People v. Colvin, 2012 WL 579867 (Cal.App. 2 Dist.) (Feb. 23, 2012)
This California state court appellate decision is a major victory for criminal defense attorneys and the medical marijuana community in general, in Los Angeles and throughout California. The decision held that medical marijuana collectives and cooperatives that comply with certain rules and guidelines may operate as legitimate storefront dispensaries.
The court held that a defendant named William Colvin, who co-owned and operated cooperative medical marijuana dispensaries, was entitled to a defense under the Medical Marijuana Program Act (MMPA), in a criminal prosecution where he was detained and arrested on criminal marijuana transportation charges while transporting in his vehicle one (1) pound of marijuana from one medical marijuana dispensary to a second. Defendant transported the marijuana between two branches of the same collective, the Holistic Hollywood.
The Court found that Colvin was entitled to a defense under the part of the MMPA codified under the California Health & Safety Code §11362.775, which provides an affirmative defense to marijuana possession and other similar marijuana related criminal charges to qualified patients “who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes.” The court held that this defense applies to charges of transportation of marijuana where:
- The defendant was a qualified medical marijuana patient.
- The collective/cooperative operated by the defendant was a “legitimate dispensary.”
- The collective/cooperative had 5,000 members and it was unlikely, and unnecessary, that all of them participated in the marijuana cultivation process.
- The collective/cooperative had a business license, was a nonprofit corporation, and was in compliance with appropriate laws and guidelines.
- Only patient members of the collective/cooperative were involved in cultivating marijuana which was not acquired from an outside source.
The Court rejected the lower court’s decision that transportation of marijuana was not protected under the medical marijuana statutes because “transportation had nothing to do with the cultivation process.” The Court thus affirmed the notion that the efforts of patients organized into collectives and cooperatives were not limited to cultivation only.
The Court also specifically rejected the often-repeated prosecutorial argument that California medical marijuana laws protect only those medical marijuana collectives and cooperatives that involve “some united action or participation among all” members or that the law does not condone large scale, wholesale-retail marijuana networks like Holistic. According to the Court, the collective’s size and the extent to which members participate in it does not matter.
Most significantly perhaps, collectives and cooperatives organized into retail style storefront dispensaries that make money to pay expenses such as rent, utilities, lights, and other business necessities were recognized as legal. Equally significant was the fact that the Court approved of the fact that the collective paid defendant approximately $400 per week and that Colvin was among 14 or so members who cultivated marijuana for the collective and the growers were reimbursed for expenditures such as fertilizer, hydroponic equipment and lighting. The Court held that it is legal for the cultivators to grow marijuana and then drop it off at the collective for other patients to buy.
Comments and Caveats: It is the opinion of this law firm that the most significant legal controversy relating to the California medical marijuana laws is whether members participating in a collective/cooperative are entitled to financial compensation for their labor and services to the organization. The statutes do not appear to specifically authorize such compensation but they do not appear to prohibit it either. If compensation for services is legal, then it stands that collectives/cooperatives operating as retail style storefronts are legal as well. The Colvin decision does not specifically an unequivocally say that such compensation is legal. However, it goes a long way towards such legalization by mentioning, and seemingly approving of the fact, that the defendant in this case was paid by the collective approximately $400 per week.
It is unclear how long this decision will be valid law and whether it will appealed to and perhaps overturned, in whole or in part, by the California Supreme Court.