WILLIAM R. McPIKE Bar No.: 95869 As of Dec 9, 2003 this has NOT been filed anywhere.
36360 Peterson Road Auberry, CA 93602
(559) 841-3366 Fax 841-5343
Attorney for petitioners:
Gary and Paula Ainsworth
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In the Superior Court of California
County of Fresno
Gary Ainsworth, and Paula Ainsworth,
Petitioners
v
Clovis police,
Fresno county prosecutors
Superior court, dba People of California,
Respondents
Case No.: F03906522-8
Lawyerdude’s document #6110
Petition for Writ of Mandate and Prohibition.
To all parties and counsel:
1. Defendants move for Writ of Mandate/prohibition for relief from prosecution. Defendants request that the court determine the law under the CANON of “pari materia,” and to determine:
a. That the criminal counts herein have no application and that defendants’ prosecution is jurisdictionally prohibited.
b. That prosecution be stopped and the defendants be restored to their pre-arrest status. That issues of law are proper for court determination.
c. That as a matter of law, defendants had known status [physician’s recommendations] to use marijuana as medicine. This status is determined solely by a physician’s recommendation or approval.
d. The recommendation is the exonerating fact and negates probable cause to believe any criminal exists.
Table of Contents:
Table of Authorities Cited herein:
Memorandum of Authorities in support of Petition.
H&S 11362.5 supersedes H&S 11358
Applying Pari Materia to H&S 11362.7 et seq
Are qualified persons entitled to rely on H&S 11362.5?
Table of Authorities Cited herein:
Prior to the arrest of defendants these recommendations were disclosed to and reviewed by the Clovis Police, who referred to them:
“The paperwork was in the form of a medical description for both his [Gary Ainsworth] and his wife’s ailments and the doctor
recommendation that both he and his wife use marijuana to ease their pain. ... although the documentation looked official it still did not allow him to possess or grow marijuana. It was my impression that Ainsworth did have marijuana in his backyard which was supported by his doctor ...”
Here the officer’s conclusion is that the doctor’s recommendations do not allow a person to possess or grow marijuana. Under 11362.5, there is only one way to determine the status of a qualified patient, and that determination is made by a doctor’s recommendation. Thus the officer’s conclusion about the effect of a “doctor recommendation,” which “documentation looked official,” was not legally correct. See H&S 11362.5 and the MOWER decision.
“Officer Weaver advised this was the location of a marijuana medical grow. He had viewed their court and
medical paperwork, which states thaey can grow marijuana...” Once in the backyard I noticed between 6 and 7 ... marijuana
plants ... I gave them advise on how to secure their medical grow, in a locked greenhouse against their house.”
Note that if this was allegedly an illegal cultivation under 11358, [no recommendation] then this officer would have arrested defendants under “plain view” instead of advising on how to secure the medical grow. The report indicates that the police had discussed the matter, the medical documentation and the location of the marijuana medical grow. The Officer by giving advise on how to secure the “medical grow” shows that there was no reasonable cause to believe that defendants were involved in any criminal activity.
Yet defendants were later arrested and are being prosecuted where the exonerating fact is disclosed by the police reports. Therefore it is incumbent on the court to determine the issues of law, application and to allow defendants to get out of this case.
In view of the police statements no judge or jury can determine beyond a reasonable doubt
that defendants were involved in any criminal activity.
1. Defendants are husband and wife who live in their home, in the City of Clovis,
Fresno, County.
2. Both defendants possess “written” physician’s recommendations to use marijuana for their diagnosed medical conditions. H&S 11362.5 requires that for a person to be exempt from criminal application of H&S 11357 and 11358 and have immunity from criminal prosecution that the person must first obtain an oral of written recommendation from a licenced medical Dr. or osteopath. Thus defendants complied with 11362.5 requirements and had immunity status [from 11358] months prior to their [felony] arrest for cultivation of marijuana in alleged violation of 11358.
3. Defendants had been the victims of repeated trespasses to their backyard and had
called the Clovis Police to report the crimes and seek police protection of their home and property. The dates when the police responded were on or about: 9/9/03 and 9/16/03.
4. On 9/9/03 officer Weaver responded to the defendants call about six subjects jumping the fence entering defendants’ backyard. Officer Weaver’s report is dated 9/10/03. In said report he reports: [page 3] “I explained to [Gary] Ainsworth why I was there and asked him if he was growing marijuana in his backyard.” “...[he] then stated, ‘Before I can answer that I would have to talk to my attorney.’ I explained ... that based on his response I had reason to believe that he was growing marijuana ... and asked permission to check the backyard ... he declined... Ainsworth stated ... ‘Per Proposition 212, I am allowed to cultivate marijuana for medical reasons and that if I am cultivating marijuana that was the sole purpose. I explained to Ainsworth that although Proposition 212 was passed by the California voters, it was illegal both in California and in the United States to cultivate marijuana in any form. Ainsworth explained that he documentation from is doctor ... that allowed him to have marijuana ... I asked Ainsworth to retrieve the paperwork from inside the house so I could view it.
Page 4: The paperwork was in the form of a medical description for both his ailments and his wife’s ailments and the doctors recommendation that both he and his wife use marijuana to ease their pain. I explained to Ainsworth that although the documentation looked official it still did not allow him to possess or grow the marijuana.
[Note, this is a mistake of law. Ignorance of the law is never an excuse.] It was my impression that Ainsworth did have marijuana in his backyard which was supported by the documentation from his doctor .... I contacted narcotics officer Keith Havlik, regarding the situation ...”
5. On 9/16/03 Officer Mejia arrived at defendants’ home on their demand for protection. His report of 9/17/03 page 1: “Prior to my arrival ... Officer J. Weaver advised me that this was the location of a marijuana medical grow. He had viewed their court and medical paper work, which states they can grow marijuana, ... [How did Officer Weaver arrive at his NEW conclusion about the medical law, that the paperwork states they can grow marijuana?] ... and noticed several marijuana plants ... [This is plain view and if the Officer was a witness to the commission of a felony, he would have immediately arrested defendants.] Once in the backyard I noticed between 6 and 7 very mature ... marijuana plants ... They have even been sleeping in the backyard to try to catch the teenagers. ... stealing their medical marijuana. I gave them some ideas on how to secure their medical grow, in a locked green house against their house.”
6. Statement of Probable Cause [for issuance of search warrant] by K. Sparrow:
Page 2:18-19, “Paula Ainsworth who told him that they were growing marijuana for medical reasons. Officer Mejia observed 6 to 7 marijuana plants ... growing in the back yard.”
7. Report of Officer K. Sparrow dated 9/17/03, page 3: “... I advised I had a search warrant for the residence and provided them with a Notice of Service.”
Page 4: “I asked Paula if she had any medical problems ...” “... but nothing eases the pain like marijuana. She advised me that she and her husband are only growing marijuana for medical reasons.” I asked her in regards to her marijuana recommendation ...” “...I asked her husband Gary, ... so I could speak to him and ask him medical questions.” “I asked him if he uses marijuana for medical purposes only and he stated that he did.” I asked him who he received his medical recommendation from and he said from ...
[page 5] “He advised that the marijuana helped him with the pain and helped restore his appetite.”
[page 6] “I read Paula her Miranda rights. I read Gary his his Miranda rights ...” Both defendants were then arrested and thereafter bailed out of jail. The bail is outstanding.
8. ON 9/18/03 an official press release from the Clovis Police Department is made stating in the last sentence: “Although medicinal marijuana may be legal in the State of California, Fresno County has a no tolerance cultivation policy.”
