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Sample Motions

David D. Diamond, #210258

1055 Wilshire Boulevard, Suite 1996
Los Angeles, California 90017
Telephone: (213) 250-9100
Facsimile: (213) 250-9161
Attorneys for Defendant

XXXXXXXXX

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - PASADENA

PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff
vs.
XXXXXXXXX - Defendant.
CASE No.: GAXXXXX

DEFENDANT'S INFORMAL REQUEST THAT THE COURT DISMISS CHARGES PURSUANT TO PENAL CODE §1385 AND PEOPLE V. KONOW (2004) 32 Cal.4th 995

Department:
Date:
Time: 8:30 A.M.

TO THE ABOVE-ENTITLED COURT AND TO THE DISTRICT ATTORNEY OF

LOS ANGELES COUNTY AND HIS REPRESENTATIVE:

Defendant XXXXXXXXX hereby respectfully suggests that the Court consider dismissal of the charges against him in this action pursuant to the provisions of Penal Code § 1385, on the grounds that Mr. XXXXXXXXX is a medical marijuana patient in accordance with California's Proposition 215, and Senate Bill 420, respectively codified as Health and Safety Code §§ 11362.5 and 11362.7-11362.83.

MEMORANDUM OF POINTS AND AUTHORITIES

Medicinal cannabis patient XXXXXXXXX is facing charges of possession of marijuana for sale in violation of California Health and Safety Code §13359. Mr. XXXXXXX is a lawful medical marijuana patient and caregiver. The attached documentation includes a copy of Mr. XXXXXXXXX Physician's Recommendation for medical cannabis. Despite Mr. XXXXXXXXX provision of ample discovery to raise the requisite "reasonable doubt" of medical usage, the District Attorney's Office has yet to dismiss the charges against Mr. XXXXXXX.

I. A DEFENDANT MAY INFORMALLY SUGGEST THAT A MAGISTRATE EXERCISE HIS OR HER AUTHORITY TO DISMISS IN FURTHERANCE OF JUSTICE PURSUANT TO PENAL CODE § 1385

A judge or magistrate has the inherent authority to dismiss an action in furtherance of justice. California Penal Code § 1385 states in pertinent part: (a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.

It is true that a defendant does not have a right formally to make a motion before a magistrate to dismiss a complaint in furtherance of justice under § 1385. By its terms, §1385 provides for the magistrate to exercise his or her authority to dismiss on this basis only on "his or her own motion or upon the application of the prosecuting attorney." (§ 1385, subd. (a))

However, it is settled that a defendant may "informally suggest" that the magistrate consider dismissal on the magistrate's own motion. (People v. Smith (1975) 53 Cal.App.3d 655, 657; accord,

People v. Superior Court (Flores) (1989) 214 Cal.App.3d 127, 137; see Rockwell v. Superior Court (1976) 18 Cal.3d 420, 441-442.) The California Supreme Court held in People v. Konow,

(2004) 32 Cal.4th 995, that it is appropriate for a court to exercise its Penal Code 1385 authority to dismiss charges in a medical marijuana case. In Konow, several co-defendants were held to answer

to charges of Health and Safety code § 11360-Sale of Marijuana. Despite the fact that Proposition 215 did not explicitly exempt medical cannabis patients and caregivers from being charged under §11360, the Supreme Court ruled that it was within the court's discretion to dismiss charges in such an instance. Furthermore, the Court held that, "a magistrate denies a defendant a substantial right affecting the legality of the commitment by erroneously and prejudicially failing to consider whether to dismiss a complaint in furtherance of justice under section 1385." Konow, (2004) 32 Cal.4th 995, at 1025. In this case, Mr. XXXXXXXXX has been charged with alleged violations of the Health and Safety code in connection with his bona fide medical cannabis activities. Health and Safety Code §11362.765 specifically exempts these lawful activities from prosecution. Mr. XXXXXXXXX humbly requests that the Court exercise its authority and sound discretion by dismissing the charges currently pending against him.

II. PROPOSITION 215 AND THE MEDICAL MARIJUANA PROGRAM ACT EXEMPT DEFENDANT FROM BEING PROSECUTED FOR LAWFUL MEDICAL MARIJUANA RELATED ACTIVITIES

The purpose of Proposition 215, codified as Healthy and Safety Code section 11362.5, is "to ensure that patients and their primary caregivers who obtain and use marijuana for medicinal purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction." Similarly, Senate Bill 420 or the Medical Marijuana Program Act was subsequently passed (and codified at Health and Safety Code §§ 11362.7-11362.83) to help clarify California's medical marijuana laws. Indeed, Health and Safety code § 11362.765 provides that, "(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." Thus, Health and Safety code § 11362.765 prevents Mr. XXXXXXXXX 's lawful medical marijuana related activities from being prosecuted under Health and Safety code § 11359 and § 11360, as in the instant case.

