high court recently explained, this entails an "existing, established
relationship," distinct from the provision of medical marijuana itself. (Mentch, supra, at
pp.283-284.) Individuals operating a marijuana-buying cooperative do not, by providing
medical patients with medicinal marijuana, consistently assume responsibility for the
health of those patients. (People ex reI. Lungren v. Peron (1997) 59 Cal.App.4th 1383,
1390; Mentch, supra, 45 Ca1.4th at p. 284 [citing People ex reI. Lungren v. Peron with
approval].)
Thus, a storefront dispensary and its operators do not qualify as primary caregivers
simply because a qualified medical marijuana patient has so designated them. Moreover,
the provision of medical marijuana, even if done on a "consistent" basis, does not make
one a "primary caregiver." There must be evidence of an existing, established
relationship, providing for housing, health or safety "independent of the administration of
medical marijuana." (Mentch, supra, 45 Ca1.4th at p. 284.) There is no evidence
CannaHelp or the defendants had such a relationship with the customers who purchased
medical marijuana from them. A storefront dispensary that merely provides walk-in
customers with medical marijuana does not possess the type of "consistent" relationship
23
EX. PG. 31
Case 8:12-cv-01345-AG-MLG Document 8 Filed 10/03/12 Page 43 of 109 Page ID #:98
necessary to achieve primary caregiver status. Accordingly, the court erred in fmding
CannaHelp qualified as a primary caregiver under the CUA and MMPA.
However, that conclusion does not end our inquiry, as we must analyze whether
other facts show there was probable cause to issue the search warrant. Specifically, we
must examine (1) whether the facts showed defendants were operating CannaHelp as a
cooperative or collective; (2) whether the "good faith" exception to the exclusionary rule
applies; and (3) whether Detective Garcia was qualified to author the search warrant.
C. CannaHelp as Cooperative or Collective
As noted, ante, in enacting section 11362.775, the Legislature "exempted those
qualifying patients and primary caregivers who collectively or cooperatively cultivate
marijuana for medical purposes from criminal sanctions for possession for sale,
transportation or furnishing marijuana, maintaining a location for unlawfully selling,
giving away, or using controlled substances, managing a location for the storage,
distribution of any controlled substance for sale, and the laws declaring the use of
property for these purposes a nuisance. [,-r] ... Its specific itemization of the marijuana
sales law indicates it contemplates the formation and operation of medicinal marijuana
cooperatives that would receive reimbursement for marijuana and the services provided
in conjunction with the provision of that marijuana." (Urziceanu, supra, 132
Cal.App.4th at p. 785, italics added.) Thus cooperatives and collectives operated by
primary caregivers and/or medical marijuana patients may have a defense to certain
narcotics offenses, including those charged against the defendants in this case.
24
EX. PG. 32
Case 8:12-cv-01345-AG-MLG Document 8 Filed 10/03/12 Page 44 of 109 Page ID #:99
In Urziceanu, the defendant was charged with conspiracy to sell marijuana. The
defendant sought to present evidence that he had established a medical marijuana
cooperative called "FloraCare" and could legally distribute marijuana to individuals who
had medical certificates for marijuana. The trial court sustained objections to the
evidence, and the Court of Appeal reversed. In doing so, the court noted "defendant
produced substantial evidence that suggests he would fall within the purview of section
11362.775. He presented the court with evidence that he was a qualified patient, that is,
he had a qualifying medical condition and a recommendation or approval from a
physician. His codefendant ... submitted that same evidence as to herself. Defendant
further presented evidence of the policies and procedures FloraCare used in providing
marijuana for the people who came to him, including the verification of their
prescriptions and identities, the fact that these people paid membership fees and
reimbursed the defendant for costs incurred in the cultivation through donations. Further,
he presented evidence that members volunteered at the cooperative." (Urziceanu, supra,
132 Cal.AppAth at p. 786.) In Urziceanu, the collective operated openly with formal,
documented practices and procedures for signing up and verifying the eligibility of
cooperative members. (Id. at pp. 763-766, 786.)
The Court of Appeal in Urziceanu concluded these facts presented "substantial
evidence that suggests [the defendant] would fall within the purview of section
11362.775." (Urziceanu, supra, 132 Cal.AppAth at p. 786.) Accordingly, the Court of
Appeal reversed, holding the court erred in not allowing the defendant to use section
25
EX. PG. 33
Case 8:12-cv-01345-AG-MLG Document 8 Filed 10/03/12 Page 45 of 109 Page ID #:100
11362.775 as a defense to the charge of conspiracy to sell marijuana. (Urziceanu, supra,
at p. 786.)
Here, however, we are not charged with determining whether the facts are
sufficient to allow defendants to raise section 11362.775 as a defense at trial. Rather, we
must determine if the facts stated in Detective Garcia's search warrant affidavit gave
probable cause to believe defendants were not operating within the confines of the eUA
and MMPA. We conclude that Detective Garcia's search warrant affidavit provided
probable cause defendants were not operating within the law. We further conclude that
even if it did not, a reasonable person would have believed probable cause existed, and
therefore the good faith exception to the exclusionary rule applies.
We find persuasive the A.G. Guidelines' opinion that if a storefront dispensary
managed by primary caregivers or medical marijuana patients is truly operating as a
cooperative or collective, it and its operators might have a defense to arrest and
prosecution under section 11362.775. Nothing in section 11362.775, or any other law,
prohibits cooperatives and collectives from maintaining places of business. If defendants
can produce facts sufficient to show they were operating a true cooperative or collective,
and that they were otherwise in substantial compliance with the eUA and MMPA, they
may be able to raise section 11362.775 as a defense at trial. However, our analysis is
confined to the facts as described in the search warrant affidavit. Those facts and
application of relevant law, including the A.G. Guidelines, provide a reasonable
suspicion to believe defendants were not operating within the eUA and MMP A.
26
EX. PG. 34
Case 8:12-cv-01345-AG-MLG Document 8 Filed 10/03/12 Page 46 of 109 Page ID #:101
First, it appears that purchasers were merely required to "complete a form
summarily designating the business owner as their primary caregiver .... " (A.G.
Guidelines, supra, at p. 11.) There was no evidence purchasers had any other
relationship with CannaHelp or that they were actual members of a cooperative or
collective. These facts are a strong indication of unlawful activity. (Ibid.) Moreover, the
evidence showed at least some of the marijuana CannaHelp offered for sale was
purchased from an outside source, Silva, as opposed to from one or more of its own
members. (Id. at p. 10.) Further, although it was determined after the fact that
CannaHelp was operating at a loss, the large number of transactions, the price of the
marijuana, and the cash-only nature of the business provided reasonable grounds for
Detective Garcia to believe CannaHelp was not operating as a nonprofit enterprise, also a
requirement for operation of cooperatives and collectives. (Id. at p. 9; § 11362.765, subd.
(a).) Thus, even if facts discovered after the warrant was issued showed a lack of
probable cause, Detective Garcia and the executing officers had reasonable grounds to
believe they had probable cause at the time the search warrant issued, and the "good
faith" exception to the exclusionary rule applies. (United States v. Leon, supra, 468 U.S.
at pp. 922-923.)
We express no opinion as to whether defendants were in substantial compliance
with section 11362.775 and the A.G. Guidelines, and whether, as in Urziceanu, there is
sufficient evidence for defendants to raise section 11362.775 as a defense at trial. Rather,
our only task is to determine whether the facts, as known to Detective Garcia at the time
the search warrant issued, demonstrated probable cause to believe defendants were not in
27
EX. PG. 35
Case 8:12-cv-01345-AG-MLG Document 8 Filed 10/03/12 Page 47 of 109 Page ID #:102
compliance with the CUA and MMPA. Because we give great deference to the
magistrate's decision to issue a search warrant (Illinois v. Gates, supra, 462 U.S. at p.
238) and it is our duty "to save the warrant if [we] can in good conscience do so .... "
(Caligari v. Superior Court, supra, 98 Cal.App.3d at pp. 729-730), we conclude the court
erred in quashing the search warrant and dismissing the charges against defendants.
D. Detective Garcia's Qualifications
We also conclude the court erred in concluding Detective Garcia was not qualified
to author the search warrant. The court's conclusion was based upon its belief that, in
opining CannaHelp could not be a primary caregiver, Detective Garcia demonstrated his
misunderstanding of the CUA and the MMPA. However, as we have detailed, ante,
Detective Garcia's conclusion in this regard was correct. Moreover, in the search warrant
he detailed his experience in narcotics investigations and accurately defined the term
"primary caregiver," thus demonstrating a familiarity with the medical marijuana laws.
That experience and knowledge was sufficient to make Detective Garcia competent to
author the search warrant affidavit. (See People v. Superior Court (Moore) (1980) 104
Cal.App.3d 1001, 1010 [officer entitled to consider, in interpreting defendant's telephone
conversation with informant, officer's investigation of informant and experience in
narcotics investigation]; People v. Cleland (1990) 225 Cal.App.3d 388,393 [seizure of
significant amount of marijuana and cash from suspect's person, combined with police
officer's opinion that sellers of marijuana often keep additional contraband at home,
justified issuance of search warrant for residence].)
28
EX. PG. 36
Case 8:12-cv-01345-AG-MLG Document 8 Filed 10/03/12 Page 48 of 109 Page ID #:103
Further, Detective Garcia's erroneous conclusion that store front dispensaries
could never operate legally did not render him incompetent to author the search warrant.
That conclusion was reasonable, given the uncertainties in the law concerning medical
marijuana and the fact that, at that time, there was no California authority expressly
authorizing such operations. The A.G. Guidelines, opining that storefront dispensaries
may be valid under the CUA and MMPA if they qualify as cooperatives or collectives,
were not issued until August of 2008, nearly two years after the investigation and search
warrant affidavit. Thus, given the uncertainties in the law at the time Detective Garcia
authored the search warrant affidavit, lhis erroneous conclusion that storefront I
I dispensaries can never be in compliance with the CUA and MMPAldoes not require an
exclusion of the evidence obtained with the search warrant. (See People v. Garcia (2003)
III Cal.App.4th 715, 724 [reliance on search warrant reasonable where there was no
controlling California authority at the time of the search]; People v. Pressey (2002) 102
Cal.App.4th 1178, 1191 [same].)
In asserting Detective Garcia did not have the experience necessary to author the
search warrant affidavit, defendants (as did the court below) rely on People v. Chakos
(2007) 158 Cal.App.4th 357. In that case, a deputy sheriff testified at trial that marijuana
possessed by an individual with a prescription for medical marijuana was possessed for
sale. (Id. at pp. 361-362.) However, the officer admitted that he had no knowledge of the
CUA and had never before arrested an individual who was a qualified medical marijuana
patient. The Court of Appeal held he therefore did not qualify to testify at trial as an
expert on the subject and reversed the defendant's conviction. (Id. at pp. 365, 367-368.)
29
EX. PG. 37
Case 8:12-cv-01345-AG-MLG Document 8 Filed 10/03/12 Page 49 of 109 Page ID #:104
Here, however, we are not presented with the question of whether Detective
Garcia would have been qualified to testify as an expert witness at trial. Rather, we are
only concerned with his competence to author a search warrant affidavit. Moreover, as
we have explained, his affidavit did show he was familiar with the CUA and MMP A.
Accordingly, Chakos is inapposite.
IV. STANDING
The People contend Campbell and Bednar had no standing to contest the search
warrant because they had no reasonable expectation of privacy as they were only
managers, not owners, of Canna Help. We reject this contention.
To invoke Fourth Amendment protection, an appellant must have both a subjective
and an objectively reasonable expectation of privacy, such that society is prepared to
recognize that expectation as legitimate. (California v. Ciraolo (1986) 476 U.S. 207,
211; Katz v. United States (1967) 389 U.S. 347, 361; People v. Reyes (1998) 19 Cal.4th
743, 75l.) The "reasonableness of a claimed expectation of privacy depends on the
totality of circumstances presented in each case." (In re Baraka H (1992) 6 Cal.App.4th
1039, 1044.) The defendant bears the burden of showing he had a legitimate expectation
of privacy. (People v. McPeters (1992) 2 Cal.4th 1148,1172.)
Contrary to the People's unsupported assertion, Campbell and Bednar were owners
of CannaHelp, each having a 25 percent interest in the operation. Accordingly, they had
standing to contest the search warrant.
30
EX. PG. 38
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DISPOSITION
The judgment is reversed.
NARES,J.
WE CONCUR:
BENKE, Acting P. J.
McINTYRE, J.
31
EX. PG. 39
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EXHIBIT 4
EX. PG. 40
Case 8:12-cv-01345-AG-MLG Document 8 Filed 10/03/12 Page 52 of 109 Page ID #:107
2/25/12 USDOJ: US Attorney's Office - CENTRAL DISTRICT OF CALIFORNIA - 144
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Enforcement Actions Directed At Commercial Marijuana Operations Across Southland Include Criminal Drug Trafficking Case, Property
Forfeiture Lawsuits And Warning Letters To Landlords
FOR IMMEDIATE RELEASE October 7,2011
LOS ANGELES - As part of a coordinated effort by California's four United States Attorneys, federal prosecutors in Los Angeles have taken a series of actions against illegal commercial marijuana operations, including a building in South Orange County that houses eight marijuana stores and a trafficking ring that sold marijuana at its San Fernando Valley storefront, and sent marijuana to customers as far away as New York state.
The coordinated enforcement actions that were announced today address a marijuana industry in California that has swelled to include numerous drug-trafficking enterprises that operate commercial grow operations, intricate distribution systems and hundreds of marijuana stores across the state - even though the federal Controlled Substances Act prohibits the sale and distribution of marijuana.
"It is important to note that for-profit , commercial marijuana operations are illegal not only under federal law, but also under California law," said United States Attorney Andre Birotte Jr. "While California law permits collective cultivation of marijuana in limited circumstances, it does not allow commercial distribution through the store-front model we see across California."
The actions being announced today in the Central District of California include:
a criminal indictment that charges six people with marijuana trafficking that allegedly generated nearly $15 million in profits in only eight months;
the filing of civil forfeiture lawsuits against three properties and a related seizure of more than $135,000 from the bank account of one property owner; and
warning letters sent to the operators and landlords of 38 marijuana stores.
The criminal case unsealed this week names six defendants linked to a now-defunct North Hollywood marijuana store called NoHo Caregivers. The drug trafficking organization - which sold marijuana at NoHo Caregivers, sold marijuana to other stores, and sent marijuana to affiliates in New York and Pennsylvania - distributed approximately 600 to 700 pounds of marijuana per month, according to the indictment.