9. Defendants were never served any search warrant. See Clovis PD Supplemental Report dated 9/23/03. Officer Havlik [incorrectly] claims that “... Mr. Ainsworth wanted a copy of the search warrant... ... identifying himself as William McPike an attorney. Mr. McPike told me he wanted a copy of the search warrant ... I told Mr. McPike that if he attended law school he should know the procedures for obtaining paperwork from the Police Department. ... that we would respond to court orders for his requests related to the case.” See Declaration of William McPike, where this report of Officer Havlik is disputed
as mostly fiction. Although the search warrant was requested, Officer Havlik denied a copy of the search warrant without a court order. Next was the records request letter addressed to the Chief of Police. McPike explained the contents of the letter and its purpose. Officer Havlik said the letter meant nothing and that he was going to file it. McPike asked if that meant that the Chief would not see the letter addressed to him. Officer Havlik stated, “Its going into the file.”
10. DA Donald Penner called McPike and asked about his records request for policies to train and implement on medical marijuana laws. He stated that he didn’t know if any complaint was being filed in the Ainsworth case. He said the records request would probably be answered by Robert Ellis. [See Declaration of McPike.]
11. Undated and unsigned complaint filed against the Ainsworths for 11358.
12. First amended complaint filed against Ainsworths with an add on count for possession of a firearm in the commission of the 11358 felony.
13. Petition for writ of habeas corpus filed. Order on writ issued 10/23/03 and served on 11/3/03. Order states that other adequate legal remedies exist and mentions writs of mandate and prohibition.
14. Demurrer filed for hearing on 12/17. 11/25/03 Amended Demurrer and Motion to disqualify DA under PC 1424 filed and served.
15. Thus defendants are not in custody due to tender of bail.
16. Defendants contend that due to all the reference and foreknowledge of their medical recommendations, exempt status and conditions, there was no probable cause
for the search warrant and arrest. But for the local policy, law enforcement ignorance of the law and failure to recognize and enforce 11362.5 rights, they would never have been arrested. As a matter of law, 11358 does not apply to status persons.
17. Defendants are charged with H&S 11358 which states: “Every person who ... cultivates ... any marijuana ... EXCEPT AS OTHERWISE PROVIDED BY LAW...” [Emphasis ours.] H&S 11362.5 states that 11358 “shall not apply...” So we have this conflict in law over the applicable statute which is a continuing public interest issue. It is clear that 11358 contains a “yielding” provision. The provision in 11358 states: except as
otherwise provided by law. 11362.5 provides that 11358 “shall not apply,” so this is a statutory provision that provides otherwise by law. Thus prosecution is prohibited, see
11362.5 (b)(1)(B) which is implicit in subd. (d).
18. The MOWER decision only compared laws. See original page 26: “The conclusion is supported by a comparison ...” and thus they never used the ‘merger of statutes” required under the canon of “pari materia.” Construing similar statues as one to determine harmony in the body of law, requires an overlay of the statutes which is distinguished from a comparison. It is obvious that 11362.5 is a law that provides “otherwise” than criminal provisions of 11358. This yielding language when merged with the language in 11362.5 that 11358 “shall not apply” and shall not be subject to prosecution” [for 11358] can only be determined in one way to be in harmony with the body of law. The conclusion is, as to status persons, criminal application of 11358 due to the controlling statutory provisions in 11362.5, is impossible.
19. The court is the only proper power to determine the law, and its determination under the rules of pari materia is what defendants are requesting. Since application of 11358 is impossible under 11362.5 The issues herein raised, are those that concern an important and continuing public interest. For this “continuing public interest” reason, this court should decide these issues and determine that status person is not subject to 11358, and is not subject to prosecution. See Legislative Counsel’s Digest and findings to support the enactment of H&S 11362.7, below. Reports from across the State show that law enforcement has had problems implementing H&S 11362.5. This case is merely one of these declared implementation problems.
20. The Court is requested to take judicial notice of the law, register of actions and the reference to the documents and the quotes therefrom, cited herein above.
Memorandum of Authorities in support of Petition.
H&S 11362.5 supersedes H&S 11358
1. See Fresno County Superior Court glossary of terms, the term “abrogate.” “To destroy or annul a former law by legislative act or constitutional authority.” In the instant action, Count H&S 11358 does not apply, (and the companion count tacked on does not apply) due to the fact that H&S 11362.5 has abrogated 11358. While this may never be obvious by looking at the statutes separately, it becomes clear under the old rule of “pari materia.” Pari materia requires that statutes affecting the same subject matter or thing, must be read as one statute to determine the legislative intent and effect on the other statute(s) with the specific purpose of bringing harmony to the body of law. Both 11358 [hereinafter ‘58] and 11362.5 [hereinafter ‘62.5] affect the same subject matter and thing, i.e., marijuana. ‘58 criminalizes marijuana whereas ‘62.5 decriminalizes marijuana. How can these conflicting statutes and purposes be reconciled with harmony into one application and one body of law? Our California Supreme Court analyzed the MOWER case to 11362.5 by comparison and did not use the “merger of statutes” required under pari materia. We request a new construction using the legal tool of pari materia to merge the statutes into one statue and then determine how they operate in harmony. For example 11358 states in pertinent part: “ ... except as otherwise provided by law,...” At the time 11358 was enacted to criminalize the cultivation of marijuana there was no other exception known to California law. there was no “otherwise” provided by the law. However it is clear that this language is intended as language that “yields” application of 11358, [where] “otherwise provided by law.” Thus, with merger of these statutes we find that there this is harmony in the body of law. Both statutes are in harmony as 11358 yields to 11362.5. A statutory purpose for the enactment of 11362.5 is to control 11358. There can be no dispute about the merged construction of these statutes which cover the same subject and thing. Only when considered separately, do they ring with confusion.
2. However due to enactment of 11362.5, the “otherwise” exception to 11358 was created. 11362.5 provides that 11358 “shall not apply” to the status person. There is only one way for a person to obtain this status. Status is obtained by an oral or written physician’s recommendation or approval to use marijuana as medicine. See 11362.5 and the MOWER decision. Therefore while these statues appear to be in conflict under pari materia they make perfect sense and are actually in harmony. A comparison will not achieve the required understanding to resolve this important continuing public interest and this conflict. Only the merger analysis under pari materia achieves harmony in the body of law. However any reasonable analysis using pari materia rules will conclude that 11358 is abrogated to 11362.5, both by the controlling language in 11362.5 and the 11358 yielding language, “except as otherwise provided by law.” 11362.5 provides the “otherwise” statutory language to control 11358. 11362.5 abrogates 11358 as it nullifies and prohibits the application of 11358 to the status person. Criminal prosecution for 11358 is prohibited under 11362.5. Possession and cultivation of marijuana under the conditions stated in 11362.5 is simply not criminal. It is no different than the possession and acquisition of any drug with a physician’s prescription. The recommendation was compared to a prescription in MOWER. Thus we questing the arrest and prosecution under the statements in the police reports, and request that this court take appropriate measures to order the defendants back into their pre-arrest status and liberties.
II.
CANON OF CONSTRUCTION IS “PARI MATERIA” ALSO “MERRILL’S RULE”
3. The so called “Merrill Rule” is a canon that requires that similar statutes be combined and read as if ONE statute. The result from a pari materia focus, is the court’s findings of law when these statues are interpreted as ONE statute. Only by combining related statutes and reading them as one statute, can any harmony and sense result from (possibly conflicting) acts purporting to affect the same subject matter or thing. The court is required to determine the law and find from this construction that the statutes operate in a harmonious manner. Pitting status person against 11358 charges where 11362.5 has application is wrong. 11362.5 plainly states that it ‘ensures” and that it is a “right.” The Legislature had acknowledge the reports of problems from across that state that ... law enforcement have not provided implementation of 11362.5 as the voters intended. Thus this issue and problem between application of 11362.5 and 11358, is legislatively recognized as a continuing public interest issue. Pari materia is a valid function of the court which will resolve this issue once and for all. This merger is distinguished from merely “comparing” different statutes. In comparison, separate statutes are never deemed as one statute. This comparison is the problem we now suffer from, as law enforcement places 11358 on one side of the ring, and considers that 11362.5 has lost the fight and is not even a contender. A merger analysis will correct this State issue, which is a major law enforcement problem, once and for all. It is well settled that courts, when reading within a single statute, are required to give effect to all provisions, subdivisions, and subparts to give harmony to the statute. Pari materia uses this same analysis between statutes.
