palmspringsbum - Felony Cultivation Return of Property Motion


 1       On April 1, 2004, the case was dismissed after a Penal Code
 
 2  section 995 motion to set aside information was granted.
 
 3                              II.
 
 4                      POINTS AND AUTHORITIES
 
 5                               A.
 
 6                  The Code precludes prosecution
 
 7       The Compassionate Use Act of 1996 provides, in Health and
 
 8  Safety Code section 11362.5(b)(1)(B):
 
 9            To ensure that patients and their primary caregiv-
         ers who obtain and use marijuana for medical purposes
 10      upon the recommendation of a physician are not subject
         to criminal prosecution or sanction.
 11
 
 12      And section 11362.5(d):
 
 13           Section 11357, relating to possession of mari-
         juana, and Section 11358, relating to the cultivation
 14      of marijuana, shall not apply to a patient, or to a pa-
         tient's primary caregiver, who possesses or cultivates
 15      marijuana for the personal medical purposes of the pa-
         tient upon the written or oral recommendation or ap-
 16      proval of a physician.
 
 17                                 B.
 
 18      Case law grants limited immunity from prosecution
 
 19      People v. Mower (2002) 28 Cal.4th 457, 473:
 
 20            Because the grant of limited immunity from prose-
         cution in section 11362.5(d) operates by decriminaliz-
 21      ing conduct that otherwise would be criminal, a defen-
         dant moving to set aside an indictment or information
 22      prior to trial based on his or her status as a quali-
         fied patient or primary caregiver may proceed under Pe-
 23      nal Code section 995.  To prevail, a defendant must
         show that, in light of the evidence presented to the
 24      grand jury or the magistrate, he or she was indicted or
         committed "without reasonable or probable cause" to be-
 25      lieve that he or she was guilty of possession or culti-
         vation of marijuana in view of his or her statue as a
 26      qualified patient or primary caregiver.  (Penal Code
         section 995 (a)(1)(B), (2)(B): "'Reasonable or prob-
 27      able cause' means such a state of facts as would lead a
         man of ordinary caution or prudence to believe, and
 28      conscientiously entertain a strong suspicion of the
         guilt of the accused.  "reasonable and probable cause'
         may exist although there may be some room for doubt."
         (Lorenson v. Superior Court (1950) 35 Cal. 2d 49, 56-57
         [216 P.2d 859], quoting People v. Nagle (1944) 25 Cal.
 
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 Defendant's Motion for Return of Property