The defendants used encrypted BlackBerry devices, but investigators were able to intercept email communications that detailed the distribution of marijuana, as well as the payments for the drugs. That indictment details one email exchange between the two lead defendants in which they "discussed the amounts of marijuana they intended to distribute monthly over the coming year and estimated that they would each receive over $194,000 in profits per month."
The defendants named in the NoHo Caregivers indictment are:
PaulA. Montoya, 37, of Arleta, a co-owner ofNoHo, who was arrested on Wednesday;
Noah Joel Kleinman, 36, of Santa Clarita, a co-owner ofNoHo, who has agreed to surrender to federal authorities on Tuesday;
Kathy Thabet, 25, of Los Angeles, a courier and bookkeeper for the organization, who was arrested on
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EX. PG. 41 1/3
Case 8:12-cv-01345-AG-MLG Document 8 Filed 10/03/12 Page 53 of 109 Page ID #:108
2/25/12 USDOJ: US Attorney's Office - CENTRAL DISTRICT OF CALIFORNIA - 144
Wedneday;
James Stanley, 33, of Grass Valley, California, an alleged marijuana grower, who is currently a fugitive;
Bryant Watson, 43, of Douglassville, Pennsylvania, a NoHo customer on the East Coast, who was arrested in Pennsylvania on Wednesday and has agreed to appear in United States District Court in Los Angeles on Tuesday; and
Casey Wheat, 40, of Huntington Beach, who allegedly arranged to transport marijuana for NoHo, who is currently a fugitive.
The indictment alleges drug trafficking violations, as well as money laundering charges. The indictment also seeks the forfeiture of $14.7 million - which is a conservative estimate of the value of the marijuana allegedly trafficked by the organization from the summer of 2008 through the beginning of 2009.
In relation to the NoHo case, federal agents on Wednesday executed a search warrant at NoHo's former location, which is now occupied by a marijuana store called the Green Camel Collective. During the search, agents seized about 231f2 pounds of marijuana and nearly a pound of hashish - and observed two 16-yearold boys who were smoking marijuana inside the store.
"NoHo Caregivers was illegally operating an enormously profitable marijuana store," said Special Agent in Charge Leslie P. DeMarco of IRS-Criminal Investigation's Los Angeles Field Office. "IRS-CI specializes in following the money in illegal drug operations, enabling increased criminal prosecutions and the forfeiture of assets. IRS-CI will continue to work with our law enforcement partners to restore the respect for federal laws that has not been exhibited in the medical marijuana industry during the past several years."
Prosecutors on Thursday filed three forfeiture actions against properties where the owners knowingly allowed marijuana stores to operate. The buildings named in the forfeiture lawsuits house:
the Wildomar Patients Compassionate Group in Wildomar, a city that expressly prohibits marijuana stores and has spent more than $50,000 on legal fees in its efforts to close the store;
Montclair Caregivers in an unincorporated part of Montclair, which has repeatedly received citationsignoring most of them - from San Bernardino County Code Enforcement personnel; and
eight stores located in a two-story strip mall at 26402 Raymond Way in Lake Forest.
The forfeiture complaint relating to the Lake Forest building alleges that eight of 11 suites on the second floor of the building are occupied by marijuana stores, and that a prior owner of the property had previously received a warning letter from the DEA. According to the complaint, the operator of one of the stores at the property has previously been convicted on narcotics-related charges. Records show that the Orange County District Attorney (OCDA) charged three people related to another store on the property in March 2010, and that the OCDA convicted the owner and the manager of another store in the building, both of whom were sentenced to state prison in April 2010 . The property is across the street from a school serving pre-school and kindergarten students. As part of forfeiture efforts, authorities on Wednesday seized $136,686 from a bank account controlled by the owner of the building. The forfeiture lawsuit states that the City of Lake Forest has spent approximately $585,000 in legal fees as part of its efforts to shut down the marijuana stores operating in the building.
In addition to the criminal case and the forfeiture actions, the United States Attorney's Office sent dozens ofletters yesterday to people affiliated with 38 marijuana stores in selected cities across the Southland. Those receiving letters - the owners of the buildings where the stores are allowed to operate, as well as some owners of the illegal stores - are warned that the stores are operating in violation of federal law and that they have two weeks to "take the necessary steps to discontinue the sale and/ or distribution of marijuana" at the stores.
All known marijuana stores in the following areas are being sent letters warning that their operations are in violation of federal law:
Orange County - the cities of Lake Forest, Dana Point, Laguna Hills, Laguna Niguel, and Rancho Santa Margarita;
Riverside County - the cities of Murrieta, Wildomar, and Temecula; and
Inland Empire - the cities of Pomona, Claremont, Upland, Montclair, and Chino.
The letters note that the operation of a marijuana store "may result in criminal prosecution, imprisonment, fines, and forfeiture of assets, including the real property on which the dispensary is operating and any money you receive (or have received) from the dispensary operator."
The areas in which the initial warnings have been sent are all areas where local officials have taken steps to eliminate marijuana stores and have asked the federal government for assistance. The United States Attorney's Office will continue to work with local municipalities and local law enforcement throughout the District to assist in ongoing efforts to combat illegal commercial marijuana operations.
Case 8:12-cv-01345-AG-MLG Document 8 Filed 10/03/12 Page 54 of 109 Page ID #:109
EXHIBIT 5
EX. PG. 43
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About a dozen medi,cal marijuana patients and former collective owners protested the ci,ty's involvement in federal. crackdown 'Outside City Hall Tuesday_
COSTA MESA - Months before federa l authorities shut down dlozens of medical marijuana facilities, the city a.s ked them for help,.
Tan gled in a web of lawsuits with several dispensaries , the City Council an d the city attorney turne d to the Unite d! States Attorney's office , requ estin g fe deral assistance in shutting down 27 known active medical marij uana collectives - which are illegal under city ordinance - according to an Oct . .2.6 letter obtained by the Register.
Kan ciice Hawes , 3.0, director of Orang e County NORML, holds up a Si gn before the start of the Costa Mes a City Coun cil meetin g' on Tues day night. Costa Mes a po lice offi cers informed everyone attending' the coun cil meetin g that signs w ere not allowed in council chambers .
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~.rve believe that by working together with the U.s. Department of Justice w e can eradicate these illegal businesses fro m our ci ty: the letter, signe d by City Attorney Tom Duarte an d sent on behalf of the counCil, state d. -In our opin ion, twenty-seven dispensaries in a 16. 8 square mile area constitute mass cu ltivation an d d'istri bution of marijuana.-
Owners ofth e now-close d mediical marijuana collectives in Costa Mes a have expres se d fru strati on with the City Council for involving fe deral auth oriti es . About a dozen former collective owners an d cannabis p'atients protested b,efore Tu es day's C ity Council meetin g and address ed the council in the meeting's public co mment section .
Among, the speakers was Joyce Weitzberg, a 62-year-old retired nurse an d owner of Nutritional Con cepts Pain Rel eaf Center, who sai d not all medical marijuana store s are create d equal.
In an impassi oned speech , Weitzberg asked the City Council to adopt an emerg'en cy ordinance that would allow two or three collectives to reop'en so local patients coul d get th eir medicine .
We ilzberg, opened her own non-profit collective two years ago after becoming a patient of medical marijuana - a last res ort to manage the pain of her bone an d lung diseases, s he sai d in an interview early this week. She played by all the rules andjump,ed through all the hoops, she sai d. EX. PG. 44
Case 8:12-cv-01345-AG-MLG Document 8 Filed 10/03/12 Page 56 of 109 Page ID #:111
-We've done it 100 p'ercent right an d I'm guilty by association. There's no due process.- We itzberg sajd.
After the collectives were shut down, ru mors in the medical marij uana community swirled that the City Council calle d for both the federal crackdow n an d Sunday's cancellation of local
radio station KOCI LP-FM's ~Cannabis Community" show. Both the station's managem.ent and the city have sai d there was no fe deral or local influence on the decision to cancel the show.
·Cannabis Com munity.- hosted by Ro bert Martinez, a veteran U.S. Army medic an d presi dent of medical marijuana collective Newport Mesa Patients Association , recently broadcast a show from Mayor Gary Monahan's bar, Skosh Monahan's.
During the Jan. 15 show, Monahan j,oined a number of medical cannabis p-roponents in sup'port of reg.ulating the businesses, which are forbidden by fe deral law but allowed by California.
"Irs li ke the wil d, wil d w est out there .- he sai d on the show. "Everybody's doin g: whatever they want to do. You've g.ot some really good dispensaries ; you've got some really bad dlispensaries that are j ust out for a quick buck .... There're a lot of good ones that we want to support."
Cannabis collective owners an d activists questioned the timing of the appearance , but Monahan sai d he dli d not know when fe deral authorities woul d come.
"I'm not happy with what happened.- Monahan sai d in an interview. "I do believe that the diisp·ensaries are what the future is going: to hold an d I would li ke to support them in their efforts to g.et the businesses regulated to some type of stan dard so they can op,erate."
Councilwoman Wen dly Leece said she sup'ports the crackdown, adding the city had too many medical marij.uana: facilities.
"I believe the number of clinics in Costa Mesa has been harmful an d the numb,er has been out of control .she saj d.
The city's letter was sent in response to a Department of Justice announcement in early October that the four California-base d U.s. ,A.ttorneys had begun a statewide enforcement effort targetin Ql the state's comm ercial m a ri ju a n a in du stF1(.
Th e ann ouncement came on the heels of the city of Lake Foresrs publi c call for federal as sistan ce in shuttin g dlown a number of med'ical marij uana d'isp,ensaries in May 2011 .
Costa Mesa's letter noted the high cost offighting dispensaries in court an d rising' co mplaints from residents an d business owners , who were especially concerne d thatthe dlisp,ensaries w ere deterring potential custo mers.
The city has spent $457,612 in legal cases involving, marijuana dispensaries as of Jan. 31 , city spokesman Bill Lobdell sai d.
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EXHIBIT 6
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elcome to the online source for the istrict of Columbia Official Code
DC ST § 7-1671.05 § 7-1671.05. Medical marijuana program.
District of Columbia Official Code 2001 Edition Currentness Division 1. Government of District.
Title 7. Human Health Care and Safety. (Refs & Annos) Subtitle G-li. Use of Marijuana for Medical Treatment.
Chapter 16B. Use of Marijuana for Medical Treatment . ... § 7-1671.05. Medical marijuana program.
There is established a medical marijuana program, which shall regulate the manufacture, cultivation, distribution, dispensing, purchase, delivery, sale, possession, and administration of medical marijuana and the manufacture, possession, purchase, sale, and use of paraphernalia. The Program shall be administered by the Mayor and shall:
(l)(A) Require the registration with the Department of all: (i) Qualifying patients; and (ii) Caregivers; and
(B) As part of the registration process, require a qualifying patient to: (i) Designate the dispensary from which the qualifying patient will receive medical marijuana; provided, that the qualifying patient may change the designation with 14 days written notice to the Department; and (ii) Provide a copy of the physician's recommendation for the qualifying patient's use of medical marijuana;
(2) Require the registration of all: (A) Dispensaries; (B) Cultivation centers; and (C) Directors, officers, members, incorporators, agents, and employees of dispensaries and cultivation centers;
(3) Issue nontransferable registration identification cards that expire annually to registered persons and entities, which may be presented to and used by law enforcement to confirm whether a person or entity is authorized to administer, cultivate, dispense, distribute, or possess medical marijuana, or manufacture, possess, or distribute paraphernalia; (4) Require all dispensaries and cultivation centers to:
(A) Maintain true, complete, and current records of the following: (i) The name, address, home telephone number, and date of birth of each employee; (ii) A record of each transaction, including:
(I) The quantity of medical marijuana distributed or dispensed; (II) The co ns ide ratio n give n fo r the med ica I ma rijua na; and (III) The recipient of the medical marijuana;
(iii) The quantity of medical marijuana at the dispensary or cultivation center; (iv) The disposal method used for any medical marijuana that was cultivated or acquired but not sold, including evidence of the disposal of the medical marijuana; and (v) Any other information required by the Mayor;
(B) Notify the Chief of the Metropolitan Police Department in writing and immediately of the loss, theft, or destruction of any medical marijuana;
(5) Require all dispensaries to maintain true, complete, and current records of: (A) The name and address of the qualifying patient authorized to obtain the distribution or dispensing of medica I ma rijua na; and (B) The name and address of the caregiver who receives the medical marijuana;
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3/25/2011 District of Columbia Official Code (6) Develop educational materials about potential harmful drug interactions that could occur from using medical marijuana concurrently with other medical treatments and the importance of informing health care providers and pharmacists of the use of medical marijuana to help avoid harmful drug interactions; (7) Revoke or suspend the registration of any person or entity if the Mayor determines that the person or entity has violated a provision of this chapter or the rules issued pursuant to § 7-1671.13; (8) Conduct announced and unannounced inspections of dispensaries and cultivation centers; (9) Establish sliding-scale registration and annual renewal fees for all persons and entities required to register pursuant to this chapter; provided, that the registration and annual renewal fees for dispensaries and cultivation centers and for the directors, officers, members, incorporators, agents, and employees of dispensaries and cultivation centers shall be sufficient to offset the costs of administering this chapter; (10) Establish a system to provide for the safe and affordable dispensing of medical marijuana to qualifying patients who are unable to afford a sufficient supply of medical marijuana based upon the qualifying patient's income and existing financial resources that :
(A) Allows qualifying patients to apply to the Mayor to be eligible to purchase medical marijuana on a sliding scale from dispensaries; and (B) Requires each dispensary to devote a percentage of its gross revenue, as determined by the Mayor, to providing medical marijuana on the sliding scale to qualifying patients determined eligible pursuant to subparagraph (A) of this paragraph;
(11) Submit to the Council an annual report that does not disclose any identifying information about qualifying patients, caregivers, or physicians, but that includes:
(A) The number of applications filed for a registration identification card; (B) The n u mbe r of qua lifying patie nts and ca reg ive rs reg iste red; (C) The qualifying medical condition or qualifying medical treatment for each qualifying patient; (D) The number of registration identification cards suspended and the number revoked; and (E) The number of physicians providing written recommendations for qualifying patients;
(12) Establish standards by which applicants for dispensary and cultivation center registration will be evaluated to determine which applicants will be accepted for registration and renewal of registration, which shall include the following factors:
(A) Knowledge of District and federal law relating to marijuana; (B) Suitability of the proposed facility; (C) A proposed staffing plan; (D) A security plan that has been assessed by the Metropolitan Police Department; (E) A cultivation plan; and (F) A product safety and labeling plan;
(13)(A) Provide notice through the mail to all Advisory Neighborhood Commissions in the affected ward at least 30 days prior to approval of a location for a dispensary or cultivation center; and
(B) Accord great weight to input provided by the Advisory Neighborhood Commission regarding the proposed location of a dispensary or cultivation center when approving or rejecting an application for registration; and
(14) Require caregivers and qualifying patients to notify the Department immediately and in writing of the loss, theft, or destruction of a registration identification card.