4. In People v. MOWER (2002) 28 Cal. 4th, 457, our State Supreme Court gave full effect to ‘62.5 subd. (d) from a reference in subpart (b)(1)(B). This was reading all parts of the same statute and recognizing how they work in harmony. They stated [original page 14]: “By parity of reasoning, we now hold that the prohibition against
‘criminal prosecution’ ... (11362.5, subd. (b)(1)(B)) that is implicit
in section 11362.5(d) cannot be given its proper effect unless it
too [the prohibition] is recognized as a proper basis for setting
aside an indictment or information.”
Thus, while the prohibition against prosecution is never mentioned in subd. (d), the Court
in reading and giving effect to all parts, finds the prohibition against prosecution implicit in subd. (b)(1)(B) must also be found applicable in subd. (d). [In fact it must be found applicable throughout ‘62.5.] This construction is similar to pari materia, except that pari materia uses this process by combining two or more statutes and looking at them as one statute to find their overall intent and harmony in the body of law. Combining 11362.5 and 11358 for purposes of finding harmony in the body of law will end this confusion.
4. Pari materia construction of ‘62.5 when merged with the earlier ‘58; shows that ‘58 has omitted any exception to criminalize the cultivation of marijuana. No other statute can be found that effects ‘58, until 1996 with the enactment of ‘62.5. The only reasonable, logical and common sense conclusion is; that a purpose for enactment of ‘62.5 was to effect ‘58. ‘58 by statutory purpose, left open the possibility that some other statutory provision might otherwise contol application of 11358. The court must give purpose to this specific language and to the legislative purpose and effect of this “otherwise” provision. Any assertion that the ‘62.5 purpose was not to effect ‘58 is illogical and cannot be sustained. Pari materia requires that the new ‘62.5 provisions (not in existence when ‘58 was enacted), be determined in harmony with ‘58. Both statutes purport to effect the same subject matter, so what is the correct application. Which of these two statutes controls the other, if that is determined to be an effect? It is ‘62.5, that controls ‘58. ‘62.5 states that ‘58 “shall not apply,” and ‘58 states except as otherwise provided by law. This is harmony when pari materia construction “mergers” or “overlays” these statutes as one.
6. Let’s examine the ‘58 application issue, in view of ‘62.5's particular stated purpose of effecting ‘58. In other words, “How does ‘62.5 effect ‘58?” 62.5 is a novel statute adopted by the people from their initiative legislation Proposition 215. Thus it is the “will” of the people to decriminalize marijuana possession and cultivation for status persons. It is the will and intent of the people that ‘58 shall not apply to the status person. ‘58 itself provides that it applies “except as otherwise provided by law.” 11362.5 provided the “otherwise” provision. Thus one, using the Superior Court of Fresno County glossary of terms, may apply “abrogate” to compare how ‘62.5 effects ‘58. Abrogate is “To destroy or annul a former law by legislative act or constitutional authority.” Here the authority is the people’s authority to make law by the initiative process, so ‘62,5 is an act created by constitutional authority. While it does not destroy the existing ‘58, it annuls the application of this law by creating the “otherwise” exception to application of ‘58, in all ‘62.5 situations. Thus while ‘58 is still current law, it has been annulled from application in all ‘62.5 status cases. ‘58 is not annulled in non-status fact situations. In status cases it is not only annulled from application, but ‘62.5 bars the prosecution of this status class of person based on a ‘58 charge. 11362.5 provides the “otherwise.” Criminal application of ‘58 has been annulled (to the extent that it shall not apply) due to the enactment and application of ‘62.5 to the status person. No status person is subject to the yielded ‘58 provisions and they are simply not subject to criminal prosecution under ‘58. A ‘62.5 status person is not engaged in any conduct that can be defined as a criminal offense and that can lead to criminal penalty. Thus no reasonable person can determine any other construction of these two statutes that will be in harmony.
7. “Where two acts in pari materia are construed together, and one contains
provisions omitted from the other, the omitted provisions will be applied
in the proceeding under the act not containing such provisions, where not
inconsistent with the purposes of the act.” (59 C.J. 1050.)
Here, pari materia requires that the provisions omitted from or non-existent in ‘58 (and those created by enactment of ‘62.5) must be provided to ‘58 from ‘62.5. The ‘58, non-existent provisions (of ‘62.5 that decriminalize marijuana) will be applied from the more recently enacted ‘62.5. It is not inconsistent to the harmony of either act, to apply the ‘62.5 provisions that decriminalize the cultivation of marijuana. This does not nullify the purpose and criminal application of ‘58, in non-status fact situations. The other side of the coin is
that ‘58 has no purpose nor application in ‘62.5 status cases and is barred from all application in ‘62.5 cases. We offer this analysis as one which is reasonable. It gives effect and harmony to both statutes where the statutes appear to be in conflict.
III.
WHAT IS THE PURPOSE AND THE PROBLEMS IN ENFORCING 11362.5
8. “Every statute should be construed with reference to the whole system of
law of which it is a part so that all may be harmonized and have effect.
Legislative intent may also be gleaned from consideration of the history
and purpose of enactment, the previous state of legislation on the subject,
and other statutes in pari materia.” (People v. Clark (1992)10 C.A. 1259,)
We discuss the legislative intent about ‘62.5, in the legislative analysis of SB420, now H&S 11362.7, et. seq. Briefly, the legislature made its findings and declaration about ‘62.5, in the Legislative Counsel’s Digest. This finding is tantamount to a court’s findings.
“Section 1. (a) The Legislature finds and declares all the following:
(1) On Nov. 6, 1996, the people of the State of California enacted the
Compassionate Use Act of 1996 ... in order to allow ... marijuana for
medical purposes without fear of criminal liability under ... 11357
and 11358 ...
(2) However, reports from across the state have revealed problems ...
of law enforcement officers to enforce its provisions as the voters
intended and, therefore have prevented qualified patients ... from
obtaining the protections afforded by the act.” [All emphasis ours.]
Thus this Legislative findings are consistent with the instant case. The legislature has spoken about the purpose and intent of the ‘62.5 act which is stated as “allow[ing] marijuana for medical purposes without fear of criminal liability under ... ‘57 and ‘58 ...” This finding can be added or merged into the court’s MOWER decision. Thus we have 2 branches of government speaking about the purpose and people’s intent for enacting ‘62.5.
10. Law enforcement has spoken by denying implementation and enforcement of
11362.5. However law enforcement cannot determine which laws to enforce and which to deny. Again the legislature’s findings support the fact that ‘62.5 is to protect the status person and to abrogate ‘58 to the extent that ‘58 would, by application, operate against the ‘62.5 status person. In (2) of the finding, our legislature tells us about the [nightmare] problems reported from across the state. The source of these problems is the third branch of the sovereign peoples’ government. The reported problem is that law enforcement has had difficulty in implementing the will of the people in the act of 1996. Law enforcement has had difficulty in enforcing the provisions of ‘62.5. In fact Fresno County is part of this problem as it has no ‘62.5 training or implementation policy. Fresno County law enforcement has failed to implement the provisions of 11362.5.
