Metropolitan News-Enterprise


Thursday, December 2, 2004


Page 1


State High Court Agrees to Review Scope of Defense Of ‘Compassionate Use’ Under Proposition 215


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court yesterday agreed to review a lower court’s ruling that an Orange County man was entitled to use a “compassionate use” defense under Proposition 215 in a case where he was charged with transporting marijuana and possessing the drug for sale.

The unanimous grant of review in People v. Wright, G031061, comes 28 months after the high court decided its first case under the 1996 medical-marijuana initiative. The justices held in People v. Mower (2002) 28 Cal. 4th 457 that a defendant who possessed or cultivated marijuana need only create a reasonable doubt on the issue of whether he or she had a doctor’s recommendation to use the drug for medicinal purposes.

The attorney general argued unsuccessfully that the defense should be required to prove the existence of a doctor’s recommendation by a preponderance of the evidence.

Wright raises the question of whether the trial judge properly rejected a Proposition 215 defense as a matter of law. A divided panel of the Fourth District Court of Appeal’s Div. Three held that the case should have gone to the jury.

The majority said Orange Superior Court Judge James A. Stotler was in error when he barred Shaun Wright’s attorney from presenting evidence in support of a Proposition 215 defense and declined to instruct the jury regarding the measure.

Stotler based his order on his conclusion that the quantity of marijuana in Wright’s possession, 19 ounces, precluded his claim that he only had the drug for personal medicinal use.

Wright was arrested by Huntington Beach officers who stopped him as he was leaving a carwash.

According to testimony, the officers had received an anonymous tip that there was marijuana in Wright’s pickup truck. After one of the officers approached the truck, noticed a backpack on the seat, and smelled the odor of marijuana, he asked Wright to step out and eventually seized marijuana from his person as well as from the backpack.

At a hearing outside the presence of the jury, Wright testified that he has used marijuana for medicinal purposes since 1991 to relieve the pain of various physical injuries. He said he both smokes the drug and adds it to his food.

A physician, specializing in alternative medicine, testified that he had seen Wright three months before his arrest and approved the use of marijuana to relieve the pain.

Justice William Bedsworth, writing for the Court of Appeal, said the issue of whether Wright possessed more marijuana than he might reasonably need to relieve his symptoms was “a jury call.” Nothing in Proposition 215, the jurist noted, specifies the strength, quality, or quantity of marijuana that will qualify as medicinal.

“Taken as a whole, it is safe to say the evidence was reasonably susceptible of different interpretations,” he wrote. “...California law—as many a chagrined trial judge will attest—does not bar defenses on the basis they are unlikely to succeed.”

Justice Eileen Moore concurred in the opinion, but Presiding Justice David Sills accused the majority of trying to rewrite Proposition 215.

“[The initiative] states, in quite straightforward language, that it applies to a person charged with simple possession or cultivation of marijuana as found in Health and Safety Code sections 11357 or 11358; no other charge is exempted from prosecution,” the jurist wrote. The fact that jurors could have found him guilty of simple possession as a lesser included charge, but did not, indicates that Wright could not have prevailed on a compassionate use defense in any event, Sills argued.

In other action at yesterday’s conference, the justices:

•Agreed to decide whether the California Public Records Act requires disclosure of the name of a disciplined law enforcement officer along with other records of an administrative appeal.

The justices unanimously voted to hear a bid by police unions to overturn the Fourth District’s Sept. 16  decision in Copley Press v. Superior Court, D042251.

Div. One held that San Diego County’s Civil Service Commission took too broad a view of a 2002 appellate court ruling when it redacted the name of a sheriff’s deputy from records of a discipline appeal released to a newspaper company.

That court’s decision in San Diego Police Officers Association v. City of San Diego Civil Service Commission, 104 Cal.App.4th 275, holding that a statute protecting the confidentiality of peace officer personnel records barred their disclosure in public disciplinary hearings, did not authorize the redaction of anything other than the personnel records themselves from the material released to The Copley Press, Inc. in response to the company’s California Public Records Act request, Justice Alex C. McDonald wrote.

 •Agreed to decide whether last year’s amendment to the Fair Employment and Housing Act, allowing an employer to be held liable for failure to prevent racial or sexual harassment of an employee by a non-employee, is to be applied retroactively.

This district’s Div. Five answered that question in the affirmative, in an unpublished opinion in Adams v. Los Angeles Unified School District, B159310, but the Fourth District’s Div. Two reached the opposite conclusion in Carter v. California Department of Veterans Affairs, E030908.

•Declined to review an Aug. 25 ruling of the Third District Court of Appeal that the attorneys for a personal injury plaintiff were not subject to disqualification for unknowingly hiring a defense consultant to serve as an expert witness, where the disqualified attorney had no notice of the expert’s dual status until the issue was raised by the defendants’ lawyer and ceased all direct contact with the expert after his dual role was revealed, and where undisputed evidence demonstrated that the plaintiff’s lawyer obtained no confidential information from the expert.

No justice voted for review in Collins v. State of California, C042832.

•Agreed to decide whether Family Code Sec. 4502(c)—barring an obligor spouse from asserting the defense of laches in an action to recover child, family, or spousal support—applies retroactively to facts that occurred before its enactment. The Third District Court of Appeal ruled that it does, in In re Marriage of Fellows, C044636.

•Agreed to determine the scope of two since-amended 1993 laws authorizing the Franchise Tax Board to issue deficiency notices against taxpayers who fail to notify the board that they have been assessed additional federal taxes. The FTB argues that the laws effectively revived time-barred claims for state taxes; Los Angeles Superior Court Judge Lee S. Edmon agreed, but Div. One of this district’s Court of Appeal reversed in Ordlock v. Franchise Tax Board, B169465.


Copyright 2004, Metropolitan News Company