CREDIT(S)
(Feb. 25, 2010, D.C. Law 13-315, § 6, as added July 27,2010, D.C. Law 18-210, § 2,57 DCR 4798.)
elcome to the online source for the istrict of Columbia Official Code
DC ST § 7-1671.06 § 7-1671.06. Dispensaries and cultivation centers.
Term Best Section DC ST § 7-1671.06
District of Columbia Official Code 2001 Edition Currentness Division 1. Government of District.
Title 7. Human Health Care and Safety. (Refs & Annos) Subtitle G-li. Use of Marijuana for Medical Treatment.
Chapter 16B. Use of Marijuana for Medical Treatment . ... § 7-1671.06. Dispensaries and cultivation centers.
(a) Notwithstanding any other District law, a dispensary may possess medical marijuana for the purpose of dispensing the medical marijuana to a qualifying patient or caregiver and may manufacture, purchase, possess, distribute, and use paraphernalia, in accordance with this chapter and the rules issued pursuant to § 7-1671.13.
(b) Notwithstanding any other District law, a cultivation center may cultivate and possess medical marijuana for the purpose of distribution to a dispensary and may manufacture, purchase, possess, and use paraphernalia in accordance with this chapter and the rules issued pursuant to § 7-1671.13.
(c) A dispensary may dispense medical marijuana and distribute paraphernalia to a qualifying patient or the qualifying patient's caregiver, and a qualifying patient or the qualifying patient's caregiver may obtain medical marijuana and paraphernalia from a dispensary, only if the qualifying patient is registered to receive medical marijuana from that dispensary.
(d)(l) Each dispensary and cultivation center shall be registered with the Mayor prior to manufacturing, cultivating, dispensing, possessing, or distributing medical marijuana, or manufacturing, possessing, using, or distributing paraphernalia.
(2) No more than 5 dispensaries shall be registered to operate in the District; provided, that the Mayor may increase the number to as many as 8 by rulemaking to ensure that qualifying patients have adequate access to medical marijuana. (3) The number of cultivation centers that may be registered to operate in the District shall be determined by rule making.
(e)(l) A dispensary may not dispense more than 2 ounces of medical marijuana in a 30-day period to a qualifying patient, either directly or through the qualifying patient's caregiver; provided, that the Mayor, through rulemaking, may increase the quantity of medical marijuana that may be dispensed to up to 4 ounces.
(2) A cultivation center shall not possess more than 95 living marijuana plants at any time. (3) It shall be unlawful for a dispensary to dispense or possess more than the quantity of medical marijuana needed to support the number of qualifying patients or caregivers registered to receive medical marijuana at that dispensary, as determined by the Mayor pursuant to rules issued under § 7-1671.13; provided, that the Mayor may allow a dispensary to possess a higher quantity of medical marijuana in anticipation of additional qualifying patients or caregivers registering.
(f) No marijuana or paraphernalia at a dispensary or a cultivation center shall be visible fr~sr. ~'G~ e~ bliC or
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3/25/2011 District of Columbia Official Code othe r pro pe rty.
(g) A dispensary or cultivation center shall not locate within any residential district or within 300 feet of a preschool, primary or secondary school, or recreation center.
(h) Each dispensary and cultivation center shall:
(1) Be either a for-profit or nonprofit corporation incorporated within the District; (2) Implement a security plan to prevent the theft or diversion of medical marijuana, including maintaining all medical marijuana in a secure, locked room that is accessible only by authorized persons; and (3) Ensure that all of its employees receive training on compliance with District law, medical marijuana use, security, and theft prevention.
(i) Each dispensary shall regularly distribute to all qualifying patients and caregivers the educational materials regarding potential harmful drug interactions developed as part of the Program.
(j) No director, officer, member, incorporator, agent, or employee of a dispensary or cultivation center who has access to the medical marijuana at the dispensary or cultivation center shall have:
(1) A felony conviction; or (2) A misdemeanor conviction for a drug-related offense.
(k) A person found to have violated any provision in this chapter shall not be a director, officer, member, incorporator, agent, or employee of a dispensary or cultivation center, and the registration identification card of the person shall be immediately revoked and the registration of the dispensary or cultivation center shall be suspended until the person is no longer a director, officer, member, incorporator, agent, or employee of the dispensary or cultivation center.
CREDIT(S)
(Feb. 25, 2010, D.C. Law 13-315, § 7, as added July 27,2010, D.C. Law 18-210, § 2,57 DCR 4798.)
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EXHIBIT 7
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AUTHENT1CATE
9 u.s. GOVERNMENT 1NFORMAT10N
GPO
lllTH CONGRESS} { 1st Session HOUSE OF REPRESENTATIVES
REPORT
111-202
FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS BILL, 2010
JULY 10, 2009.-Committed to the Committee of the Whole House on the State of the Union and ordered to be printed
Mr. SERRANO, from the Committee on Appropriations, submitted the following
REPORT
together with
MINORITY VIEWS
[To accompany H.R. 3170]
The Committee on Appropriations submits the following report in explanation of the accompanying bill making appropriations for financial services and general government for the fiscal year ending September 30, 2010.
INDEX TO BILL AND REPORT
Introduction ............................................................................................... . Major priorities ........ .. ..... ........ .... .. .................... ........ .. .. ... .... ................... ... . Terminations, reductions, and other savings ................ ...... ....... ...... ...... . . Operating plan and reprogramming procedures ....... ... .......... ... ....... ... ... . Program, project, and activity .................................................................. . Title I-Department of the Treasury ...... ..... ... ................ ... .. ..... ........ ..... . . Title II-Executive Office of the President and Funds Appropriated to
the President .......................................................................................... . Title III-The Judiciary .. ....... .. .. .. ....... .. .... .. ..................... ...... .. ... .. .... .. ..... . . Title IV-District of Columbia .. .. ....... ............. ........ .. .. ... .... .... ... ............ ... . Title V-Independent Agencies ................................................................ .
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8
ing for new IRS agents to target wealthy individuals and businesses who seek to avoid U.S. taxes by parking money overseas.
At the same time, the bill ensures an adequate level of funding for IRS Taxpayer Services to ensure that taxpayers are able to receive assistance from the IRS-in person, over the phone, or on the IRS web site-when filling out tax forms and filing returns. The bill continues funding for Tax Counseling for the Elderly sites and provides increases above the request for the IRS Taxpayer Advocate Service, grants to low-income taxpayer clinics, and community volunteer income tax assistance grants.
MEETING RESPONSIBILITIES TO THE NATION'S CAPITAL CITY
The Financial Services and General Government bill also makes appropriations for the District of Columbia. The city and its citizens bear a number of additional burdens-as well as enjoying benefits-because of Washington's role as the Nation's capital, and this bill provides modest assistance to the District in recognition of that role. Among other things, the measure continues special assistance to improve education in both public and charter schools in the District, and also adopts the President's proposal for a limited continuation of the school voucher program to avoid disrupting the education of students currently in the program. While reducing or eliminating some payments to the District, the Committee also provides new payments to address certain high-priority needs: aiding the homeless, helping youth disconnected from school or work, and slowing the spread of HIV/AIDS.
The bill also takes further steps towards reducing undue congressional interference in local affairs and eliminating restrictions on the District that do not apply to other parts of the Nation. As requested by the President, the bill eliminates the prohibition on use of locally raised funds for abortion-thereby placing the District in the same position as each of the 50 states in that regard. The measure also eliminates a ban on use of funds for domestic partnership registration and benefits and a ban on use of funds for needle exchange programs, and allows the District to conduct and implement a referendum on use of marijuana for medical purposes, as has been done in various states.
TERMINATIONS, REDUCTIONS AND OTHER SAVINGS
In order to invest in the critical priorities identified in this bill, and in an effort to build an economy on a solid foundation for growth and put the Nation on a path toward prosperity, the Committee has proposed herein a number of program terminations, reductions, and other savings from the fiscal year 2009 level totaling $599 million. In addition, $425 million in other program terminations, reductions, and other savings from the budget request are recommended. These adjustments, no matter their size, are important to setting the right priorities within the spending allocation, for getting the deficit under control, and creating a government that is as efficient as it is effective.
OPERATING PLAN AND REPROGRAMMING PROCEDURES
The Committee will continue to evaluate reprogrammings proposed by agencies. Although reprogrammings may not change ei-
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107
Section 807. The Committee continues the provision prohibiting the use of Federal funds to provide salaries or other costs associated with the offices of United States Senator or Representative.
Section 808. The Committee continues the provision that restricts the use of official vehicles to official duties and not between a residence and workplace, with certain exceptions.
Section 809. The Committee continues the provision that prohibits the use of Federal funds by the Attorney General of the District or any other officer or entity of the District government to provide assistance for any petition drive or civil action which seeks to require Congress to provide for voting representation in Congress for the District of Columbia.
Section 810. The Committee continues the provision that includes a "conscience clause" on legislation that pertains to contraceptive coverage by health insurance plans.
Section 811. The Committee modifies the provision relating to medical marijuana so that it prohibits only the use of Federal funds and does not continue to suspend implementation of the Legalization of Marijuana for Medical Treatment Initiative of 1998.
Section 812. The Committee modifies the provision prohibiting use of funds for abortion so that it applies only to Federal and not local funds.
Section 813. The Committee adds a new provision at the request of the District of Columbia requiring the CFO to submit a revised operating budget for all agencies in the D.C. government, no later than 30 calendar days after the enactment of this Act that realigns budgeted data with anticipated actual expenditures.
Section 814. The Committee adds a new provision at the request of the District of Columbia requiring the CFO to submit a revised operating budget for D.C. Public Schools, no later than 30 calendar days after the enactment of this Act that realigns school budgets to actual school enrollment.
Section 815. The Committee continues the provision authorizing the transfer of local funds to capital and enterprise funds.
Section 816. The Committee includes a provision to limit the geographic location of needle exchange programs in the District of Columbia.
Section 817. The Committee continues the provision which limits references to "this Act" as referring to only this title and title IV.
The Committee has not continued the prohibitions on use of Federal funds for implementation of D.C. employee health benefits for domestic partners or any system of domestic partnership registration.
The Committee notes that the following sections of title VIII of the Financial Services and General Government Appropriations Act, 2009 made permanent changes in law and therefore are not repeated in this year's bill: Sections 808, 814, 816, 817, 818, 822, and 823.
HOUSE OF REPRESENTATIVES REPORT REQUIREMENTS
The following items are included in accordance with various requirements of the Rules of the House of Representatives.
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MINORITY VIEWS OF THE HONORABLE JERRY LEWIS AND THE HONORABLE JO ANN EMERSON
The Subcommittee has jurisdiction over a diverse group of agencies which perform activities such as regulating the financial and telecommunications industries; collecting taxes and providing taxpayer assistance; supporting the operations of the White House, the Federal Judiciary, and the District of Columbia; managing Federal buildings; and overseeing the Federal workforce. With the 302(b) allocation provided to Chairman Serrano, he has done an outstanding job in distributing funds to the various agencies in the bill.
FISCAL SUSTAINABILITY
However, the $24.15 billion allocation provided to the Subcommittee is much too large. It is a 7 percent or $1.6 billion increase above the current year, excluding stimulus funding. This is a very generous allocation which allows most agencies in the bill to be funded at or above the rate of inflation. We believe the resource requirements of the agencies funded in this bill can be met with a smaller allocation, especially given the Federal government's financial situation.
Recently, Federal Reserve Chairman Bernanke stated "unless we demonstrate a strong commitment to fiscal sustain ability in the longer term, we will have neither financial stability nor healthy economic growth." In a June report on the Long-Term Budget Outlook, the Congressional Budget Office stated that "Under current law, the federal budget is on an unsustainable path-meaning that federal debt will continue to grow much faster than the economy over the long run." The Administration's own budget documents state that the Federal debt held by the public will be 68.5 percent of Gross Domestic Product by 2014. This is the highest percentage of Federal debt to GDP since 1950.
Providing a 7 percent increase in funding for a bill that primarily funds general government agency operating accounts, not programs or grants, does not represent a commitment to fiscal sustainability. Growing the Federal bureaucracy will not stimulate the economy. However, it will increase Federal borrowing-increasing interest rates, slowing our recovery, and increasing the financial burden placed on our children and grandchildren.
TERMINATIONS AND REDUCTIONS
Materials posted to the Committee website by the Majority suggest that the bill saves $599 million from the fiscal year 2009 enacted bill and $425 million from the fiscal year 2010 budget request through program terminations and reductions. However, it must be pointed out that these are not true savings. The bill provides a $1.6 billion increase over fiscal year 2009 level, excluding supplemental
(173)
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176
OPPORTUNITY SCHOLARSHIPS
Unfortunately, the Obama Administration's request and this bill include language to slowly phase out the District of Columbia (DC) Opportunity Scholarship Program (OSP) and reduce academic choice for low-income DC residents. Specifically, the bill only allows students currently participating in the program to continue to receive a scholarship. How does a parent explain how one child is able to go to the school of their choice while their other children must go to a failing public school, especially when we know the DC public schools are still struggling to reform?
In May, Chancellor Rhee stated "The reality in Washington, D.C., is that we continue to fail the majority of kids who are put in our care everyday." According to the Washington Post, 90 of the 123 public schools in the District are under some form of Federal notice to improve under the No Child Left Behind Law and less than 60 percent of DC high school students graduate in 4 years. More than 7,400 DC residents signed a petition asking for the Opportunity Scholarship program to be reauthorized. At the Financial Services and General Government Subcommittee hearing on DC, the Mayor and the Council Chairman both stated they would consider adding siblings to the program.
Unfortunately, despite the facts that DC public schools are underperforming and DC residents support the program, Republican amendments in Committee to expand the number of low-income students eligible to participate in the program were defeated.
DISTRICT OF COLUMBIA RIDERS
Another area of the bill that deeply concerns us is controversial changes to long-standing general provisions regarding the District of Columbia. We strongly oppose these changes. We do not believe increasing the availability of abortions or medical marijuana will improve the District of Columbia.
REGULAR ORDER
While we have been pleased to have a wonderful working relationship this year with Chairman Serrano, we are disappointed that the bipartisanship at the Subcommittee level is not continuing through the rest of the appropriations process.
We recognize that operating under an open rule during floor consideration of appropriations bills is grueling, long, and hard work. But that is democracy. That is regular order. And, we urge our colleagues to support a return to a process where every Member has an opportunity to have their voice heard.