11. The defendants experience with law enforcement refusing to recognize their
status and telling defendants that the recommendations give them no right to possess or grow marijuana is a perfect case study of this law enforcement problem. Clearly recommendations do grant the “right” to possess and cultivate marijuana as a source of their recommended medicine for medical treatment. Thus law enforcement, without adequate training or policy from the local prosecutor, is not aware, how and when to apply 11362.5, as they still apply ‘58. The legislature finds and declares that this law enforcement difficulty has prevented “law enforcement from enforc[ing] its provisions as envisioned by the voters and therefore have prevented qualified patients ... from obtaining the protections afforded by the act.” This court now has the opportunity to determine these important and continuing public interest issues and to restore harmony to the body of law, and to this behind the times, law enforcement branch of our state and local government. A writ should issue explaining to law enforcement that ‘62.5 controls ‘58 which yields to ‘62.5 and that “known” status defendants are not subject to arrest and prosecution. Where status is known, there is no probable cause to believe criminal activity exists. A policy should be ordered to train law enforcement on how this works and how the statute is applied.
12. The instant case falls into the category of law enforcement’s failure to enforce the provisions envisioned by ‘62.5. Here, prior to arrest, law enforcement knew of defendants’ status. [See officer Mejias’ report.] Defendants’ status prevents the application of ‘58, and renders ‘58 inapplicable to the status person. It doesn’t take a rocket scientist to understand that the purpose of ‘62.5 is to abrogate the application ‘58 and bar ‘58 prosecution in status cases. We must look for “the reason” why Clovis Police and the Fresno County District Attorney’s office sought to have these status defendants arrested and prosecuted. The ‘62.5 law is not vague as to purpose in controlling ‘58 criminal application and prosecution. In fact ‘58, does not apply to the ‘62.5 status person. Prosecution of the status person is prohibited by ‘62.5. So why are the Clovis Police and district attorney moving against the defendants who were and are known status persons? IV.
CAN 11358 BE APPLIED TO DEFENDANTS, WHO ARE STATUS PERSONS?
13. It is clear under the examination of pari materia, or even under ‘62.5 alone, that a purpose for the people’s enactment of ‘62.5 is to have ‘62.5 control ‘58. This control is specific as ‘58 shall not apply in ‘62.5 cases. ‘62.5 is a bar to application and prosecution under ‘58. This analysis is undisputed. With these propositions solidly behind us, let’s try to determine why these ‘62.5 status defendants were arrested and why they are being prosecuted. Restated, when Clovis law enforcement knew that these defendants had physician’s recommendations, and then advised on how to secure the “medical grow,” why were defendants arrested? Thereafter, when the district attorney’s office knew about defendants’ status why were they prosecuted? Why was a first amended complaint filed by the prosecutor? Using pari materia construction with ‘62.5 and merging ‘58, does the ‘58 count state a cause of action? Remember that ‘58 itself contains the wording “except as otherwise provided by law.” And consider that 11362.5 provides decriminalization which is “otherwise” to 11358. Thus the only conclusion is that 11358 “yields” itself to 11362.5. 14. Does ‘62.5 require a new and different style for a factual [criminal] pleading in
‘57 and ‘58 cases? We argue that a pre-‘62.5 pleadings which doesn’t consider the effects of ‘62.5 are defective pleadings. We submit that all ‘58 pleadings should state that there are no know facts which would require implementation of ‘62.5. If the fact of status is known, then the complaint must state facts that would disclose “why” there is no application of ‘62.5. Presently all such pleadings are defective. The court should order proper pleadings in view of the annulling effect of ‘62.5 on ‘58.
V.
FRESNO COUNTY POLICY FAILS TO IMPLEMENT PREEMPTING 11362.5
AND REQUIRES THE ARREST AND PROSECUTION OF STATUS DEFENDANTS
15. According to the official Clovis Police press release: “Although medicinal marijuana may be legal in the State of California, Fresno County has a no tolerance policy on cultivation.” This article refers to the Ainsworths’ known physician’s recommendations
and names them in the press release. The court can take judicial notice that a local policy to arrest and prosecute ‘62.5 status patients is not law. It would take at the very least a local ordinance (consistent with state law) to offer a means to arrest and prosecute status
defendants. Fresno County has no ordinance consistent with ‘62.5. The DA has no written policy for police training and the implementation of ‘62.5. So the only known admission
about a local “no tolerance” policy is in the Clovis Police press release and by the police conduct. An order should issue requiring a policy.
16. To be constitutional, a policy must be consistent with ‘62.5 state law. No local policy can be so over broad as to commandeer our state law. A local policy is not law. All laws and ordinances must be sunshined as required by the Brown Act. The item must be placed on the public’s agenda and noticed. No local unwritten policy is offered for notice. Failure to provide notice denies fundamental due process. Most local policies have been determined unconstitutional as creating an irrebuttable presumption that the policy is correct in spite of any other laws. Many have been determined unconstitutional as being over broad, i.e., exceeding the preempting State law. Other policies have been declared void for vagueness and without notice to the public that the policy is sought to control conduct. It is a fact that no local policy can preempt state law. So the Fresno County DA has a no tolerance policy that fails to enforce and implement ‘62.5 protections, rights and benefits. This local policy denies equal protection under the state law. Can this local policy of no tolerance be the basis for arresting and prosecuting status patients? Under the prior pari materia construction ‘58 has no effect nor application over ‘62.5. In fact it is interpreted the other way around. Therefore a local policy of no tolerance for the rights of status persons is unconstitutional. Arresting and prosecuting known patients is an invidious discrimination against the class of person protected by ‘62.5. As MOWER stated there is no difference between a marijuana recommendation and a physician’s recommendation for any other drug that requires a prescription. The status person is relying on and exercising the rights stated in ‘62.5
17. “As stated in Merrill v. DMV (1969) 71 Cal. 2d 907,918: ‘[A] statute should be construed with reference to the entire statutory system of which it forms a part, in such a way that harmony may be achieved among it parts...’ The Merrill rule is a statement of the canon of statutory construction that statutes in pari materia – statutes dealing with the same subject as the one being construed – are a relevant source of aid in construing the statute in question. (See Southerland, Statutory Construction (4th ed. 1973) section 51.01, et. seq.) Furthermore, we are mindful of the doctrine that when the Legislature enacts new legislation, the Legislature is (1) presumed to envision the whole body of law on the subject matter and (2) is presumed to have expressly designated any repeal of prior provisions, rather than to leave a repeal by necessary implication.”
Here the enactment was that of the people. The people’s purpose is stated throughout MOWER. The people expressly enacted ‘62.5 as a statute that controls ‘58. The intent and
purpose of ‘62.5 is to control ‘58, and to prohibit prosecution of the status person by barring the application of ‘58. The prohibition against prosecution of the barred ‘58 is implicit in ‘62.5. Therefore any prosecution of a known ‘62.5 status person is a violation of public policy and the intent of ‘62.5. Prosecution due to local policy denies equal protection under State law.
18. Where one act, when construed under “merger” with the other act, (effecting the same subject or thing) is determined to exercise control or abrogate the other act, this must be the court’s findings to bring harmony and to give effect to the body of law. In reference to time, H&S 11358 was enacted decades ago to “criminalize” the cultivation of marijuana. However H&S 11362.5, was enacted only SEVEN (7) years ago and it too controls the same subject matter and thing, by “decriminalizing” marijuana cultivation in 11358. Via use
of the canon of pari materia and merging these 2 acts as if one act, only then will these laws be determined with harmony in the body of law.
