Thursday, May 1, 2014
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C.A. Rejects Grower’s Claim of Medical Marijuana Immunity
By a MetNews Staff Writer
The founder of a large-scale and potentially lucrative marijuana growing business cannot claim immunity from prosecution under the state’s Medical Marijuana Program Act, even if the drugs were intended to be sold exclusively to medical users and the defendant was a medical user himself, the Court of Appeal for this district has ruled.
Div. Five Tuesday affirmed Brian Edward Mitchell’s Los Angeles Superior Court conviction for cultivating marijuana, agreeing with Los Angeles Superior Court Judge Hilleri G. Merritt that none of the immunities of the MMPA applied.
According to testimony, Mitchell was growing marijuana out of a commercial location in San Fernando. A business license and business occupancy license for the premises listed the name of the business as San Fernando Luthier, and said the nature of the business was making guitars, drums, and other instruments.
A State Board of Equalization seller’s permit also indicated that Mitchell had a stringed instrument business at that location.
A San Fernando police officer testified that he had no idea marijuana was being grown on the premises before he responded to a 2009 burglary call. Mitchell, he said, met him at the business, walked with him through the various rooms, and said about $10,000 worth of marijuana had been stolen. Nothing on the premises, the officer said, indicated that any musical instruments had been or were being made, and Mitchell told him the instruments business “never got off the ground.”
A Los Angeles detective testified as an expert that with the equipment seized from the San Fernando location, Mitchell could have grown about $2.9 million worth of marijuana annually and earned over $1 million per year in income. A defense expert testified that the figures were exaggerated and that a typical grower would grow less than one-third of the amount projected by the prosecution expert.
A prosecution witness, Norman Conway, testified that he and three other men had formed a corporation called Keeping It Medical in 2006 for the purpose of operating a medical marijuana dispensary in Los Angeles. He said he met Mitchell in 2007; the defendant had suffered a serious injury five years earlier and had a medical marijuana card.
Mitchell seemed very knowledgeable about marijuana growing and started helping the dispensary grow the drug on its premises. But the premises had very little room for growing, he noted.
Prosecutors produced two contracts between Mitchell and KIM, indicating that he was going to supply the dispensary with specified quantities of marijuana for between $50,000 and $60,000 per year.
Presiding Justice Paul A. Turner, writing for the Court of Appeal, said that none of the limited immunities of the MMPA applied to Mitchell.
Mitchell, he said, could not show that he had a relationship with any other medical user that would qualify him as the user’s “primary caregiver,” nor was he immune as a medical user himself because “the quantity of marijuana on defendant’s premises, including that taken during the burglary, exceeded the amount reasonably necessary for defendant’s personal needs.”
The case is People v. Mitchell, 14 S.O.S. 707.
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