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176
This year the Financial Services and General Government appropriations bill is very controversial. Not only does the proposed bill spend more than $24 billion but it proposes to change long-standing policies on issues such as abortion and medical marijuana. It is the responsibility of this Committee and this Congress to allow each Member of the House of Representatives to improve or alter the bill in a way that allows them to explain their vote at home. We urge our colleagues in the Majority to return to regular order during floor consideration.
JERRY LEWIS. Jo ANN EMERSON.
o
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EXHIBIT 8
EX. PG. 58
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Nutritional Concepts 660 Baker St., #217 Costa Mesa, CA 92626
U. S. Department of Justice
United States Attorney Central District of California us. Courthouse, 1 iii Floor 312 North Spring Street Los Angeles, California 90012
January 18,2012
Re: j\,farijuana Dispensary Operating at 660 Baker St., #21 7, Costa IvJesa, CA 92626
Dear Nutritional Concepts:
This office has been advised by the Drug Enforcement Administration (DEA) that there is (or recently was) a marijuana dispensary operating under the name "Nutritional Concepts" at the real property located at 660 Baker St., #217, Costa Mesa, CA 92626, which property you own or have under your management or control. This letter serves as formal notice to you that the marijuana dispensary ' s operations violate United States law and that the violations of United States law relating to the marijuana dispensary's operations on your property may result in criminal prosecution, imprisonment, fines, and forfeiture of assets, including the real property on which the dispensary is operating and any money you receive (or have received) from the dispensary operator.
Under United States law a dispensary's operations involving sales and distribution of marijuana are illegal and subject to criminal prosecution and civil enforcement actions. Property involved in such operations, including real property, is subject to seizure by and forfeiture to the United States. These penalties and remedies apply regardless of the purported purpose of the dispensary or the uses for which marijuana is purportedly sold and distributed. Specifically, Title 21 , United States-Code, Se.ctiDn 856(a) provides :
It shall be unlawful to knowingly and intentionally rent, lease, or make available for use, with or without compensation, [a] building, room, or enclosure for the purpose of unlawfully manufacturing, storing, distributing or using a controlled substance.
Section 881(a)(7) of Title 21 provides:
The following shall be subject to forfeitllre to the United States and no property right shall exist in them: All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land which is
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used in any manner or part, to commit, or to facilitate the commission of, a violation of this sub-chapter.
United States law takes precedence over State law and applies regardless of the particular uses for which a dispensary is selling and distributing marijuana. Accordingly, it is not a defense to either the referenced crime or to the forfeiture of property that the dispensary is providing "medical marijuana." Even under these circumstances, an owner of real propelty with knowledge or reason to know of illegal marijuana distribution occurring on real property that he owns or controls may have his interest in the property forfeited to the government without compensation.
As noted above, this letter is formal notification to you that the DEA has determined there is (or recently was) a marijuana dispensary operating on the above described property. You are further advised that the violations of federal law relating to the marijuana dispensary operating on your property may result in criminal prosecution, imprisonment, fines and forfeiture of assets, including the real property on which the dispensary is operating. Any money you receive (or have received) from the dispensary operator may also be subject to seizure and forfeiture. Your prompt attention to this matter is strongly advised. Please take the necessary steps to discontinue the sale and/or distribution of marijuana at the above-referenced location within 14 days of this letter.
You may wish to seek independent legal advice concerning this matter. Please direct any inquiries to Claire Charron at (213) 894-0496. You may also submit e-mail inquiries to [email protected].
Regards,
ANDRE BIROTTE JR. Uniter tates Attorney
STEV~N~K~ Assistant U.S. Attorney Chief, Asset Forfeiture Section
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EXHIBIT 9
EX.PG.61
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Chairman Vincent C. Gray Councilmember David A. Catania
Councilmember Phil Mendelson
A BILL
IN THE COUNCIL OF THE DISTRICT OF COLUMBIA
1 2
3 4
5
6
7
8
Chairman Gray, and Councilmembers Catania and Mendelson introduced the following bill, 9 which was referred to the Committee on 10
To amend the Legalization of Marijuana for Medical Treatment Initiative of 1998 to define key 11 terms; to limit the use of marijuana for medicinal purposes to qualifying patients; to 12 require written recommendation from one's primary physician as a condition for the 13 medicinal use of marijuana; to clarify who may lawfully manufacture, possess, distribute, 14 or use marijuana; to clarify how a primary caregiver may be designated; to limit the 15 distribution of marijuana for medicinal purposes to registered dispensaries; to require the 16 parent or guardian of a minor that is using marijuana for medicinal purposes to control the 17 minor's use; and to require the Mayor to issue rules to regulate the manufacture, 18 possession, distribution, and use of marijuana for medicinal purposes. 19
BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this 20
act may be cited as the "Legalization of Marijuana for Medical Treatment Initiative Amendment 21
Act of2010". 22
Sec. 2. The Legalization of Marijuana for Medical Treatment Initiative of 1998, 23
transmitted on December 21,2009 (D.C. Act 13-138) is amended as follows: 24
(a) A new Section 2a is added to read as follows: 25
1
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"Sec. 2a. Definitions. 1
"For purposes of this act, the term: 2
"( 1) "Department" means Department of Health for the District of Columbia. 3
"(2) "Medical supply" means the quantity of marijuana that is determined pursuant to 4
section 1O( a)(1 )(E) of this act. 5
"(3) "Primary physician" means a physician who maintains in good standing a license to 6
practice medicine in the District of Columbia who has primary responsibility for the care and 7
treatment of the qualifying patient. 8
"( 4) "Qualifying patient" means a person who is registered by the Department of Health 9
pursuant section lO(a)(1)(A)(i) of this act.". 10
(b) Section 2 is amended to read as follows: 11
"Sec. 2. Permissible Use of Marijuana for Medicinal Purposes. 12
"All qualifying patients have the right to obtain and use marijuana for medical purposes 13
when his or her primary physician has provided a written recommendation that bears his or her 14
signature and license number asserting that the use of marijuana to be medically necessary for the 15
patient for the treatment of a qualifying medical condition or to mitigate the side effects of a 16
qualifying medical treatment.". 17
(c) Section 3 is amended to read as follows: 18
"Sec. 3. Exemption to the Uniform Controlled Substances Act, Defenses. 19
"(a) Qualifying patients who use marijuana for medicinal purposes; primary caregivers 20
who obtain marijuana for such patients; and other person authorized to manufacture, possess, and 21
distribute marijuana for medical purposes by this act do not violate the District of Columbia 22
2
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Uniform Controlled Substances Act of 1981, effective August 5,1981 (DC Law 4-29; DC Code 1
33-501 et seq.) ("Controlled Substances Act") and are not subject to criminal prosecution or 2
sanction, provided that they are in compliance with this act and the rules created under this act. 3
"(b) The use of marijuana under the authority of this act shall not be a defense to any crime 4
of violence, the crime of operating a motor vehicle while impaired or intoxicated, or a crime 5
involving danger to another person or to the public, nor shall such use negate the mens rea for any 6
offense. 7
"( c) Whoever distributes marijuana cultivated, distributed or intended to be distributed or 8
used pursuant to this act to any person not entitled to possess or distribute marijuana under this act 9
shall be guilty of a crime and subject to the penalty set forth in section 40 1 (a)(2)(D) of the 10
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~ HumanlClinical Studies
~ Adverse Effects
~ OVerall Level of Evidence for Cannabis and Cannabinoids
~ Changes to This Summary (03/17/2011 )
~ More Information
~ About This P~Q Summary
I D:::I no. nnti",n c::
~ US Atty letter re Oakl""pdf
last Modified: 03/17/2011
General Information
Cannabis, also known as marijuana originated in Central Asia but is grown worldwide today. In the United States, it is a controlled substance and is classified as a Schedule I agent (a QlliQ. with increased potential for abuse and no known medical use). The Cannabis plant produces a resin containing psychoactive compounds called cannabinoids. The highest concentration of cannabinoids is found in the female ftow ers of the planl.WAs a botanical Cannabis is difficult to study because of the lack of standardization of the botanical product due to the many climates and environments in which it is grow n. Clinical trials conducted on medicinal Cannabis are limited.
The potential benefits of medicinal Cannabis for people living with cancer include antiemetic effects, appetite stimulation, pain relief, and improved sleep. In the practice of integrative oncology the health care provider may recommend medicinal Cannabis not only for symptom management but also for its possible direct antitumor effect.
Cannabinoids are a group ofterpenophenolic compounds found in Cannabis species (Cannabis sativa L. and Cannabis indica Lam.). This summary will revi ew the role of Cannabis and the cannabinoids in the treatment of people with cancer an d disease-related or treatment-related side effects .
References
1. Adams IB, Martin BR: Cannabis: pharmacology and toxicology in animals and humans. Addiction 91 (11 ): 1585-61 4, 1996. IPU BMEDAI>s1ra ctl
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EXHIBIT 11
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Mr. Michael Krawitz 3551 Flatwoods Road Elliston, VA 24087
Dear Mr. Krawitz:
DEPARTMENT OF VETERANS AFFAIRS
UNDER SECRETARY FOR HEALTH
WASHINGTON DC 20420
JUL 06 2010
This is a follow-up response to your letter requesting clarification of the Veterans Health Administration 's (VHA) policy regarding the practice of prescribing opioid therapy for pain management for Veterans who provide documentation of the use of medical marijuana in accordance with state law.
If a Veteran obtains and uses medical marijuana in a manner consistent with state law, testing positive for marijuana would not preclude the Veteran from receiving opioids for pain management in a Department of Veterans Affairs (VA) facility. The Veteran would need to inform his provider of the use of medical marijuana, and of any other non-VA prescribed medications he or she is taking to ensure that all medications, including opioids, are prescribed in a safe manner. Standard pain management agreements should draw a clear distinction between the use of illegal drugs, and legal medical marijuana. However, the discretion to prescribe, or not prescribe, opioids in conjunction with medical marijuana, should be determined on clinical grounds, and thus will remain the decision of the individual health care provider. The provider will take the use of medical marijuana into account in all prescribing decisions, just as the provider would for any other medication. This is a case-by-case decision, based upon the provider's judgment, and the needs of the patient.
Should you have further questions, please contact Robert Kerns, PhD, National Program Director, New England Healthcare System at (203) 932-5711, extension 3841 .
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EXHIBIT 12
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Department of Veterans Affairs Veterans Health Administration Washington, DC 20420
VHA DIRECTIVE 2011-004
January 31, 2011
ACCESS TO CLINICAL PROGRAMS FOR VETERANS PARTICIPATING IN STATE-APPROVED MARIJUANA PROGRAMS
1. PURPOSE: This Veterans Health Administration (VHA) Directive provides policy regarding access to clinical programs for patients participating in a State-approved marijuana program.
2. BACKGROUND
a. Department of Veterans Affairs (VA) providers must comply with all Federal laws, including the Controlled Substances Act. Marijuana is classified as a Schedule I drug under the Controlled Substances Act.
b. Veterans who receive their care from V A and who have a desire to participate in one of several State marijuana programs might ask their V A physicians to complete State authorization forms.
c. State laws authorizing the use of Schedule I drugs, such as marijuana, even when characterized as medicine, are contrary to Federal law. The Controlled Substances Act (Title 21 United States Code (U.S.C.) 801 et al.) designates Schedule I drugs as having no currentlyaccepted medical use and there are criminal penalties associated with production, distribution, and possession of these drugs. State law has no standing on Federal properties.
d. VHA policy does not administratively prohibit Veterans who participate in State marijuana programs from also participating in VHA substance abuse programs, pain control programs, or other clinical programs where the use of marijuana may be considered inconsistent with treatment goals. While patients participating in State marijuana programs must not be denied VHA services, the decisions to modify treatment plans in those situations need to be made by individual providers in partnership with their patients. VHA endorses a step-care model for the treatment of patients with chronic pain: any prescription(s) for chronic pain needs be managed under the auspices of such programs described in current VHA policy regarding Pain Management.
3. POLICY: It is VHA policy to prohibit VA providers from completing forms seeking recommendations or opinions regarding a Veteran's participation in a State marijuana program.
4. ACTION
a. Deputy Under Secretary for Health for Operations and Management (tON). The Deputy Under Secretary for Health for Operations and Management is responsible for ensuring that medical facility Directors are aware of the prohibition of completing forms for participation in State marijuana programs.
b. Chief Officer Patient Care Services. The Chief Officer Patient Care Services is responsible for providing clinical guidance to V A providers regarding factors to be considered
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when determining how substance abuse, pain control, or other treatment plans could be impacted by a Veteran's participation in State marijuana programs.
c. Medical Facility Director. Each medical facility Director is responsible for ensuring facility clinical staff are aware:
(1) Of the prohibition of completing forms for participation in State marijuana programs.
(2) If a Veteran presents an authorization for marijuana to a VA provider or pharmacist, VA will not provide marijuana nor will it pay for it to be provided by a non-VA entity. NOTE: Possession of marijuana, even for authorized medical reasons, by Veterans while on V A property is in violation of VA regulation 1.218(a)(7) and places them at riskfor prosecution under the Controlled Substances Act.
(3) That if a patient reports participation in a State marijuana program to a member of the clinical staff, that information is entered into the "non-VA medication section" of the patient's electronic medical record following established medical facility procedures for recording nonVA medication use.
5. REFERENCES
a. Office of General Counsel (OCG) Opinion on State Medical Marijuana Registration Forms - V AOPGCADV 9-2008.
b. Title 21 U.S.C. 801 et aI, the Controlled Substances Act.
6. FOLLOW-UP RESPONSIBILITY: Pharmacy Benefits Management Services (119) is responsible for the content of this Directive. Questions may be directed to (202) 461-7326.
7. RECISSIONS: VHA Directive 2010-035 is rescinded. This VHA Directive expires January 31 , 2016.
Robert A. Petzel M.D. Under Secretary for Health
DISTRIBUTION: E-mailed to the VHA Publication Distribution List 2/4/2011
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EXHIBIT 13
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187 Cal.App.4th 734 (2010)
QUALIFIED PATIENTS ASSOCIATION et al., Plaintiffs and Appellants, v.
CITY OF ANAHEIM, Defendant and Respondent.
No. G040077.
Court of Appeals of California, Fourth District, Division Three.
August 18, 2010.
740*740 Anthony Curiale for Plaintiffs and Appellants.
Joseph D. Elford for Americans for Safe Access as Amicus Curiae on behalf of Plaintiffs and Appellants.
Mark Leno, in pro. per., as Amicus Curiae on behalf of Plaintiffs and Appellants.
Jack L. White, City Attorney, Cristina Talley, Acting City Attorney, and Moses W. Johnson IV, Assistant City Attorney, for Defendant and Respondent.
