In a Sept. 22 preliminary hearing in Santa Rosa, judge Andria K. Richey ruled that should Northstone Organics be in compliance with state law and Attorney General guidelines governing collectives, they can do more than cultivate marijuana (i.e., sell and transport).
Attorney Bill Panzer, who is defending two couriers for Northstone nabbed in Sonoma county with pot intended for Bay Area patients, told the judge he needed clarity on the law before he called Northstone's director Matt Cohen to the stand. If, as the Sonoma DA's office argued, no sales or transport are permitted under state law, Panzer said he'd have to advise his client about his fourth amendment rights. DA Scott Jamar objected, raising federal law, and the judge first said she couldn't give a ruling without hearing evidence, but Panzer pressed the point and the judge finally said, “I don't find that to be the law. I know that's what the [DA's] brief said but I can't believe it's what you're arguing.”
The hearing began with cross-examination of Sonoma sheriff's deputy Cash, who was called as an expert witness. Panzer asked Cash how he determined the price of outdoor-grown pot — was it from the Rand study only? Cash replied he also saw a Power Point presentation at a CNOA officers meeting in LA, but hadn't reviewed the information since. That presentation said indoor pot cost 87¢ to $1 per gram to grow, and that outdoor was significantly lower.
Cash also said he'd spoken to “hundreds of people” and saw receipts for their costs, such as soil, drip irrigation supplies, nutrients, water pumps, stakes, etc. but in no case could determine the cost of those items for growing 99 plants outdoors.
Panzer then directed Cash's attention to the Rand study, titled “Estimated cost of producing legalized cannabis,” including cultivating and processing costs “if cultivated like corn.” Did it include the cost of zip-ties at $50/plant? No, was the answer. Or security? Again, no. Cash misspoke when he opined that probably the wholesale price of pot would plummet “once it becomes legal.”
Cash seemed unclear on what a “cooperative” was, so Panzer showed him California Health & Safety Code Section 11362.768 and the Attorney General Guidelines. The DA objected on relevance and Panzer laid out his possible defenses, which he later used in a motion to dismiss:
1. If the court rules that what the defendants were doing was illegal, he would bring a new kind of entrapment by estoppel defense, since three branches of government and the courts all say it is legal;
2. If the court rules that what the defendants did was legal, it is “absurd — outrageous and without merit” to have brought these charges;
3. If the court rules that the law is ambiguous, he will bring due process/lack of fair notice (Chicago v. Morales 1998 SCOTUS decision)
The court denied the motion to dismiss without prejudice and asked Panzer to bring his affirmative defense. At this point Panzer asked for the above-mentioned ruling on the law before he brought his witness. Once he got it, he brought Cohen to the stand and asked him to about his license from the Secretary of State and Mendocino Sheriffs office, all over strenuous objection by the DA as to procedure, relevance, hearsay and kitchen sinks.
The hearing was continued until 9am, Monday, October 24 in Sonoma County courtroom 5 when Cohen and possibly the delivery drivers will take the stand. It seems the defense may have to subpoena all 34-36 of the patients the deliveries were intended for, and pay “outrageous” discovery fees to the Sheriff for copying any evidence in their possession.
Attending the hearing were representatives from Americans for Safe Access, Peace in Medicine, Safe Access to Medical Marijuana and CaNORML. One elderly supporter in court said her partner who suffers from pancreatic cancer had his medical marijuana taken both times by Sonoma deputy sheriffs. The drivers both seemed like upstanding, nonthreatening citizens to me.
In another case in Tehama county where the DA made a similar “Cooley” argument (no sales or transport allowed), Panzer has been granted a stay from the court that ruled in favor of that interpretation pending an appeals writ.