III. IN MOWER, THE CALIFORNIA SUPREME COURT HELD THAT MEDICAL MARIJUANA DEFENSES CAN BE RAISED IN PRE-TRIAL PROCEEDINGS, AND SECOND, THAT THE BURDEN OF PROOF IS MERELY TO RAISE A REASONABLE DOUBT THAT THE ACTIVITIES IN QUESTION WERE RELATED TO MEDICAL USE

At issue in the seminal California Supreme Court opinion of People v. Mower (2002) 28 Cal.4th 457 was whether evidence of a defendant's status as a qualified patient could be raised prior to trial. Answering affirmatively, the Supreme Court reasoned that because the "grant of limited immunity from prosecution in section 11362.5(d) operates by decriminalizing conduct that otherwise would be criminal," a defendant may move under Penal Code section 995 to set aside an indictment or information on the ground that he or she was indicted or committed "'without reasonable or probable cause to believe' that he or she was guilty of possession or cultivation of marijuana in view of his or her status as a qualified patient." Id. at 473. The Supreme Court left open the question of whether the issue could be raised by way of demurrer, motion to dismiss, or invitation to the Court to exercise its power to dismiss pursuant to Penal Code § 1385. "[W]e need not, and do not, reach the question whether a motion to set aside an indictment or information under Penal Code section 995 is the sole mechanism for raising the issue." Id. at 474.n.6. With regard to the requisite burden of proof, the Mower Court concluded that "as to the facts underlying the defense provided by section 11362.5(d), defendant is required merely to raise a reasonable doubt." Id. at 481. The Supreme Court analyzed the quantum of proof for analogous factual situations: Most similar is the defense of possession of a dangerous or restricted drug with a physician's prescription, against a charge of unlawful possession of such a drug. For that defense, a defendant need raise only a reasonable doubt as to his or her possession of the drug in question with a physician's prescription. 28 Cal.4th at 481. The Court concluded that medical marijuana patients should have the same burden as patients who use prescription drugs. "As a result of the enactment of section 11362.5(d), the possession and cultivation of marijuana is no more criminal -- so long as its conditions are satisfied -- than the possession and acquisition of any prescription drug with a physician's prescription." Id. at 482.

Therefore, Mr. XXXXXXXXX need raise only a reasonable doubt as to having the requisite "written or oral recommendation or approval or recommendation of a physician" in order to establish a defense under the Compassionate Use Act. See, Health & Safety Code § 11362.5(d). Defendant's possession and cultivation of medical marijuana cannot be more criminal than the possession and acquisition of any prescription drug with a physician's prescription, to paraphrase the Mower Court. In this case, Mr. XXXXXXXXX has more than raised a reasonable doubt that he had the required "written or oral recommendation or approval or recommendation of a physician" on or about the date alleged in the complaint. Furthermore, Mr. XXXXXXXXX provides documentation which shows that he was the designated caregiver for several qualified patients, and that he thus was in compliance with Health and Safety code §§ 11362.5 and 11362.7-11362.83. Defendant has raised the requisite reasonable doubt that his activities were lawful pursuant to California law. Therefore, he humbly requests that this court exercise its Penal Code § 1385 powers to dismiss the charges against him.

IV. MEDICAL MARIJUANA CAREGIVERS, OR PATIENT COLLECTIVES CAN LAWFULLY OBTAIN REIMBURSEMENT FOR PROVIDING MEDICAL MARIJUANA

In the case of People v. Urziceanu (2005) 132 Cal. App. 4th 747, the Third Appellate District Court recently held that Senate Bill 420 (codified as Health and Safety code §§ 11362.7-11362.83)

allows medical marijuana patients to associate together in collectives for the purpose of obtaining medical marijuana. The Court also held that caregivers or collective members may be reimbursed for providing medical cannabis. The Urziceanu Court held that: Under section 11362.765, subdivision (c), "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." This section thus allows a primary caregiver to receive compensation for actual expenses and reasonable compensation for services rendered to an eligible qualified patient, i.e., conduct that would constitute sale under other circumstances. People v. Urziceanu (2005) 132 Cal. App. 4th 747, at 784-785.

The Court further held that Senate Bill 420 represents a dramatic change in the prohibitions on the use, distribution, and cultivation of marijuana for persons who are qualified patients or primary caregivers and fits the defense defendant attempted to present at trial. 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. People v. Urziceanu (2005) 132 Cal. App. 4th 747, at 785. Thus, it is clear that Senate Bill 420 provides medical marijuana patients and caregivers the right to engage in collective arrangements in order to obtain medical marijuana. Furthermore,

Senate Bill 420 provides a defense to charges of marijuana sales under Health and Safety code §§ 11359 and 11360, and thus clearly anticipates allowing reimbursement for the provision of medical

marijuana. In this case, Mr. XXXXXXXXX has been charged with alleged violations due to his collective medical marijuana related activities. It is clear from the Urziceanu case that these types of arrangements are legal under California's Senate Bill 420. Furthermore, if sales and distribution of medical marijuana are legal under Senate Bill 420 and the holding in Urziceanu, then Mr. XXXXXXXXX 's mere cultivation is well within the ambit of California's Medical Marijuana laws.

CONCLUSION

Pursuant to the spirit and letter of Proposition 215, Senate Bill 420, and the California Supreme Court's related decisions in People v. Mower (2002) 28 Cal.4th 457 and People v. Konow, (2004) 32 Cal.4th 995, and the Third Appellate District's decision in People v. Urziceanu (2005) 132 Cal. App. 4th 747, defendant respectfully requests that the Court exercise its authority to determine that a sua sponte dismissal pursuant to Penal Code section 1385 isappropriate under the circumstances of this action.

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