Jones & Mayer, Martin J. Mayer, Jamaar Boyd-Weatherby and Krista MacNevin Jee for California State Sheriffs' Association, California Police Chiefs' Association and California Peace Officers' Association as Amici Curiae on behalf of Defendant and Respondent.
Meyers, Nave, Riback, Silver & Wilson, Chrystal B. James and Ellin Davtyan for Cities of Adelanto, Bakersfield, Burbank, Calipatria, Camarillo, Carson, Chino, Compton, Costa Mesa, Cypress, Fairfield, Fountain Valley, Fullerton, Garden Grove, Kerman, Livingston, Newport Beach, Orange, Oakley, Palmdale, Placentia, Plymouth, Ripon, Roseville, San Marcos, Santa Clara, Santa Clarita, Torrance, Tustin, Ukiah, Westminster and Town of Apple Valley as Amici Curiae on behalf of Defendant and Respondent.
741*741 William James Murphy, County Counsel (Tehama) and Arthur J. Wylene, Assistant County Counsel, for California State Association of Counties as Amicus Curiae on behalf of Defendant and Respondent.
Edmund G. Brown, Jr., Attorney General, and Peter A. Krause, Deputy Attorney General, as Amici Curiae upon the request of the Court of Appeal.
OPINION
ARONSON, J.
Plaintiffs Qualified Patients Association (QPA) and Lance Mowdy appeal from a judgment of dismissal entered after the trial court sustained, without leave to amend, the City of Anaheim's demurrer to plaintiffs' complaint. Asserting the primacy of state law over local law under constitutional and statutory authority (Cal. Const., art. XI, § 7; Gov. Code, § 37100), plaintiffs' first cause of action sought a declaratory judgment that the city's ordinance imposing criminal penalties for the operation of a medical marijuana dispensary was preempted by the Compassionate Use Act of 1996 (CUA) (Health & Saf. Code, § 11362.5)[1] and the Medical Marijuana Program Act (MMPA) (§§ 11362.7-11362.83). In their second cause of
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action, plaintiffs asserted the city'sordinance violated the Unruh Civil Rights Act (Civ. Code, § 51).
We agree with plaintiffs the trial court erred as a matter of law in concluding federal regulation of marijuana in the Controlled Substances Act (21 U.S.C. § 812 et seq.) preempted California's decision in the CUA and the MMPA to decriminalize specific medical marijuana activities under state law. We therefore reverse the judgment of dismissal and remand the matter to allow plaintiffs to pursue their declaratory judgment cause of action. The trial court, however, correctly concluded plaintiffs failed to state a cause of action under the Unruh Civil Rights Act, which is aimed at "business establishments" (Civ. Code, § 51, subd. (b)), not local government legislative acts. We therefore affirm that portion of the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
In a provision entitled, "`Medical Marijuana Dispensary Prohibited,'" the city ordinance that plaintiffs challenge provides: "`It shall be unlawful for any person or entity to own, manage, conduct, or operate any Medical 742*742 Marijuana Dispensary or to participate as an employee, contractor, agent or volunteer, or in any other manner or capacity, in any Medical Marijuana Dispensary in the City of Anaheim.'" (Anaheim Ord. No. 6067, § 1; see Anaheim Mun. Code, § 4.20.030.)
Anaheim Ordinance No. 6067, section 1 defines a "`"Medical marijuana dispensary or dispensary"'" as "`any facility or location where medical marijuana is made available to and/or distributed by or to three or more of the following: a qualified patient, a person with an identification card, or a primary caregiver.'" (See Anaheim Mun. Code, § 4.20.020.030.)
The ordinance provides, in section 5, for misdemeanor punishment for "any person who violates any provision of this ordinance . . . ."
Plaintiffs' first cause of action sought a declaratory judgment that the state's medical marijuana laws preempted the city's ordinance. Based on its conclusion federal law preempted the state's medical marijuana laws, the trial court sustained the city'sdemurrer to plaintiffs' first cause of action, without leave to amend. The trial court also sustained without leave to amend the city's demurrer to plaintiffs' second cause of action, which asserted the city's ordinance discriminated against them on the basis of a "disability" or "medical condition" in violation of the Unruh Civil Rights Act. (Civ. Code, § 51.) The trial court observed, "Courts generally take a dim view of the assertion or claim to a right to do something that is illegal." The trial court also concluded the act did not apply to legislative bodies but rather only to "business establishments." (Civ. Code, § 51, subd. (b).) Plaintiffs now appeal.
II
DISCUSSION
A. Applicable Authority
1. The CUA
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California voters approved Proposition 215 in 1996, codified as the Compassionate Use Act of 1996 at section 11362.5. (See People v. Trippet (1997) 56 Cal.App.4th 1532, 1546 [66 Cal.Rptr.2d 559] (Trippet); People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1436 [7 Cal.Rptr.3d 226] (Tilehkooh).) Subdivision (d) of section 11362.5 provides: "Section 11357, relating to the possession of marijuana, and [s]ection 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician."
743*743 (1) Examining this language, People v. Urziceanu (2005) 132 Cal.App.4th 747, 772-773 [33 Cal.Rptr.3d 859] (Urziceanu), explained that "the Compassionate Use Act is a narrowly drafted statute designed to allow a qualified patient and his or her primary caregiver to possess and cultivate marijuana for the patient's personal use despite the penal laws that outlaw these two acts for all others." The Urziceanu court observed that, apart from possession and cultivation, "the Compassionate Use Act did not alter the other statutory prohibitions related to marijuana, including those that bar the transportation, possession for sale, and sale of marijuana." (Urziceanu, supra, 132 Cal.App.4th at p. 773; see also Trippet, supra, 56 Cal.App.4th at p. 1550 [recognizing the CUA's literal terms left primary caregivers vulnerable for transporting marijuana down a hallway to their patients].) The court continued: "When the people of this state passed [the CUA], they declined to decriminalize marijuana on a wholesale basis. As a result, the courts have consistently resisted attempts by advocates of medical marijuana to broaden the scope of these limited specific exceptions. We have repeatedly directed the proponents of this approach back to the Legislature and the citizenry to address their perceived shortcomings with this law." (Urziceanu, at p. 773.) Accordingly, Urziceanu held: "A cooperative where two people grow, stockpile, and distribute marijuana to hundreds of qualified patients or their primary caregivers, while receiving reimbursement for these expenses, does not fall within the scope of the language of the Compassionate Use Act or the cases that construe it." (Ibid.) Later in its opinion, the Urziceanu court examined whether the terms of the MMPA required a different conclusion, as we discuss below.
As noted in Urziceanu, the exemptions provided in the CUA for a qualified patient to possess and cultivate medical marijuana also apply to his or her primary caregiver. The CUA defines a "primary caregiver" as "the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person." (§ 11362.5, subd. (e).)
(2) The California Supreme Court has explained that to be a primary caregiver under this section, an individual must show that "he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana." (People v. Mentch (2008) 45 Cal.4th 274, 283 [85 Cal.Rptr.3d 480, 195 P.3d 1061] (Mentch).) The high court in Mentch concluded that a patient may not confer primary caregiver status merely by designating a person as a primary caregiver, nor does a person qualify simply by providing medical marijuana to the patient. (Id. at pp. 283-285.) Rather, the person must show "a caretaking relationship directed at the core survival needs of a seriously ill patient, not just one single pharmaceutical need." (Id.at p. 286.)
744*744 The electorate, in enacting the CUA, "directed the state to create a statutory plan to provide for the safe and affordable distribution of medical marijuana to qualifiedpatients." (People v. Hochanadel (2009) 176 Cal.App.4th 997, 1014 [98 Cal.Rptr.3d 347] (Hochanadel).) The electorate's stated intent in enacting the CUA was three-fold: first, to "ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of
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[designated illnesses] or any other illness for which marijuana provides relief"; second, to "ensure that patientsand their primary caregivers who obtain and use marijuana for medical purposes under the recommendation of a physician are not subject to criminal prosecution or sanction"; and third, to "encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana." (§ 11362.5, subd. (b)(1)(A)-(C).)
2. The MMPA
In 2003, the Legislature enacted the Medical Marijuana Program Act, effective January 1, 2004, adding sections 11362.7 through 11362.83 to the Health and Safety Code. (See People v. Wright (2006) 40 Cal.4th 81, 93 [51 Cal.Rptr.3d 80, 146 P.3d 531] (Wright).) The express intent of the Legislature was to "(1) Clarify the scope of the application of the [CUA] and facilitate the prompt identification of qualified patientsand their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers. [¶] (2) Promote uniform and consistent application of the act among the counties within the state. [¶] (3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects." (Stats. 2003, ch. 875, § 1(b)(1)-(3), italics added.) The MMPA also expressly stated: "It is . . . the intent of the Legislature to address additional issues that were not included within the [CUA], and that must be resolved in order to promote the fair and orderly implementation of the [CUA]." (Stats. 2003, Ch. 875, § 1(c).) According to the act's legislative history, "Nothing in [the MMPA] shall amend or change Proposition 215, nor prevent patients from providing a defense under Proposition 215 . . . . The limits set forth in [the MMPA] only serve to provide immunity from arrest for patients taking part in the voluntary ID card program, they do not change [s]ection 11362.5(Proposition 215) . . . ." (Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business Analysis of Sen. Bill No. 420 (2003-2004 Reg. Sess.) as amended Sept. 9, 2003, pp. 6-7, italics added.)
In section 11362.71, the MMPA established a program to facilitate the "`prompt identification of qualified patients and their designated primary 745*745 caregivers'" (Wright, supra, 40 Cal.4th at p. 93) via a voluntary identification card program, which the Legislature required counties to implement (§§ 11362.71, subd. (b), 11362.72; seeCounty of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 811, 818, 825-828 [81 Cal.Rptr.3d 461] (County of San Diego) [holding federal law making marijuana illegal did not preempt the MMPA's identification card program]).
Particularly relevant to this appeal, the MMPA also added section 11362.775, which provides: "Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357 [(possession of marijuana)], 11358 [(cultivation of marijuana)], 11359 [(possession for sale)], 11360 [(transportation)], 11366 [(maintaining a place for the sale, giving away or use of marijuana)], 11366.5 [(making available premises for the manufacture, storage or distribution of controlled substances)], or 11570 [(abatement of nuisance created by premises used for manufacture, storage or distribution of controlled substance)]." (Italics added.)
In Urziceanu, the court observed that "[t]his new law represents a dramatic change in the prohibitions on the use, distribution, and cultivation of marijuana for persons who are qualified patients or primary caregivers . . . . Its specific itemization of the marijuana sales law indicates it contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana." (Urziceanu, supra, 132 Cal.App.4th at p. 785.)
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Adding detail to California's quilt of medical marijuana legislation, the MMPA, in section 11362.765, expressly immunizes from state criminal liability, in relation to lawful medical marijuana use: "Any individual who provides assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver, inadministering medical marijuana to the qualified patient or person or acquiring the skills necessary to cultivate or administer marijuana for medical purposes to thequalified patient or person." (§ 11362.765, subd. (b)(3), italics added; see id., subd. (a) ["Subject to the requirements of this article, the individuals specified in subdivision (b) shall not be subject, on that sole basis, to criminal liability under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570."].)
The MMPA also expressly immunizes "[a] qualified patient or a person with an identification card who transports or processes marijuana for his or 746*746 her ownpersonal medical use." (§ 11362.765, subd. (b)(1), italics added.) Section 11362.765, subdivision (b)(2), similarly immunizes primary caregivers, specifically any "designatedprimary caregiver who transports, processes, administers, delivers, or gives awaymarijuana for medical purposes . . . only to the qualified patient of the primary caregiver, or to the person with an identification card who has designated the individual as a primary caregiver." (Italics added.) Subdivision (c) of section 11362.765 addresses compensation. It mandates that "[a] primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for services provided to an eligible qualified patient or person with an identification card to enable that person to use marijuana under this article, or for payment for out-of-pocket expenses incurred in providing those services, or both, shall not, on the sole basis of that fact, be subject to prosecution or punishment under Section 11359 or 11360."
The MMPA also "elaborates on" the definition of primary caregiver in the CUA. (Hochanadel, supra, 176 Cal.App.4th at p. 1008.) The MMPA reiterates the definition of a primary caregiver contained in the CUA, i.e., "the individual, designated by aqualified patient . . . who has consistently assumed responsibility for the housing, health, or safety of that patient or person . . . ." (§ 11362.7, subd. (d).) The subdivision goes on to provide examples of the Legislature's view of persons qualifying as primary caregivers under this definition: (1) Owners and operators of clinics or care facilities; (2) "An individual who has been designated as a primary caregiver by more than onequalified patient or person with an identification card, if every qualified patient or person with an identification card who has designated that individual as a primary caregiver resides in the same city or county as the primary caregiver"; and (3) "An individual who has been designated as a primary caregiver by a qualified patient or person with an identification card who resides in a city or county other than that of the primary caregiver, if the individual has not been designated as a primary caregiver by any other qualified patient or person with an identification card." (§ 11362.7, subd. (d)(1)-(3).)
The MMPA bars individuals and any collective, cooperative, or other group from transforming medical marijuana projects authorized under the MMPA into for-profit enterprises. (§ 11362.765, subd. (a) ["nothing in this section shall authorize . . . any individual or group to cultivate or distribute marijuana for profit"].)
3. Attorney General Guidelines
Section 11362.81, subdivision (d), of the MMPA provides: "[T]he Attorney General shall develop and adopt appropriate guidelines to ensure the security 747*747 and nondiversion of marijuana grown for medical use by patients qualified under the [CUA]." On August 25, 2008, the California Attorney General issued Guidelines for the Security and Non-diversion of Marijuana Grown for Medical Use (A.G. Guidelines, or Guidelines) (as of Aug. 18, 2010). The A.G. Guidelines' stated purpose is to "(1) ensure that marijuana grown for medical purposes remains secure and does not find its way to non-patients or illicit markets, (2) help law enforcement
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agencies perform their duties effectively and in accordance with California law, and (3) help patientsand primary caregivers understand how they may cultivate, transport, possess, and use medical marijuana under California law." (Guidelines, supra, at p. 1.)
The A.G. Guidelines provide a definition of "cooperatives" and "collectives." The Guidelines observe that "[n]o business may call itself a `cooperative' (or `co-op') unless it is properly organized and registered as such a corporation under the Corporations or Food and Agricultural Code." (A.G. Guidelines, at p. 8; see Corp. Code, §§ 12201, 12300.) A cooperative "must file articles of incorporation with the state and conduct its business for the mutual benefit of its members. [Citation.] . . . Cooperative corporations are `democratically controlled and are not organized to make a profit for themselves, as such, or for their members, as such, but primarily for their members as patrons.' [Citation.]" (Guidelines, at p. 8, italics added.) Further, "[c]ooperatives must follow strict rules on organization, articles, elections, anddistribution of earnings, and must report individual transactions from individual members each year." (Ibid., italics added.) Turning to the dictionary, the A.G. Guidelines define a "collective" as "`a business, farm, etc., jointly owned and operatedby the members of a group.' [Citation.]" (Ibid., italics added.) Given this joint ownership and operation requirement, "a collective should be an organization that merely facilitates the collaborative efforts of patient and caregiver members—including the allocation of costs and revenues." (Ibid.)
