palmspringsbum - Felony Cultivation Return of Property Motion


 1       2d 216, 222 [153 P.2d 344].)  Of course, in the absence
         of reasonable or probable cause to believe that a de-
 3       fendant is guilty of possession or cultivation of mari-
         juana, in view of his or her status as a qualified pa-
 3       tient or primary caregiver, the grand jury or the mag-
         istrate should not indict or commit the defendant in
 4       the first place, but instead should bring the prosecu-
         tion to an end at that point.
 5
         And in People v. Tilehkooh (2004) 113 Cal.App.4th 1433,
 6
    1443:
 7
              We are directed to give sense to all of the terms
 8       of an enactment.  To do so requires that we give effect
         to the purposes of section 11362.5 to ensure the right
 9       to obtain and use marijuana.  In particular, we must
         give effect to subdivision (b)(1)(A), which estab-
 10      lishes a "right to obtain and use marijuana for medi-
         cal purposes" and which links the right to use mari-
 11      juana with the prohibition on the imposition of a
         "criminal prosecution or sanction."  It is readily ap-
 12      parent that the right to obtain or use marijuana is
         not "ensure[d]" if its use is not given protection
 13      from the adverse consequences of probation.  Since the
         use of marijuana is not a crime, the term "prosecution
 14      or criminal sanction" must be read to apply to any
         criminal sanction for the use of marijuana [including
 15      probation].
 
 16                                 III.
 
 17                             Conclusion
 
 18      For the foregoing reasons the defendant requests this court
 
 19 grant the motion and order the return of defendant's property to
 
 20 defendant.
 
 21
 
 22      Dated:  May 7, 2004
 
 23                            Respectfully submitted,
                               JOHN E. ROTH
 24                            Law Offices of the Public Defender
 
 25
 
 26
 
 27                            William B. Sasnett, Jr.
                               Deputy Public Defender
 28                            Attorney for defendant
                               Jeffrey Craig Canada
 
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 Defendant's Motion for Return of Property