19. The Legislature stated the problem is that law enforcement has failed to enforce and implement ‘62.5 as the voters intended. The unwritten local policy admittedly fails to implement ‘62.5. Thus, but for this local policy, defendants would never have been arrested and prosecuted. This policy can never preempt our state law in ‘62.5. Local law enforcement must be ordered to recognize and enforce ‘62.5 protections, benefits and rights. The DA policy to ignore ‘62.5 is an unjustified abuse of discretion. Prosecuting known status patients, when prosecution is prohibited is a local policy promoting an invidious discrimination against the status person. This policy is not legal in view of MOWER’s comparison that marijuana with a recommendation is no different than any other drug with a physician’s prescription. The policy is an abuse of discretion as to how to apply ‘58 in view of its control by ‘62.5. This policy denies equal protection and due process. Thus the prosecutor’s unjustified abuse discretion to prosecute status persons must be prohibited. The jurisdictional bar to prosecution, in 11362.5, must be recognized to stop prosecution.
Defendants are entitled to a writ. Prosecution is prohibited. H&S 11362 is a statutory bar to prosecution.
ARE DEFENDANTS ENTITLED TO ISSUANCE OF A WRIT?
PROSECUTION IS PROHIBITED - 11362.5 IS A STATUTORY BAR TO PROSECUTION
20. Defendants seek the issuance of a writ to order the prosecutor and the court to
cease application of ‘58 against defendants and to implement and enforce ‘62.5. This is based on defendants known status and the conclusions of law decided by use of the rule of pari materia. Furthermore the writ should issue as ‘58 has no application to ‘62.5 status persons and a particular purpose of ‘62.5 is to prohibit the prosecution of qualified patients. This prohibition is jurisdictional, see PC 602(n).
MOWER at original page 10:
“... 602(n)... Such a statutory provision bars prosecution...”
Page 14: [11362.5] “Rather it operates, in the manner of Penal
Code section 602(n), to render noncriminal certain conduct that
otherwise [remember otherwise from 11358] would be criminal.”
Thus by the MOWER “comparison” to 602(n); 11362.5 is “... a statutory provision [that] bars prosecution,” just as 602(n) is a statutory provision that bars prosecution. Thus where 11358 states “except as otherwise provided by law,” 11362.5 provides the “otherwise” provisions to 11358. Only the use of pari materia merger, as opposed to comparison used by the MOWER court will expose these statutes [for law enforcement] in harmony with the entire body of law. The MOWER comparison gave the “false hope” to law enforcement and prosecutors alike, that they could continue to ignore the implementation of 11362.5. See the Legislative findings and declaration about law enforcement’s inability to enforce the voters intentions in 11362.5.
20. A writ of mandate is also equally considered as a writ of prohibition. These writs are liberally interpreted as inclusive with the purpose of providing benefits to the defendant. A writ of prohibition can issue when a court, officer, [etc.] acts in excess of its jurisdiction. (See CCP 1002.) A writ of prohibition can restrain a branch of the government from proceeding with a hearing [prosecution]. See City of Fresno case, Nider v. Homan 32 C.A. 2nd 21. See also MURGIA v. Municipal Court (1975) 15 Cal. 3d, 286, where the court ordered the DA to provide discovery about its racially abusive policy to prosecute.
21. See also Smith v. Santa Rosa Police Dept. (2002) Cal App 4th No. A095040, First Div. Two. Apr. 9, 2002, where the writ of mandate was affirmed. Smith was granted a writ to release his truck. The writ ordered the City and police to ‘immediately implement a policy to and procedure whereby a vehicle is released from impound ... if the evidence presented by the legal owner ... establishes [a] mitigating circumstance ...’ The basis for issuance of the writ in Smith was the local policy, and is on point with the instant case. In cities or counties where local policy denies rights under state laws, a proper local policy should be ordered by the writ. A release from the invidious discriminations of the local policy should be ordered as part of the writ relief.
22. See Nat’l Tax-limitation Committee v. Schwartzenegger (2003) No. C043583,
Third Dist. Dec. 4, 2003. This was a Petition for writ of mandamus to compel the Governor
to proclaim an end to the state of emergency. That the governor’s predecessor abused the exercise of his discretion in refusing to terminate the state of emergency. Although the issue became moot, the appellate court used discretion to resolve an issue of continuing public interest that is likely to occur in other cases.” (Daly v. Superior Court (1977) CA3d,
462.) [In our case we too need resolution of an issue of continuing public interest that will continue to occur in other cases.] Issue: whether the petition states sufficient facts to justify relief. And whether the Petitioners have ‘stated a cause of action under any possible legal theory.’
24. Schwartzenegger cont...“A writ of mandate may be issued by any court to any ... person, to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust ... It has often been said that “two basic requirements are essential to the issuance of a writ: (1) A clear and present and beneficial right in the petitioner to the performance of that duty.” However a writ of mandate will also lie to correct an abuse of discretion by a public officer. Discretion ... is the power conferred on public functionaries to act officially according to the dictates of their own judgment. ... an act or duty prescribed by some existing law that makes it incumbent on him to perform precisely as laid down by the law. In short where a statute requires an officer to do a prescribed act on a prescribed contingency, his functions are ministerial.” Here both statutes provide that application of 11358 [except as otherwise provided by law] arrest and prosecution is enjoined by the provisions of 11362.5. Therefor this action should be enjoined and dismissed.
25. In the instant case, there is a failure by law enforcement to implement and enforce
the protections, benefits, and rights of defendant who occupy their position in a class with other persons for whom marijuana use has been decriminalized. Due to this continuing problem, the Legislture has enacted H&S 11362.7. Petitioners therefore have a clear and
present beneficial right to law enforcement’s performance of the duty to implement and enforce 11362.5. Failure to implement and enforce 11362.5, is an abuse of discretion, as there is no discretion [see CA constitution Art. 3 sect. 3.5] to disregard enforcement of 11362.5. This abuse of discretion is an invidious discrimination against this class of person. Failure of law enforcement to implement and enforce a state law cannot be justified. This Legislatively declared problem is facially the denial of due process and equal protection under law. The court, as a matter of law, may determine the existence of this problem.
VII.
APPLICATION OF THE ESTRADA RULE TO H&S 11362.5 and 11362.7, et.seq.
26. In Peo. V. Estrada 63 CA 2d 740, the criminal statute was amended after the
prohibited act, but not before final judgment. The amendment mitigated the punishment.
The issue was whether or not Estrada was entitled to benefit from the amendment. “We
hold that in such situations [where the defendant benefits] the punishment provided by the amendatory act should be imposed. One month before petitioner’s sentence and conviction...these two sections were amended so as to reduce the penalties formerly provided in ... As a result of the amendment ... persons convicted ... by these amendments both the term and the time ... has been reduced.” [This was not the law at the time of arrest, but the subsequently enacted law was applied to benefit Estrada.]
Estrada Rule:
“If the amendatory statute lessening punishment becomes effective
prior to the date the judgment ... becomes final then, in our opinion,
it, and not the old statute in effect when the prohibited act was
committed, applies.”
27. Thus the Estrada Rule requires that when a statute is amended and the amendment benefits the defendant prior to judgment, then the defendant is entitled to the
benefit of the statute. This is not an application as in an ex poste facto situation, as the change “benefits” the defendant. See also Peo. V. Doganiere (1978) 86 CA 3d 237.
“The question is, ‘Does the amendment apply to the defendant?’” PC 3 provides that no part of the PC is retroactive unless specifically so declared. However in Estrada, the Supreme Court carved out an exception of that rule. Estrada held that laws granting amelioration in punishment should be held to be retroactive as to nonfinal judgments because it would be presumed the amelioration judgments would have to drawn that the Legislature was motivated by a desire for vengeance or punishment, a purpose inconsistent with modern penological theory.”
28. Thus, if the now, well established Estrada Rule, is applied to both H&S 11362.5 and 11362.7 eff. 1/1/04. This new H&S law should be applied retroactively, because it follows the Legislative purpose and intent of both 11362,5 and 11362.7 to benefit those status persons set forth in 11362.5. These ameliorating laws alter the punishment and decriminalizes 11357-60; 11366, 11366.5, and 11570. Thus application of the Estrada Rule applies to these new laws. Also 11358 contains “yielding” language in “...except as otherwise provided by law...” Thus both 11362.5 and 11362.7 are intended to control and abrogate 21358 to the extent that they do so.