Pursuant to these definitions, the Attorney General concludes in the Guidelines that a cooperative or collective "should not purchase marijuana from, or sell to, non-members; instead, it should only provide a means for facilitating or coordinating transactions between members." (A.G. Guidelines, supra, at p. 8.)
The A.G. Guidelines articulate additional requirements for the lawful operation of cooperatives and collectives, including that they must be nonprofit operations. (A.G. Guidelines, supra, at p. 9.) They may "acquire marijuana only from their constituent members, because only marijuana grown by a qualified patient or his or her primary caregiver may lawfully be 748*748 transported by, or distributed to, other members of a collective or cooperative. [Citations.] . . . Nothing allows marijuana to be purchased from outside the collective or cooperative for distribution to its members. Instead, the cycle should be a closed-circuit of marijuana cultivation and consumption with no purchases or sales to or from non-members. To help prevent diversion of medical marijuana to non-medical markets, collectives and cooperatives should document each member's contribution of labor, resources, or money to the enterprise. They should also track and record the source of their marijuana." (Id. at p. 10, italics added.)
Distribution or sale to nonmembers is prohibited: "State law allows primary caregivers to be reimbursed for certain services (including marijuana cultivation), but nothing allows individuals or groups to sell or distribute marijuana to non-members. Accordingly, a collective or cooperative may not distribute medical marijuana to any person who is not a member in good standing of the organization. A dispensing collective or cooperative may credit its members for marijuana they provide to the collective, which it may then allocate to other members. [Citation.] Members also may reimburse the collective or cooperative for marijuana that has been allocated to them. Any monetary reimbursement that members provide to the collective or cooperative should only be an amount necessary to cover overhead costs and operating expenses." (A.G. Guidelines, supra, at p. 10.)
Finally, to aid law enforcement in determining whether marijuana-related activities comply with the CUA and MMPA, the A.G. Guidelines specifically address "Storefront Dispensaries." (A.G. Guidelines, supra, at p. 11.) The Attorney General concludes in the Guidelines that while "dispensaries, as such, are not recognized under the law," "a properly organized and operated collective or cooperative that dispenses medical marijuana through a storefront may be lawful
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under California law, but . . . dispensaries that do not substantially comply with the guidelines [covering collectives and cooperatives] are likely operating outside the protections of [the CUA] and the MMP[A], and . . . the individuals operating such entities may be subject to arrest and criminal prosecution under California law. For example, dispensaries that merely require patients to complete a form summarily designating the business owner as their primary caregiver—and then offering marijuana in exchange for cash `donations'—are likely unlawful." (A.G. Guidelines, supra, at p. 11, italics added.)
(3) "While the Attorney General's views do not bind us [citation], they are entitled to considerable weight [citation]." (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 829 [25 Cal.Rptr.2d 148, 863 P.2d 218].)
749*749 B. The MMPA Does Not Unconstitutionally Amend the CUA
(4) The city asserts the MMPA unconstitutionally amends the CUA. The California Constitution bars the Legislature from amending an initiative measure unless the measure itself authorizes amendment. (Cal. Const., art. II, § 10, subd. (c); People v. Cooper (2002) 27 Cal.4th 38, 44 [115 Cal.Rptr.2d 219, 37 P.3d 403].) It is undisputed the CUA does not provide for legislative amendment. The city's challenge fails, however, because the MMPA does not amend the CUA, as the court in Hochanadel, supra, 176 Cal.App.4th 997 explained.
Hochanadel rejected the same amendment argument the city advances. There, "[t]he People assert[ed] that section 11362.775, which exempts medical marijuana patients, persons with valid medical marijuana identification cards and their primary caregivers who form collectives or cooperatives to cultivate marijuana from prosecution for several drug-related crimes, constituted an unconstitutional amendment of the CUA." (Hochanadel, supra, 176 Cal.App.4th at p. 1011.) Here, the city contends that section 11362.775 of the MMPA, "by dramatically changing the CUA[,] has unconstitutionally amended it."
(5) In Hochanadel, the court explained this line of attack is "unavailing" because the MMPA "`amended provisions of the Health and Safety Code regarding regulation of drugs adopted by the Legislature, not provisions of the CUA.'" (Hochanadel, supra,176 Cal.App.4th at pp. 1011, 1013, italics added.) The court concluded: "`Because the MMP[A]'s [cooperative and collective] program has no impact on the protections provided by the CUA, we reject [the] claim that those provisions are invalidated by . . . the California Constitution.'" (Id. at p. 1013, second brackets added.) Elaborating, the court observed that section 11362.775 "did not constitute an amendment of the CUA as it was not intended to, and did not, alter the rights provided by the CUA. Rather, it identifies groups that may lawfully distribute medical marijuana to patients under the CUA. Thus, it was designed to implement, not amend the CUA." (Hochanadel, at p. 1013, original italics.) "Indeed," the court noted, "the CUA itself directed the state to create a statutory plan to provide for the safe and affordable distribution of medical marijuana to qualified patients. (§ 11362.5, subd. (b)(1)(C).) Thus, in enacting section 11362.775 the Legislature created what the CUA expressly contemplated and did not unconstitutionally amend the CUA." (Hochanadel, at p. 1014.)
We agree with Hochanadel. The city relies on language in Urziceanu stating that the MMPA "represents a dramatic change in the prohibitions on the use, distribution, and cultivation of marijuana . . . . Its specific itemization 750*750 of the marijuana sales law indicates it contemplates the formation and operation of medicinal marijuana cooperatives . . . ." (Urziceanu, supra, 132 Cal.App.4th at p. 785, italics added.) The initiative may have prompted the Legislature to add or change other laws, but this does not mean it amended the initiative.
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(6) The purpose of the Constitution's ban on legislative amendments is to "`"`jealously guard'"'" the electorate's initiative power from intermeddling by the Legislature. (People v. Kelly (2010) 47 Cal.4th 1008, 1025, 1030 [103 Cal.Rptr.3d 733, 222 P.3d 186] ["`No other state in the nation carries the concept of initiatives as "written in stone" to such lengths . . .'" as California].) Accordingly, "amendments which may conflict with the subject matter of initiative measures must be accomplished by popular vote, as opposed to legislative[] enact[ment] . . . ." (Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473, 1486 [76 Cal.Rptr.2d 342], original italics.) Contrary to the city's position, however, the purpose of the constitutional ban on amendments is not implicated here. As the Supreme Court in Kelly observed, "[D]espite the strict bar on the Legislature's authority to amend initiative statutes, judicial decisions have observed that this body is not thereby precluded from enacting laws addressing the general subject matter of an initiative." (Kelly, at p. 1025.)
(7) Hochanadel explained that the MMPA did not amend the CUA. Rather, the MMPA amended, consistent with the CUA, the Health and Safety Code provisions barring the transportation, distribution and cooperative or collective cultivation of marijuana. (SeeHochanadel, supra, 176 Cal.App.4th at p. 1013.) By providing immunity from prosecution for those activities when conducted in compliance with state law, the MMPA changed the Health and Safety Code. Because the CUA did not touch on these topics (see § 11362.5, subd. (d) [affording immunity only for personal possession and cultivation of medicinal marijuana]), it necessarily follows that the MMPA did not expand or restrict the CUA in the manner necessary to constitute an amendment (seeFranchise Tax Bd. v. Cory (1978) 80 Cal.App.3d 772, 776 [145 Cal.Rptr. 819] ["A statute which adds to or takes away from an existing statute is considered an amendment."]). Rather, without treading on the electorate's superior power, the Legislature properly acted within its sphere to define specific transportation, distribution, and collective or cooperative activities as noncriminal. (See People v. Mills (1978) 81 Cal.App.3d 171, 176-177 [146 Cal.Rptr. 411] ["The definition of crime and the determination of punishment are foremost among those matters that fall within the legislative domain."].) Consequently, we reject the argument the MMPA constitutes an amendment of the CUA.
751*751 C. Whether State Law Preempts the City's Ordinance
1. Standing
(8) Plaintiffs' first cause of action sought a declaratory judgment that the city'sordinance is preempted by state medical marijuana law embodied in the CUA and MMPA. The city contends plaintiffs lack standing to obtain declaratory relief. The citydid not demur to plaintiffs' complaint on this ground, but lack of standing constitutes a jurisdictional defect and therefore may be raised at any time, even for the first time on appeal. (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 438 [261 Cal.Rptr. 574, 777 P.2d 610]; Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603-1604 [52 Cal.Rptr.2d 443].) (9) Plaintiffs' declaratory judgment action requires an "actual controversy relating to the legal rights and duties of the respective parties." (Code Civ. Proc., § 1060.) "Courts will decline to resolve lawsuits that do not present a justiciable controversy, and justiciability `involves the intertwined criteria of ripeness and standing.'" (County of San Diego, supra, 165 Cal.App.4th at p. 813.) The standing issue here consists of whether, simply put, plaintiffs have "incurred an injury capable of redress." (New York Times Co. v. Superior Court (1990) 51 Cal.3d 453, 466 [273 Cal.Rptr. 98, 796 P.2d 811].)
(10) The city argues plaintiffs can obtain no redress from a preemption determination because they cannot show they fall within the CUA's and MMPA's protection. But "[a] general demurrer is
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usually not an appropriate method for testing the merits of a declaratory relief action, because the plaintiff is entitled to a declaration of rights even if it is adverse to the plaintiff's interest." (Cal. Judges Benchbook: Civil Proceedings Before Trial (CJER 2d ed. 2008) Attacks on Pleadings, § 12.83, p. 52 (hereafter Judges Benchbook).) This is particularly true here because factual issues abound on whether plaintiffs' activities place them in the category of a lawful "cooperative" or "collective" under the MMPA, and whether plaintiffs are in fact "qualified patients" or "primary caregivers" under the act. (See Cal. Judges Benchbook, supra, § 12.83, p. 52 [demurrer inappropriate where factual issues remain].)
The city's oft-repeated, pejorative characterization of QPA as a "storefront dispensary," rather than a "cooperative" or "collective," is not persuasive. The cityseems to suggest that any medical marijuana outlet it designates as a "dispensary" affronts California medical marijuana law.[2] The city's argument 752*752 fails for two reasons. First, we are here after demurrer, and QPA is identified nowhere in the complaint or any judicially noticeable material as a "storefront dispensary." Second, the "dispensary" label—even assuming it is apt—is not dispositive. As the Attorney General observes in the A.G. Guidelines: while "dispensaries, as such, are not recognized under the law," "a properly organized and operated collective or cooperative that dispenses medical marijuana through a storefront may be lawful under California law . . . ." (A.G. Guidelines, supra, p. 11.) We perceive no reason at this juncture to disagree with the Attorney General's assessment.
The city points to Mowdy's claim in the complaint that he is the "designated primary caregiver for the members of the Association," which consists of "more than fiftyqualified patients" (italics added), as facts disqualifying him, QPA, and its members from state law protection. Relying on Mentch, the city observes "the many customers of a marijuana `association,' here the Qualified Patients Ass'n (QPA), cannot execute pro forma designations of the QPA [or Mowdy] as their primary caregiver." (Original brackets.) The city concludes: "The QPA [or Mowdy] cannot qualify as a primary caregiver in these circumstances. A person purchasing marijuana for medicinal purposes cannot simply designate seriatim, and on an ad hoc basis, sales centers such as the QPA [or Mowdy] as the patient's `primary caregiver.'" (Original brackets.) (See Mentch, supra, 45 Cal.4th at p. 284.)
(11) But nothing in the complaint, nor any judicially noticeable material, discloses that Mowdy's relationship with QPA patients is one of mere pro forma designation. True, Mowdy's assertion he is a "primary caregiver" does not, by itself, establish he qualifies for that legal status under the CUA and the MMPA, for we do not credit mere conclusions of law stated in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].) But neither may we prejudge, as the city would have us do, that Mowdy is not a legitimate "primary caregiver" absent facts that disqualify him. Nor, similarly, may we simply conclude QPA is not a collective or cooperative or that it is not comprised of qualified patients. A demurrer lies for lack of standing when the defect appears on the face of the pleading or from judicially noticeable matters. (See, e.g., Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796 [166 Cal.Rptr. 844, 614 P.2d 276]; Klopstock v. Superior Court(1941) 17 Cal.2d 13, 19 [108 P.2d 906]; O'Flaherty v. Belgum (2004) 115 Cal.App.4th 1044, 1095 [9 Cal.Rptr.3d 286].) As discussed, that is not the case here. A summary judgment motion, not demurrer as the city would have it, may be deployed to "cut through the . . . pleadings" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 [107 Cal.Rptr.2d 841, 24 P.3d 493]) on whether Mowdy in fact qualifies as a primary caregiver and whether QPA is a collective, a cooperative or comprised ofqualified patients. As we explain below, we do not reach the issue of whether state law preempts the city's ordinance. But at this stage of 753*753 the proceedings, the city'sattempt on appeal to torpedo plaintiffs' preemption claim on grounds the CUA and the MMPA do not apply to them is premature. (See Chemerinsky, Constitutional Law, Principles and Policies (2d ed. 2002) § 2.5, p. 78 [criticizing redressability determinations made prematurely on the basis of the pleadings].)
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2. The State Law Preemption Issue Is Not Ripe for Our Review
We do not decide whether the CUA or the MMPA preempts the city's ordinance because we conclude the issue is not properly before us. Plaintiffs did not appeal the trial court's order denying their request for a preliminary injunction restraining enforcement of the ordinance on preemption grounds. (Code Civ. Proc., § 904.1, subd. (a)(6) [an order granting or denying an injunction is appealable]; Socialist Workers etc. Committee v. Brown (1975) 53 Cal.App.3d 879, 885, fn. 4 [125 Cal.Rptr. 915] [same].) Plaintiffs provide no authority and make no argument concerning the legal standards for a preliminary injunction. Accordingly, we express no opinion on whether their request for a preliminary injunction should have been granted, or whether state law preempts the city's ordinance. The only issue before us is the trial court's ruling, founded on the preemptive power of federal law, sustaining the city'sdemurrer to the complaint without leave to amend.