29. But for the problems across the state which have denied implementation of 11362.5 as the voters intended, this new law 11362.7, would not be necessary. See Legislative Counsel’s Digest above. Although 11362.7, et. seq., is voluntary, its intent is to fill gaps and clarify the application of 11362.5, and to force law enforcement’s reluctance to the implementation of qualified patient rights. One of the major purposes and effects of the new law are to stop the arrest and criminal liability of patients by law enforcement under H&S 11357, 11358, 11359, 11360, 11366, 11366.5, and 11570. See 11362.765 (a), which incorporates all of these H&S sections into the decriminalized category. See 11362.77(a) which provides that a patient ... may possess no more than 8 ounces dried AND 6 mature plants or 12 immature plants. Here defendants are charged with 6 or 7 plants total, and both defendants possess medical recommendations. So applying the Estrada Rule to allow the Legislature’s ameliorating effect and intent of the application of 11362.77 (a), both defendants xceeded no cultivation limits and were not involved in criminal activity. ‘58 has no application to status defendants, period. 11362,5 states “otherwise to the criminalization under ‘58, and ‘58 contains the “yielding” language.
Applying Pari Materia to H&S 11362.7 et seq
30. We must now concern ourselves with the fact that H&S 11362.7 became necessary due to the legislative findings and the fact that law enforcement has failed to implement and enforce 11362.5. The Legislature became acutely aware of the lack of law enforcement implementation of the people’s will as expressed in 11362.5. See Legislative Counsel’s Digest Sect. (1) and (2) above. Therefore the Legislature sought to enact 11362.7 to clarify issues in 11362.5, and to stop the arrests, criminal liability and to include all the other similar H&S sections and make them exempt from arrest and criminal penalties. So just as 11362.5 controls statutes [even unlisted ones like 11360, see MOWER] 11362.7 controls and spells out of the more related statutes that apply to the patient. This was like a legislative pari materia as they in fact explain that these other similar sections have no application to the ‘62.5 patient.
31. See Section 1 (b)(1):
“Clarifying the scope of the application of the [‘62.5] act and ... in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers.”
A Legislative purpose for 11362.7 was to clarify the [scope of] application of the 11362.5 act [and its effect on the unenumerated H&S statutes] and to abrogate these now enumerated H&S sections by this clarifying legislation. Another purpose was to give guidance to law enforcement officers in order to avoid unnecessary arrest and prosecution. Thus the Legislature again states that law enforcement has been unable to implement 11362.5 and that law enforcement needs guidance in order to avoid unnecessary arrest and prosecution of persons exempted by the act.
32. Using pari materia to add 11362.7, et. seq., into our prior pari materia construction of similar statutes, we now see that 11357-60; 11366, 11366.5, and 11570 are all subject and “yielded” to the ‘62.5 act and therefore 11362.5. This is Legislative intent and clarification as to application of the act and its purpose to control all of these other similar statutes. Also the Legislature explains that law enforcement still needs guidance to implement 11362.5, and that a purpose of 11362.7 is to provide that guidance in order to avoid unnecessary arrest and prosecution.
33. Since 11362.5 was the people’s legislation and the will of the people, the Legislature has no power to amend or alter 11362.5. For this reason, 11362.7 is a statute that requires “voluntary” submission by persons in the 11362.5 class. In fact 11362.7 explains that it does not affect the existing rights of 11362.5 patients. This legislation clarifies ‘62.5 rights and creates a duel system, a legislative one, which defines the application of ‘62.5 and offers patients (who volunteer) rights, parallel to the benefits and protections contained in the provisions of 11362.5.
34. Therefore with application of the Estrada Rule, the act [11362.5] must be read and construed in pari materia with this Legislative clarification of the act, and how the act also applies to and abrogates 11357-60; 11366, 11366.5, and 11570. Therefore the Legislature with intent and purpose, has filled in the blanks about 11362.5 and has enumerated other statues that it controls. In every analysis there is no probable cause to arrest and prosecute a ‘known” qualified patient. The Legislature has made it perfectly clear that the criminal penalties [H&S 11357-60; 11366, 11366.5, and 11570] have no application to the [‘62.5] qualified patient. That the act of 1996, was intended to stop law enforcement from arresting and prosecuting qualified patients. Where status is unknown, and the field investigation difficult, the arrest may proceed. See MOWER. However where the status is immediately known by offer of the Dr. recommendation, there is no probable cause to arrest. In every case where status is known prior to the filing of a criminal complaint, indictment or information, the patient should not be indicted or committed in the first place.
See MOWER, original page number 15:
“... the prosecutor must present any evidence ... that would exculpate the defendant. Evidence of a defendant’s status ... exculpates him or her from the guilt of the crimes ... because such status renders possession and cultivation of marijuana noncriminal.”
Are qualified persons entitled to rely on H&S 11362.5?
35. A status person is by the provisions of ‘62.5, specifically provided protection from criminal penalty and sanction. This is state law and the will of the electorate. When a law is enacted, it can be relied upon in good faith. The exonerating element is the Dr.recommendation. There is no other measure of the exempt status. Therefore when a Dr.examines a patient, and recommends marijuana for the treatment of the illness, the patienthas a correct belief that the recommendation meets the standards in ‘62.5. Once a patientreceives a recommendation, they have the correct belief that their use of marijuana is legal under state law. Thus the status person has a right to rely on both the recommendation and State law allowing this legal use. Even if a patient enjoys the use of this medicine while under medical treatment, this is not any reason to criminalize this legal treatment. If this were so, every patient would be prosecuted for obtaining the pain relief and other medical benefits associated with this legal medical use and treatment. When law enforcement second guesses the medical treatment they are interfering with the sacred Dr.-patient consultation and recommended medical treatment. When they seize marijuana and plants they are seizing lawful medicine. Therefore when a status is known, no law enforcement can interfere with the legal medical treatment or seize the legal medicine. They may not dispute the physician’s diagnosis or recommendation to use marijuana. This is beyond their duties and expertise to challenge the medical doctor.
Summary and conclusion.
36. Thus, but for the (decades old) enactment of 11358 in criminalizing cultivation of marijuana, there would be no such count stated against defendants. However in 1996, the people of the State of California by the initiative process enacted and adopted Proposition 215 now H&S 11362.5. This act 11362.5 specifically states that H&S 11357 and 11358 “shall not apply.” Therefore, the statutes meet the pari materia requirement, i.e., that the acts covers the same subject matter or thing in ‘58. Both statutes control the cultivation of marijuana. ‘58 criminalizes the conduct and 11362.5 decriminalizes the same conduct. These acts are in complete opposition and conflict as to their purpose.‘58 is barred due to the medical status of a ‘62.5 status person. Status is simply determined by a physician’s recommendation or approval to use marijuana as personal medicine in the treatment of enumerated ills. Status need not be proven as it is “merely raised” by the recommendation. See MOWER. While it may be difficult to raise an oral approval, any evidence, such as a subsequent letter from a physician should be sufficient and recognized by the prosecutor and court. There is no preponderance burden of proof for the status person. Once status is known or raised, there is no probable cause to apply ‘58, as ‘62.5 is the controlling statute.
37. Using pari materia to combine these conflicting statutes into one statute for purposes of construction, shows the purpose of the later act [‘62.5] was to create an exception and to control the former act, ‘58. Thus 11358 is subject to and is controlled by 11362.5, the people’s initiative legislation. When 11362.5 status exists, 11358 is abrogated from criminal application and prosecution. [11362.5 does not affect the criminal application of 11358 in non-status instances.] Status is clearly the abrogating element. Cultivation of marijuana is no more criminal and cannot be applied under the noncriminal 11362.5 conditions.