True, the trial court expressed skepticism concerning plaintiffs' claim that state law preempts the city's ordinance. But the trial court's demurrer ruling refers specifically only to the CUA and the Unruh Civil Rights Act, not the MMPA. The authorities cited in the trial court's order, including Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920 [70 Cal.Rptr.3d 382, 174 P.3d 200] (Ross), did not involve the MMPA.[3] (See Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 680 [36 Cal.Rptr.3d 495, 123 P.3d 931] ["`An opinion is not authority for propositions not considered.'"].)
The trial court apparently did not consider whether the MMPA's provisions that are distinct from the CUA, including sections 11362.765 and 11362.775, preempt thecity's ordinance. The court in People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1390 [70 Cal.Rptr.2d 20], held that the "general availability of injunctive relief under section 11570 against buildings and drug houses used to sell controlled substances is not affected by" the CUA. The Legislature subsequently enacted the MMPA. Sections 11362.765 and 11362.775 of the MMPA immunize operators of medical marijuana dispensaries—provided they are qualified patients, possess valid medical marijuana identification cards, or are primary caregivers—from prosecution under state 754*754 nuisance abatement law (§ 11570) "solely on the basis" that they use any "building or place . . . for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away any controlled substance . . . ." Sections 11362.765 and 11362.775 also provide qualifying persons immunity from nonfederal criminal sanctions imposed "solely on the basis" of "open[ing] or maintain[ing] any place for the purpose of unlawfully selling, giving away, or using any controlled substance . . . ." (§ 11366) or for "rent[ing], leas[ing], or mak[ing] available for use . . . [a] building, room, space, or enclosure for the purpose of unlawfully manufacturing, storing, or distributing any controlled substance . . ." (§ 11366.5).
Whether the MMPA bars local governments from using nuisance abatement law and penal legislation to prohibit the use of property for medical marijuana purposes remains to be determined.[4] Unlike in Ross, where the Supreme Court observed that "[t]he operative provisions of the [CUA] do not speak to employment law" (Ross, supra,42 Cal.4th at p. 928), the MMPA explicitly touches on land use law by proscribing in sections 11362.765 and 11362.775 the application of sections 11570, 11366, and 11366.5 to uses of property involving medical marijuana. Here, viewing the allegations of the complaint most favorably to plaintiffs, as is required on demurrer, it appears incongruous at first glance to conclude a city may criminalize as a misdemeanor a particular use of property the state expressly has exempted from "criminal liability" in sections 11362.765 and 11362.775. Put another way, it seems odd the Legislature would disagree with federal policymakers about including medical marijuana in penal and drug house abatement legislation (compare 21 U.S.C. §§ 812, 856 with Health & Saf. Code, §§
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11362.765, 11362.775), but intend that local legislators could side with their federal— instead of state—counterparts in prohibiting and criminalizing property uses "solely on the basis" of medical marijuana activities. (§§ 11362.765, 11362.775.) After all, local entities are creatures of the state, not the federal, government.
But in supplemental briefing at our invitation, the city and its amici curiae demonstrate the issue of state preemption under the MMPA is by no means clear cut or easily resolved on first impressions. They argue with much 755*755 appeal, for example, that if the immunity from "criminal liability" provided in sections 11362.765 and 11362.775 applies to "the well-recognized quasi-criminal nature of [s]ection 11570," the "careful phrasing of the MMPA provides no suggestion that this narrow exclusion was intended to wholly eliminate any remedy for activities determined to be an ordinary nuisance under . . . legal authority" apart from section 11570.[5] (Original italics; see also 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 70, p. 144 [noting § 11570 qualifies as "civil in nature," but also "quasi-criminal in effect" and "character"].) We do not decide these issues.
As anxious as we, the parties, and amici curiae are to reach this important and interesting question of state preemption, this case in its present posture is not the occasion to do so. Because it appears the trial court, apart from the asserted fundamental defect of federal preemption, did not address or determine that plaintiffs failed to state a claim for declaratory relief under the MMPA, as opposed to the CUA or Unruh Civil Rights Act, it is not our province to do so in the first instance. Moreover, as noted, factual issues that we may not resolve on appeal remain, including whether plaintiffs qualify as primary caregivers or otherwise for the MMPA's asserted protection against 756*756 an ordinance imposing criminal punishment for operating a dispensary, and the manner in which plaintiffs intend to conduct their medical marijuana activities.
(12) In our common law tradition, the "legal rules that emerge from judicial opinions are `precepts attaching a definite detailed legal consequence to a definite, detailed state of facts.'" (Aldisert, Max Rosenn: An Ideal Appellate Judge (2006) 154 U.Pa. L.Rev. 1025, 1030-1031, quoting Pound, Hierarchy of Sources and Forms in Different Systems of Law (1933) 7 Tul. L.Rev. 475, 482.) Here, we have precious few facts concerning plaintiffs' planned medical marijuana activities. At demurrer, on the few facts known about the manner in which QPA intends to operate, we cannot say plaintiffs have failed to state a cause of action to obtain declaratory judgment on whether the MMPA preempts the city's ordinance.
(13) In sum, demurrer is not the proper context to reach and resolve the merits of plaintiffs' claim for declaratory judgment. "When," as here, "the complaint sets forth facts showing the existence of an actual controversy between the parties relating to their respective legal rights and duties and requests that these rights and duties be adjudged, the plaintiff has stated a legally sufficient complaint for declaratory relief. It is an abuse of discretion for a judge to sustain a demurrer to such a complaint and to dismiss the action, even if the judge concludes that the plaintiff is not entitled to a favorable declaration." (Judges Benchbook, supra, § 12.83, p. 52.) As noted, "the plaintiff is entitled to a declaration of rights even if it is adverse to the plaintiff's interest." (Ibid.) We express no opinion on the merits of the parties' positions, but instead remand to allow the parties and the trial court to address these issues in further proceedings, including summary judgment or trial, if triable issues of fact remain unresolved.[6]
We now turn to the trial court's conclusion the city was entitled to prevail on demurrer based on federal preemption.
D. Federal Law Does Not Preempt the CUA or the MMPA
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The city asserts, and the trial court agreed, that plaintiffs' complaint fails to state a cause of action for declaratory relief under the CUA and the MMPA because federal law preempts those enactments. Noting that the Controlled Substances Act (CSA) continues to prohibit the possession of marijuana even for medical users (see 21 U.S.C. §§ 812, 844(a); Gonzales v. Raich (2005) 545 U.S. 1, 26-29 [162 L.Ed.2d 1, 125 S.Ct. 2195] (Gonzales); United 757*757 States v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 483, 491-495 [149 L.Ed.2d 722, 121 S.Ct. 1711] (Oakland Cannabis)), the trial court viewed the CUA and the MMPA as an attempted "state[] override of federal law to make the drug marijuana legal, or . . . to make legal the sale of marijuana through medical marijuana dispensaries."
In Gonzales, the high court held intrastate growth and use of medical marijuana under the CUA did not place the defendants there beyond the CSA's reach, since Congress's plenary commerce power extends to these activities. (Gonzales, supra, 545 U.S. at pp. 17, 26-29.) And in Oakland Cannibis, the court held the CSA did not authorize an implied defense to its penal provisions based on medical necessity, even where a state strictly controlled access to medical marijuana. (Oakland Cannibis, supra, 532 U.S. at p. 491.) To the contrary, the terms of the CSA reflect Congress's conclusion that marijuana serves no medical purpose. (Oakland Cannibis, at p. 491.) Relying onGonzales and Oakland Cannibis and reasoning that states do not have authority to override federal law, the trial court found that federal law preempted the CUA and the MMPA. Accordingly, the trial court sustained without leave to amend the city'sdemurrer to plaintiffs' first cause of action for a declaratory judgment that state law preempted the city's ordinance.
Whether federal law preempts state law is a legal issue that we review de novo. (Spielholz v. Superior Court (2001) 86 Cal.App.4th 1366, 1371 [104 Cal.Rptr.2d 197] (Spielholz).) As we explain below, California's decision in the CUA and the MMPA to decriminalize for purposes of state law certain conduct related to medical marijuana does nothing to "override" or attempt to override federal law, which remains in force. (See, e.g., Gonzales and Oakland Cannibis.) To the contrary, because the CUA and the MMPA do not mandate conduct that federal law prohibits, nor pose an obstacle to federal enforcement of federal law, the enactments' decriminalization provisions are not preempted by federal law.
(14) Congress has the power to preempt state law under the Constitution's supremacy clause. (U.S. Const., art. VI, cl. 2; see, e.g., Crosby v. National Foreign Trade Council(2000) 530 U.S. 363, 372-374 [147 L.Ed.2d 352, 120 S.Ct. 2288] (Crosby); Gibbons v. Ogden (1824) 22 U.S. 1, 211 [6 L.Ed. 23]; McCulloch v. Maryland (1819) 17 U.S. 316, 427 [4 L.Ed. 579].) "[T]here is," however, "a strong presumption against federal preemption when it comes to the exercise of historic police powers of the states. [Citations.] That presumption will not be overcome absent a clear and manifest congressional purpose." (People v. Boultinghouse (2005) 134 Cal.App.4th 619, 625 [36 Cal.Rptr.3d 244] (Boultinghouse).) Because regulation of medical practices and state criminal sanctions for drug possession are historically matters of state police power, we must interpret any federal 758*758 preemption in these areas narrowly. (County of San Diego, supra, 165 Cal.App.4th at pp. 822-823.)
(15) Our Supreme Court has identified "four species of federal preemption: express, conflict, obstacle, and field. [Citation.] [¶] First, express preemption arises when Congress `define[s] explicitly the extent to which its enactments pre-empt state law. [Citation.] Pre-emption fundamentally is a question of congressional intent, [citation], and when Congress has made its intent known through explicit statutory language, the courts' task is an easy one.' [Citations.] Second, conflict preemption will be found when simultaneous compliance with both state and federal directives is impossible. [Citations.] Third, obstacle preemption arises when `"under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."' [Citations.] Finally, field preemption, i.e., `Congress' intent to pre-empt all state law in a particular area,'
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applies `where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress "left no room" for supplementary state regulation.' [Citation.]" (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935-936 [63 Cal.Rptr.3d 50, 162 P.3d 569], fn. omitted (Viva!).)
The first and the last of the foregoing categories do not apply here, given language in the CSA "demonstrat[ing] Congress intended to reject express and field preemption of state laws concerning controlled substances." (County of San Diego, supra, 165 Cal.App.4th at p. 819.) Specifically, section 903 of title 21 of the United States Code provides: "No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflictbetween that provision of this subchapter and that State law so that the two cannot consistently stand together." (Italics added.) With this language, Congress declined to assert express preemption in the area of controlled substances and directly foreswore field preemption (County of San Diego, at p. 819), leaving only conflict preemption and obstacle preemption as potential bases supporting the trial court's preemption ruling.
1. Conflict Preemption
Conflict preemption exists when "simultaneous compliance with both state and federal directives is impossible." (Viva!, supra, 41 Cal.4th at p. 936.) The city does not explain how any of the state law decriminalization provisions of the CUA or the MMPA create a positive conflict with federal law, so that it is 759*759 impossible to comply with both federal and state laws. A claim of positive conflict might gain more traction if the state required, instead of merely exempting from state criminal prosecution, individuals to possess, cultivate, transport, possess for sale, or sell medical marijuana in a manner that violated federal law. But because neither the CUA or the MMPA require such conduct, there is no "positive conflict" with federal law, as contemplated for preemption under the CSA. (21 U.S.C. § 903.) In short, nothing in either state enactment purports to make it impossible to comply simultaneously with both federal and state law.
(16) As we explained in City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 385 [68 Cal.Rptr.3d 656] (Garden Grove), "no conflict" arises "based on the fact that Congress has chosen to prohibit the possession of medical marijuana, while California has chosen not to." Simply put, "California's statutory framework has no impact on the legality of medical marijuana under federal law . . . ." (Ibid.; accord,Hyland v. Fukuda (9th Cir. 1978) 580 F.2d 977, 981 [state law allowing felons to carry guns not preempted by contrary federal law since "there is no conflict between" the two].) As we observed in Garden Grove, the high court's decision in Gonzalesdemonstrated the absence of any conflict preventing coexistence of the federal and state regimes since "`[e]nforcement of the CSA can continue as it did prior to the [CUA].'" (Garden Grove, at p. 385.) No positive conflict exists because neither the CUA nor the MMPA require anything the CSA forbids.
The city asserts, without explanation, that "[t]he requirement that cities, in effect, permit storefront dispensaries to operate within their boundaries positively conflicts with the CSA." It is true that California and the federal government have conflicting views of the potential health benefits of marijuana. But that does not mean the application of state and federal laws are in conflict. If state law in fact preempts thecity's ordinance—a question we have noted is not yet ripe in this proceeding, we discern nothing in the city's compliance with state law that would require the violation of federal law. The federal CSA does not direct local governments to exercise their regulatory, licensing, zoning, or other power in any particular way. Consequently, acity's compliance with state law in the exercise of its regulatory, licensing, zoning, or other
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power with respect to the operation of medical marijuana dispensaries that meet state law requirements would not violate conflicting federal law. And we see no reason to suppose state law preemption of the ordinance would require a city or its employees or agents to operate a medical marijuana dispensary or otherwise engage in conduct prohibited by the CSA. The fact that some individuals or collectives or cooperatives might choose to act in the absence of state criminal law in a way that violates federal law does not implicate the city in any such violation. As we observed in Garden Grove, governmental entities do not incur aider and abettor or direct liability760*760 by complying with their obligations under the state medical marijuana laws. (Garden Grove, supra, 157 Cal.App.4th at pp. 389-390; accord, County of San Diego, supra, 165 Cal.App.4th at p. 825, fn. 13.) Consequently, we conclude the city'spositive conflict argument is without merit.
2. Obstacle Preemption
(17) Obstacle preemption does not support the trial court's preemption determination either. A state enactment becomes a nullity under obstacle preemption when, "`"under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."' [Citations.]" (Viva!, supra, 41 Cal.4th at p. 936.) If the purpose of the federal act "' cannot otherwise be accomplished—if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect—the state law must yield to the regulation of Congress within the sphere of its delegated power.'" (Crosby, supra, 530 U.S. at p. 373, italics added.)
In County of San Diego, the court concluded the MMPA's "identification card laws do not pose a significant impediment to specific federal objectives embodied in the CSA" because the CSA's purpose "is to combat recreational drug use, not to regulate a state's medical practices." (County of San Diego, supra, 165 Cal.App.4th at pp. 826-827, citing Gonzales v. Oregon (2006) 546 U.S. 243, 272-273 [163 L.Ed.2d 748, 126 S.Ct. 904] [construing CSA as a "statute combating recreational drug abuse" rather than as an "expansive" interposition of "federal authority to regulate medicine"].)