38. No ‘62.5 status person can be subjected to the ‘58 criminal penalties, and
prosecution. ‘62.5 ensures that ‘58 shall not apply and that status persons shall not be prosecuted. Under ‘62.5 there is no criminal offense and there is no criminal penalty. To the extent of status, ‘62.5 has in fact abrogated ‘58 and made it a nullity without any use, purpose or application in status cases. The legislature has further clarified the act and its application to 11357-60, etc. The Estrada Rule provides that persons can benefit from a later act that grants a more beneficial result. While the legislature spells out these other affected H&S sections, it is clear that their purpose it to spell out and clarify the benefits resulting from the ‘62.5 act itself. Once Estrada is invoked, then 11362.7, comes in pari materia with 11362.5, brings in the application of the other statutes as clarified by the legislature. Thus the act abrogates all these other sections to the extent that they interfere with the status person and his or her rights.
39. The MOWER decision footnote 6 called ‘62.5 jurisdiction in its less fundamental sense. The only distinction between jurisdiction in its less fundamental sense, is that it is subject to forfeiture [bars] and waiver. However a court’s want of jurisdiction to prosecute in either sense, is jurisdictional. Defendants herein have repeatedly raised their ‘62.5 status and have challenged application of ‘58 and the jurisdiction that seeks to prosecute them. Thus the ‘62.5 prohibition against prosecution is a jurisdictional bar to prosecution. The Court should issue an order to stop this prosecution as ‘58 has no application and there was never any probable cause to arrest and prosecute known ‘62.5 status persons. See Exhibits, Clovis Police reports and physician’s recommendations.
39. In fact, from the merged interpretation resulting from these conflicting statutes (and due to enactment of 11362.7)in finding harmony in the body of law, there is only one possible conclusion. That conclusion is the purpose of the people in enacting 11362.5 (as a decriminalizing statute) was to have their legislation abrogate 11358 to the extent that the 11358 (criminal prosecution, penalty and sanction) interferes with the decriminalized rights, benefits and protections in 11362.5. The will of the people in enacting 11362.5, was to ensure that a class of person [determined by medical status] had the right to cultivate marijuana for medical purposes. See the Legislature’s clarification as to the application of the act to H&S 11357-60; ‘66, ‘66a, and 11570. Using pari materia and combining 11362.7 with 11362.5, and the applicable other statutes it is clear that 11362.5 grants substantial rights. All of these enumerated statutes according to the Legislature are admittedly abrogated by the act.
41. The MOWER decision stated that the possession and cultivation of marijuana
under the conditions stated is no more criminal than the possession and acquisition of any drug with a physician’s prescription. The meaning of this comparison is so clear that it is not subject to any different interpretations. A recommendation to use marijuana (and its possession and cultivation) is [in California] as legal as the possession and acquisition of any controlled drug by a prescription. Therefore and in view of the conflicting laws a determination is necessary that defendants are in the class of status persons and that ‘58 and prosecution is jurisdictionally and/or legally barred. But for an order from the court, defendants will continue to have misapplication of the statutes and be prosecuted. Under the terms and application of 11362.5 this is not an option.
42. This is invidious discrimination against this class of person, their recommended medicine and medical treatment. The right to seek and obtain medical treatment and to follow a physician’s advise is a fundament right and involves the right to privacy. Being prosecuted where prosecution and criminal offense have no application denies due process and equal protection. Defendants are denied their full liberty due to misapplication of 11358, where is has no application. All of this is substantial interference with fundamental rights. Prosecution of status persons is an abuse of discretion and fails to implement ‘62.5.
43. Here defendants invoke the rule of “pari materia” for the purpose of the court’s determination of the harmony and effect of both statutes, between Count One, H&S 11358 [cultivation of marijuana] and the effect of the enactment of H&S 11362.5, which in mandatory terms, states that 11358, “shall not apply.” That prosecution is prohibited. Only when read as one enactment can sense and harmony in this body of law be achieved. Presently there is a void in the nexus or connection and application of these 2 apparently conflicting statutes. Merger will correct this disjointed void and render harmony to these statutes and the body of law. These issues are of great public interest and concern, as it
is a treat mystery as to why law enforcement has failed to implement the will of the people.
44. The police and prosecutor had prior knowledge of Defendants’ 11362.5 status and violated CA law [‘62.5] in arresting and prosecuting defendants. Under the Canon of pari materia, 11358 must be read as one statute with H&S11362.5. The court is required to determine the legislative intent of similar statutes, and the harmony from the effect of the similar statutes when read as one statute. See ‘62.7 Legislative findings. If one statute controls the others, then so be it. Here 11362.5 was enacted by the People’s initiative and is the will of the People. It specifically states that “11358 shall not apply” to a medical marijuana patient who has obtained a physician’s recommendation to use marijuana as personal medicine. Furthermore it states that the marijuana patient “is not subject to prosecution.” “Shall” in both instances is mandatory.
45. The MOWER decision held that a particular purpose of 11362.5 is to prohibit prosecution. Thus based on the reports of the Clovis Police officers, it was known prior to defendants arrests, that defendants held physician’s recommendations to use marijuana as medicine. Officer Mejias reported that he advised defendants on how to “secure” the “medical grow.” Since law enforcement reported that both defendants had 11362.5 medical recommendations and a “medical grow,” then there is no probable cause to believe that defendants were involved any criminal activity. Under pari materia 11362.5 controls 11358, which has no effect or application to the class of person holding the status of a qualified [marijuana] patient. Restated, 11358 is abrogated by 11362.5 and does not apply to the class of person with medical status. Cultivation of marijuana is not criminal for a qualified patient, period.
46. A local policy to prosecute marijuana patients is not openly debated and voted upon. It is not “sun shined” for notice on any public hearing agenda. An unwritten local policy to ignore 11362.5, and a suspect’s medical status, and that 11358 has no application does not satisfy the fundamental requirements of due process and notice. This local policy does not ensure equal protection under state law 11362.5. This local policy does not ensure the rights of the status person to legal medical treatment and violates the constitutional rights to privacy, life, liberty, etc. This policy violates the rights and benefits of a physician-patient consultation and the benefits of the advise for legal medical treatment. The policy provides no due process and is not equal protection under the laws of the State of California.
47. Therefore in California, there is no longer an immediate law enforcement conclusion that probable cause exists (or that any person is engaged in any criminal activity) just because marijuana is involved. However this is the illegal local policy. If marijuana is involved, the conclusion must be that the person may be in the class of persons engaged in legal conduct. This should be the first conclusion. The exonerating fact, a physician’s recommendation, negates any probable cause.
48. The conduct sought to be curbed is the DA’s conduct in enforcing local policy instead of enforcing ‘62.5 rights. The court is requested to enjoin the court from assuming jurisdiction to prosecute as ‘62.5 prohibits prosecution. Here ‘62.5 requires that the DA and court determine that the status person is not subject to criminal penalty or prosecution. That the status person shall not be prosecuted. Defendants, prior to arrest, raised status and showed the Clovis Police their Dr. recommendations to use marijuana. However and as the Legislature determined in its findings: law enforcement with no guidance [or training] on 11362,5, simply fails to implement and enforce’62.5 rights.
49. Whether the issue for writ is one of curbing discretionary or ministerial duties is a proper question for the court. In fact this issue appears to fall within both ministerial and discretionary duties. Defendants have a present and beneficial right to see that respondents perform their duties and implement and enforce ‘62.5 as the statute annulling and controlling ‘58, and others. That to arrest and prosecute “known” status persons is an abuse of discretion. The failure to implement and enforce 11362.5 is an abuse of discretion. It is invidious discrimination against this class of status person. See CA Constitution Art. 3, Sect. 3.5, as no officer can refuse to enforce any law.