Here, the city identifies section 11362.775, enacted by the MMPA, as the specific state statutory obstacle triggering federal preemption. According to the city, this section "poses a significant impediment" to the CSA's purpose of combating recreational drug use because it "is being abused by persons and groups to open storefront dispensaries for profit." (Italics added.) As noted ante, however, the MMPA bars individuals and any collective, cooperative, or other group from transforming medical marijuana projects authorized under the MMPA into profiteering enterprises. (§ 11362.765, subd. (a) ["nothing in this section shall authorize . . . any individual or group to cultivate or distribute marijuana for profit"].)
(18) The city further explains "[t]he `obstacle' to federal goals presented by Section 11362.775 is the creation of the exemption for collectives," which is "being abused" "by allowing the diversion of `medical' marijuana to those not qualified to use it." But thecity's complaint is thus not that state law amounts to an obstacle to federal law, but that "abuse[]" or violation of state law does. These circumstances call for enforcement of the state law, not its 761*761 abrogation. Upholding the law respects the state's authority to legislate in matters historically committed to its purview. (Boultinghouse, supra, 134 Cal.App.4th at p. 625.)
(19) In any event, obstacle preemption only applies if the state enactment undermines or conflicts with federal law to such an extent that its purposes "`cannot otherwise be accomplished ....'" (Crosby, supra, 530 U.S. at pp. 373-374 [holding Mass. law restricting purchase of goods or services from companies doing business in Burma conflicted with federal legislation delegating control of economic sanctions to the President].) Preemption theory,
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however, is not a license to commandeer state or local resources to achieve federal objectives. As Judge Kozinski has explained: "Thatpatients may be more likely to violate federal law if the additional deterrent of state liability is removed may worry the federal government, but the proper response—according to New York and Printz—is to ratchet up the federal regulatory regime, notto commandeer that of the state." (Conant v. Walters (9th Cir. 2002) 309 F.3d 629, 646 (conc. opn. of Kozinski, J.), original italics.)
On the facts presented in County of San Diego, the court noted "the unstated predicate" of the obstacle preemption argument was "that the federal government is entitled to conscript a state's law enforcement officers into enforcing federal enactments, over the objection of that state, and this entitlement will be obstructed to the extent the identification card precludes California's law enforcement officers from arresting medical marijuana users." (County of San Diego, supra, 165 Cal.App.4th at p. 827.) The court rejected the argument, as follows: "The argument falters on its own predicate because Congress does not have the authority to compel the states to direct their law enforcement personnel to enforce federal laws. In Printz v. United States(1997) 521 U.S. 898 [138 L.Ed.2d 914, 117 S.Ct. 2365], the federal Brady Act purported to compel local law enforcement officials to conduct background checks on prospective handgun purchasers. The United States Supreme Court held the 10th Amendment to the United States Constitution deprived Congress of the authority to enact that legislation, concluding that `in [New York v. United States (1992) 505 U.S. 144 [120 L.Ed.2d 120, 112 S.Ct. 2408] we ruled] that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.' [Citation.]" (County of San Diego, at pp. 827-828.)
Just as the federal government may not commandeer state officials for federal purposes, a city may not stand in for the federal government and rely 762*762 on purported federal preemption to implement federal legislative policy that differs from corresponding, express state legislation concerning medical marijuana. Tilehkooh, supra, 113 Cal.App.4th 1433 is instructive. There, the court held the CUA "provides a defense to a probation revocation based on marijuana possession or use." (113 Cal.App.4th at p. 1445.) The People argued the defendant could not raise the CUA as a defense to revocation of his probation based on marijuana possession, citing the probation condition that the defendant obey not only the laws of California, but also the laws of the United States. The court, however, was not persuaded. It explained, "The People have misunderstood the role that the federal law plays in the state system. The California courts long ago recognized that state courts do not enforce the federal criminal statutes. `The State tribunals have no power to punish crimes against the laws of the United States, as such. The same act may, in some instances, be an offense against the laws of both, and it is only as an offense against the State laws that it can be punished by the State, in any event.' [Citations.]" (113 Cal.App.4th at pp. 1445-1446, fn. omitted.)
Continuing, the Tilehkooh court reasoned, "Since the state does not punish a violation of the federal law `as such,' it can only reach conduct subject to the federal criminal law by incorporating the conduct into the state law.[7] The People do not claim they are enforcing a federal criminal sanction attached to the federal marijuana law. Rather, they seek to enforce the state sanction of probation revocation which is solely a creature of state law. [Citation.]" (Tilehkooh, supra, 113 Cal.App.4th at p. 1446.) But as Tilehkooh explained, "The state cannot do indirectly what it cannot do directly. That is what it seeks to do in revoking probation when it cannot punish the defendant under the criminal law. [¶] ... [¶] California courts do not enforce the federal marijuana possession laws when defendants prosecuted for marijuana possession have aqualified immunity under [the CUA]. Similarly, California courts should not enforce federal marijuana law for probationers who qualify for the immunity provided by [the CUA]." (Id. at pp. 1446-1447.)
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(20) These principles apply a fortiori to a city—a creature of the state. As we explained in Garden Grove, the city there could not "invoke and rely solely on federal law to justify a particular sanction (i.e., the destruction of Kha's [medical marijuana]) when Kha's conduct was consistent with, and indeed sanctioned under, state law." (Garden Grove, supra, 157 Cal.App.4th at p. 380.) "Applying the reason[ing] ofTilehkooh," we concluded that "judicial enforcement of federal drug policy is precluded in this case because the act in question—possession of medical marijuana—does not constitute an offense against the laws of both the state and the federal governments." (Ibid.) 763*763 Quoting Tilehkooh, we explained that "[b]ecause the act is strictly a federal offense," the city had "`"no power to punish [it] as such."'" (Garden Grove, at p. 380, original italics.)
The same is true here. The city may not justify its ordinance solely under federal law (Garden Grove, supra, 157 Cal.App.4th at p. 380; Tilehkooh, supra, 113 Cal.App.4th at pp. 1445-1446), nor in doing so invoke federal preemption of state law that may invalidate the city's ordinance.[8] The city's obstacle preemption argument therefore fails.
(21) Thus, the trial court erred when it sustained the city's demurrer on the basis of federal preemption. A petition for a declaratory judgment is itself a valid cause of action, and not merely a request for relief on other grounds. (Code Civ. Proc., § 1060.) Because the city has identified no defect on the face of plaintiffs' complaint concerning their cause of action for declaratory judgment that the city's ordinance is preempted by state law, the city's demurrer fails and we therefore reverse and remand for proceedings consistent with this opinion.
E. The Trial Court Properly Sustained the City'sDemurrer to Plaintiffs' Unruh Civil Rights Act Claim
Plaintiffs contend the trial court erred by sustaining the city's demurrer to their second cause of action, in which they claimed the city's ordinance severely restricting or banning medical marijuana dispensaries, under threat of criminal prosecution, violated civil rights protected by the Unruh Civil Rights Act. (See Civ. Code, § 51, subd. (b); see generally 8 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law, § 898(2), p. 376.) The act's purpose "is to compel recognition of the equality of all persons in the right to the particular service offered by an organization or entity covered by the act." (Curran v. Mount Diablo Council of the Boy Scouts (1983) 147 Cal.App.3d 712, 733 [195 Cal.Rptr. 325].) "Emanating from and modeled upon traditional `public accommodations' legislation, the Unruh Act expanded the reach of such statutes from common carriers and places of public accommodation and recreation, e.g., railroads, hotels, restaurants, theaters and the like, to 764*764 include `all business establishments of every kind whatsoever.'" (Marina Point, Ltd. v. Wolfson(1982) 30 Cal.3d 721, 731 [180 Cal.Rptr. 496, 640 P.2d 115].)
Specifically, the act's operative provision, Civil Code section 51, subdivision (b), provides: "All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."
(22) Our task in examining any enactment "is to ascertain and effectuate legislative intent. [Citations.] We turn first to the words of the statute themselves, recognizing that `they generally provide the most reliable indicator of legislative intent.' [Citations.] When the language of a statute is `clear and unambiguous' and thus not reasonably susceptible of more than one
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meaning, `"`"there is no need for construction, and courts should not indulge in it."'"' [Citations.]" (People v. Gardeley (1996) 14 Cal.4th 605, 621 [59 Cal.Rptr.2d 356, 927 P.2d 713].)
(23) The trial court correctly concluded the Unruh Civil Rights Act does not apply to the city's enactment of legislation. In Burnett v. San Francisco Police Department(1995) 36 Cal.App.4th 1177 [42 Cal.Rptr.2d 879] (Burnett), the court observed: "By its plain language, the Act bars discrimination based on `sex, race, color, religion, ancestry, national origin, or disability' by `business establishments.' [Citation.] Nothing in the Act precludes legislative bodies from enacting ordinances which make age distinctions among adults." (Id. at pp. 1191-1192, original italics.) Because a cityenacting legislation is not functioning as a "business establishment[]," we conclude the act does not embrace plaintiffs' claims against the city for discrimination based on a disability or medical condition calling for the use of medical marijuana.
(24) A federal district court, in Gibson v. County of Riverside (C.D.Cal. 2002) 181 F.Supp.2d 1057, 1093 (Gibson), has disagreed with Burnett on grounds that the Unruh Civil Rights Act forbids discrimination "`in all business establishments'" and not just by "`business establishments.'" We are not persuaded. First, the decisions of the lower federal courts are not binding precedent (Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, 1715 [1 Cal.Rptr.3d 328]), particularly on issues of state law. Second, while it is true that legislation may not immunize a business from Unruh Civil Rights Act claims for discrimination that occurs in that establishment (see Gibson, at p. 1093, relying onOrloff v. Los Angeles Turf Club (1951) 36 Cal.2d 734, 737 [227 P.2d 449]), it does not765*765 follow that enacting legislation, as here, transforms the governmental entity into a "business establishment[]" that is subject to a lawsuit under the express terms of the act.
Because the terms of the Unruh Civil Rights Act expressly apply to "business establishments," we see no room for its application to the city's legislative action here. Accordingly, we agree with Burnett and disagree with Gibson. The act does not apply to the city in the circumstances here, and the trial court therefore properly sustained the city's demurrer to plaintiffs' second cause of action.
III
DISPOSITION
We affirm the trial court's order concluding plaintiffs failed to state an Unruh Civil Rights Act civil rights cause of action, but reverse the judgment of dismissal and reinstate plaintiffs' cause of action seeking declaratory judgment on whether the CUA or the MMPA preempt the city's ordinance. Each side shall bear its own costs for this appeal.
Rylaarsdam, Acting P. J., and Fybel, J., concurred.
[1] All further statutory references are to the Health and Safety Code unless otherwise specified.
[2] As noted in Mentch, California is not alone, nor an outlier among the states in decriminalizing medical marijuana; at least 12 states have done so despite the continuing federal ban, and the majority of those states have established a more lenient threshold for creating an authorized primary caregiver relationship. (See Mentch, supra, 45 Cal.4th at p. 287, fn. 8.)
[3] In Ross, the Supreme Court concluded the CUA did not prohibit an employer from terminating an employee for using medical marijuana.
[4] City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153 [100 Cal.Rptr.3d 1], on which the city relies, did not involve an ordinance like Anaheim's, which potentially contradicts sections 11362.765 and 11362.775 by making the use of property a crime "solely on the basis" of otherwise lawful medical marijuana activity. Thecity also relies on City of Corona v. Naulls (2008) 166 Cal.App.4th 418 [83 Cal.Rptr.3d 1], which did not involve or discuss section 11362.765 or 11362.775, nor
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section 11366, 11366.5, or 11570. Additionally, unlike the scenario here, both Kruse and Naulls involved plaintiffs that ignored or circumvented established procedures for obtaining a business license, instead of seeking a declaratory judgment. And both cases involved temporary moratoriums rather than the permanent dispensary ban alleged here. Again, cases are not determinative for issues not considered.
[5] Observing that section 11570 "deems `[e]very building or place used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away any controlled substance' to be a public nuisance," counsel for Tehama County, as amicus curiae for the city, argues: "At very most, the MMPA's exclusion ofqualified persons from [s]ection 11570 would preempt an ordinance that similarly attempted to proscribe every premises upon which qualified medical marijuana activities take place." (Original italics.) According to counsel, "Anaheim's Ordinance No. 6067 does no such thing. Rather, the Ordinance prohibits a certainmanner of conducting such activities within City limits, specifically by regulating the number of persons that may engage in such activity upon a single premises. (See Anaheim Mun. Code, § 4.20.020 [defining a regulated dispensary as a `facility or location where medical marijuana is made available to and/or distributed by or to three or more' qualified persons].)" (Original italics.)
The city views its ordinance as a complete ban on typical medical marijuana dispensaries. A ban accomplished by local legislation is lawful, according to the city, because "[t]he Legislature, in adopting the MMP[A], did not exempt qualified persons from a[ll] criminal or civil liability, only specified criminal statutes." The city also argues that the immunities provided in section 11362.775 apply, by the terms of the statute, only to collective or cooperative "cultivat[ion]" of medical marijuana. Conceivably, the agricultural and group nature of such an undertaking might heighten a local government's interest in regulating or banning such uses, particularly in a dense urban environment. If the city is correct, however, that the MMPA authorizes combined efforts only for cultivating marijuana and not for activities such as storing or dispensing it away from the cultivation site (compare § 11362.775 with § 11362.765), the absence of a collective or cooperative means to distribute medical marijuana to qualified persons may suggest the Legislature intended nearby access through widespread cultivation locations. On this view, local authorities would have grounds to ban typical dispensaries if they lack a role in the actual cultivation process, but perhaps not bar altogether, for example, cooperative marijuana gardens or collective cultivation sites where qualified patients or their primary caregivers could obtain their medication.
[6] Accordingly, we must deny as moot in this appeal plaintiffs' request for judicial notice concerning the legislative history of the MMPA.
[7] We note such incorporation is still subject to analysis under the Constitution's Supremacy Clause.
[8] In People v. Moret (2009) 180 Cal.App.4th 839 [104 Cal.Rptr.3d 1], a concurring justice distinguishedTilehkooh based on the Legislature's subsequent enactment of section 11362.795, amending the MMPA. Section 11362.795, by specifying a defendant may seek confirmation from the trial court that he or she is allowed to use medical marijuana on probation, suggests the trial court may impose a no-use probation condition, despite the CUA and MMPA and independent of federal law. (Moret, at pp. 853-857.) This conclusion, however, does not undermine the rationale of Tilehkooh, but instead demonstrates that section 11362.795 operates as a matter of state law and not federal preemption. Section 11362.795 has no bearing on the city's reliance on federal preemption to obtain demurrer.
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