50.
(1) That respondents be ordered and enjoined, to cease the application of 11358 to these status defendants; and,
(2) That the court acknowledge that there is no probable cause nor ‘58 jurisdiction to prosecute these status defendants, and set aside and/or dismiss the action; and,
(3) That the DA be ordered to ‘immediately’ develop and distribute to all law enforcement in Fresno County, a written policy to train about and implement the enforcement of 11362.5; and,
(4) That the prosecutor be ordered to develop a new style pleading in all criminal prosecutions of the exempted H&S statutes enumerated in H&S 11362.7, et. seq., that states: “There is no known medical status exemption, and there is no known exception that would deny application of the statute(s) criminally;” and/or that “Although status is known there is an exception to the claim of status and said factual exception is ...;” and,
(4) That defendants be restored to their pre-arrest status; and,
(5) That defendants are found factually innocent, consistent with PC 851.7 and that the proper reporting requirements under other applicable Penal Code sections are ordered.
This case was just published and certified for opinion on 12/8/03. It is 3rd Dist. Court of Appeal, C040485. In this action, defendant was denied the use of marijuana as a condition of probation. The People argued that this violated the laws of the United States. Page 3: “(Ibid.) ‘... patients are not subject to criminal prosecution ...’ and sections 11357 ... and sections 11358 ... shall not apply. The California Supreme Court has analogized the use of marijuana pursuant to ‘62.5 to the use of a prescription drug.”
Page 4: “The medical necessity defense “... is not a measure of the right ... for medical purposes by section 11362,5" “... the People may not evade section 11362.5 ... on the ground ... that he obey the federal criminal marijuana law.” Once again we see that law enforcement is the problem with implementing and enforcing 11362.5 rights. The
result is this Court’s declaration that due process was denied.
Page 6, footnote 6: “... section 11362.5 can be read to satisfy the defeasing clause on the view the recommendation for marijuana use is analogous to a prescription.”
Page 8, footnote 7 (cont.) “... that defendant’s documentation is sufficient to establish he was a medical marijuana user within the meaning of ... 11362.5.”
Page 9, “The defendants possession of marijuana was the basis of a conviction ... The criminal conviction was reversed on appeal ... We review the revocation of defendant’s probation based on the noncriminal possession and use of marijuana. We also determine whether revocation may be founded upon the violation of federal marijuana law.”
Page 10, “Section 11362.5 applies to any illness for which marijuana provides relief. The medical marijuana necessity defense is not the measure of the right to obtain and use marijuana... federal law has no bearing on the questions [involving the construction of section 11362.5], which involve state law alone.” Footnote 9: “... the trial court improperly evaluated the preliminary facts to establish the section 11362.5 defense.”
Page 11, “Prior to the enactment of section 11362.5 it was unlawful to possess marijuana [note see this courts inclusion (now) of H&S sections 11550, 11054] ...”
Page 12, “under 11362.5 both the use and the possession of marijuana are lawful...”
Page 13, “But section 11362.5 is not so limited. We are directed to give sense to all the terms of an enactment. To do so requires that we give effect to the purposes of section 11362.5 to ensure the right to obtain and use marijuana.” [Cultivation was not an issue in this case, but it is clearly a right in 11362.5.]
Page 14, “It is readily apparent that the right to obtain or use marijuana is not ‘ensure[d]’ if its use [cultivation too] is not given protection from the adverse consequences ... Indeed, it would completely frustrate the purpose of section 11362.5 if as violation of probation for the medical use ... of marijuana is permitted while barring a criminal prosecution for the identical act. The court must recognize that ‘the defendant must proceed under the common law if the limited immunity ... operates ... extrinsic ...”
Page 18, “the People have misunderstood the role that the federal law plays in the state system. ... state courts do not enforce the federal criminal statutes. ‘State tribunals have no power to punish crimes against the laws of the United States, as such. Footnote 13, see also Penal Code section 777 ...” 777 is the jurisdiction statute.
Page 19, “... the state does not punish a violation of the federal law ... The state
cannot do indirectly that which it cannot do directly.”
Page 20, Similarly California courts should not enforce federal marijuana law ...
who qualify for the immunity provided by section 11362.5.”
It is clear that courts [and state and local law enforcement per CA constitution Art 3, Sect. 3.5] have no power to prosecute for federal crimes. This is inherent in the constitutional nature of these separate and foreign jurisdictions. Connecting this lack of power to state and local law enforcement duties, there is no power to bring a federal interest matter to state court, since that court has no power to prosecute or issue penalty.
Thus the federal government handles their matters and the state state matters. It goes beyond state duty and interest to act as a federal officer. PC 939.71 and Rules of Professional Conduct 5-110 and 5-220 require that the prosecutor disclose to the Court
exonerating evidence and disclose that there may be no probable cause. This gives the court an opportunity to correct the situation. Here no such disclosure has been offered. Thus, the People, in violation of affirmative duty, seek to frustrate the benefits granted to these status defendants.
The foregoing and latest case in the California medical marijuana saga, continues
to follow the will of the People by recognizing that 11362.5 is a right. Federal law and regulation [CA const. Art. 3 sct. 3.5] is not a state or local law enforcement matter as [Mower footnote 2] federal law is not controlling over state law matters. Law enforcement have to realize what jurisdiction they work for. However it is as the Legislature declared, only law enforcement has failed to implement and enforce 11362.5 as the voters intended. It is the duty of the California Attorney General to keep his soldiers in line with enforcement of state law. Will this court assume its independent duties and resolve this continuing public interest matter, once and for all? A pari materia construction will arrive at a somewhat more specific and different result that did the MOWER’S construction by comparison.
Another immunity statute for this court’s consideration is found in Penal Code section 112281 (a),(b) and (d), last sentence of (d). Mower used 602(n) and the Insurance Code which they decided was not on point. They stated that PC 602(n) was “Such a statutory provision [that] bars prosecution...” and footnote 6, that jurisdiction was in its less fundamental sense. However consideration of 12281 (d) is before this court for inclusion into the MOWER immunity formula and as a novel consideration. (d) requires that the immunity be liberally applied to benefit the defendant. Its purpose it to overturn and dismiss prior convictions. It follows the Estrada Rule requiring the application of a subsequent law that benefits a defendant, but it exceds Estrada to the extent that it allows application AFTER judgment is entered. Isn’t this what 11362.5 is all about? Minimal burden of proof by merely raising the Dr. recommendation to raise reasonable doubt and status. Liberal application of 11362.5 immunity from criminal prosecution is implicit in 11362.5.
The last thought for this Court is that the People may not evade 11362.5 [see above citation]. The Legislature in its findings and declaration tell us that but for law enforcement problems in implementing 11362.5, as the voters intended, patients would not live in fear of criminal arrest and prosecution. The Legislature found that qualified patients were not receiving the “protections” of 11362.5, due the problems caused by law enforcement. Isn’t the reality here, [Legislatively declared] that law enforcement has for SEVEN (7) years, been evading the implementation and enforcement of 11362.5 rights? Isn’t it time to revisit these issues and resolve this continuing public interest matter. This is the purpose of a writ, and a writ should issue where application of a statute is prohibited and where prosecution is prohibited. The Court has a duty and that duty is to see that justice is served as the will of the People and Legislature have directed.
Prayer
We ask this court to:
1. Enjoin invidious prosecutorial discrimination based on status and class.
2. Enjoin prosecution of medical marijuana users and their suppliers.
3. Enjoin prosecutorial abuse of discretion in this regard.
4. Restore liberty of petitioners.
5. Declare that no probable cause has been shown in this case.
6. Dismiss the complaint against petitioners.
Dated: 12/9/03 Attorney William McPike