(The term Hornbooks derives from the hornbook, an early children's educational tool, implying that the material is basic. The term “hornbook law” is sometimes used to describe basic, settled legal principles.)
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Kyle Stornetta is a scion of a prominent Point Arena family. Clay Brennan is a scion of a federal court judge whose convenient connections got him appointed to the Mendocino County Superior Court. DA David Eyster is the scion of David Eyster, long time local attorney. And there's Keith Faulder, Mendocino County ace criminal defense attorney, scion of America's confused drug laws, and a go-to guy if you're guilty and can afford him.
DA Eyster's disposition of marijuana cases is popular with taxpayers, not popular with some sectors of local law enforcement and citizens uninvolved and/or hostile to the drug trade.
The four scions appeared in Ten Mile Court, Fort Bragg in March of 2013 for a courtroom battle that neatly defined the DA's 11470.2 policy, popularly summed up as the “selling” of misdemeanors to felony pot growers for cash money.
Stornetta and his girl friend had been popped for growing dope, lots of dope. There was that and there were gun and Fish and Game charges unrelated to dope, er, the medical marijuana Stornetta said he was growing.
Stornetta's initial prosecutor was Deputy DA Timothy Stoen who was reinforced by the DA himself, David Eyster. Keith Faulder represented Stornetta, and the late Thomas Croak of the Office of the Public Defender represented Stornetta's co-defendant, Katherine Frost.
Funny thing was, all of the above were on the same side, Stornetta's side.
Brennan: “What’s the status of the case?”
Faulder: “I believe we have a resolution, your honor, and if it’s all right with Mr. Stoen I’ll state it for the record.”
Brennan: “Go ahead.”
Faulder: “My understanding is that The People will be adding a Count Six to the felony complaint alleging a violation of Health and Safety Code 11357 (c.), a misdemeanor possession of more than one ounce of marijuana. Mr. Stornetta would be entering a no contest plea to that charge. He would be placed on 24 month summary probation in that matter with the following conditions, subject to court approval: He will complete 200 hours of community service; he would pay an eradication fee to the Mendocino County Sheriff’s Office pursuant to Penal Code Section 11470.2 in the amount of $42,600; he would forfeit marijuana that was seized and also forfeit handguns that were seized during the search warrant. He would be given back the long guns that were seized, however. Those would be returned to Mr. Stornetta. Mr. Stornetta would also be pleading no contest to Count Four, which is unlawful possession of wild steelhead, and we’d ask the Court by stipulation to delete the barbed hooks language from that count. He would be placed on a 36-month summary probation in that matter and the purpose for that is that he’s to have a restricted fishing license. He would be prohibited from sport fishing for three years or during the period of that probation. He would still be able to do commercial fishing, as he does commercial fishing. He would do 45 days in the county jail. We would also ask the Court to approve the sheriff’s work alternative program. There were seized ducks and steelhead in that matter and those would be forfeited, of course. The balance of the charges against Mr. Stornetta in that complaint would be dismissed and, I’m sorry, I forgot to add that the agreement includes that he would be subject to search and seizure during the probationary period and all charges would be dismissed against Ms. Frost.”
For $42,600 the guy walks on dope, gun, and major poaching charges.
Stornetta took the fish from the battered Garcia River where it runs through the Stornetta property. Many people, and many thousands of dollars have been spent on a huge effort to bring the Garcia back to life as the major fish stream it once was. Stoen: “Your honor, there’s also a requirement that any ballasts and other equipment such as lights and other tools of the trade would be deemed forfeited together with all the marijuana, which he did say marijuana but not the ballasts and the lights, and there would be no cultivation of marijuana without a valid physician’s 215 recommendation and then only in compliance with the same…”
Stoen was referring to the now-defunct rules of the Sheriff’s zip-tie program, but Judge Brennan interrupted to have the prosecutor go back and restate the fact that the defendant would be allowed to refresh his 215 card and replant his garden.
And right here it might be useful to point out that Mendocino County, like the rest of America but more so, is officially schizophrenic on marijuana policy. There are storefront marijuana stores throughout the county, several thousand of the county's 90,000 residents grow marijuana, many more smoke it, some growers get busted, some don't. The ones who get busted tend to be the In-Your-Facers, the large-scale grows, the grows where the proprietor is suspected of related crimes. Growers like Stornetta.
Stoen: “No possession or cultivation of marijuana without a valid physician’s 215 recommendation and then only in compliance with the same. And, your honor, with the Court’s permission I have Warden [Don] Powers here who wants to explain one of the conditions of this sentence so Mr. Stornetta is very much clear with it.”
Not hard to see where The People vs. Stornetta is going, is it? Stoen's saying Stornetta can go back to growing so long as he has note from his doctor saying he needs the herb for his lumbago. Stoen is the prosecutor here, if you're already confused.
Game Warden Powers: “Good morning, your honor. Basically, in an effort to make sure there’s understanding between all the parties, I’d like to see Mr. Stornetta stay out of trouble and that there is going to be an interstate compact so if he’s going to go somewhere else that he’s not fishing because he’s going to be on a list if tries to get a fishing license there.”
Stoen: “Thank you.”
Judge Brennan: “What quantity of marijuana is involved in this case?”
Faulder: “There were plants of two to three feet high. The total number of plants were 397 and then there were 227 clones that were about two inches tall, and then my understanding is there were 67 plants at another location that were also two to three feet tall.”
Brennan: “And was there any harvested marijuana?”
Faulder: “There was two and a half pounds that were hanging, and that was it to my knowledge.”
Stoen: “Your honor, I have Officer Bruce Smith here from the drug task force if he could — I’d like him to elucidate to make sure the court knows the number of marijuana plants.”
Smith: “There was 852 with 67 of those at a second location which was tied to Mr. Stornetta.”
Faulder: “227 of those were the one to two-inch clones.”
Smith: “No, they were probably four to six-inch clones, but they were rooted clones, already plants.”
Brennan: “And how does the figure of $42,600 as the cost of eradication — how was that calculated?”
Faulder: “$50 a plant, even the rooted clones.”
Brennan: “And how is it arrived at that the cost of destruction is $50 a plant? Why is that determined a reasonable amount?”
Faulder: “That’s something that Mr. Eyster, the district attorney had, I believe, spoken to Sheriff Allman about and that was a determination they came up with… I can advise the Court that this has been a standard figure used in the Ukiah courts in arriving at an eradication fee number.”
Brennan: “All right. I’m going to have to think about this. I’m just concerned. I mean, this is a large number of plants. The payment of $42,600 to have what would normally be — what appears to me to be a felony charge being reduced to a misdemeanor. I have some qualms about that.”
That's the issue here, there and everywhere with the DA's policy. The alternative, though, is an expensive trial and all the cost that involves, which costs the public purse a lot more than $42,000.
Faulder: “Well, there is more information, of course. There were valid medical recommendations that were found. Mr. Stornetta is waiving any right to present that affirmative medical defense, that has been discussed with counsel, and he’s taken responsibility for any amount that was over what he might lawfully be entitled to as part of the medical marijuana laws.”
Translation: Stornetta's real sick but he'll magnanimously agree that he had a little too much medicine.
Brennan: “Well, the strength of that defense in light of 852 plants is a bit suspect as far as I’m concerned. I’d have to hear more information about it, but my — at first blush that seems a bit preposterous. I’m going to take a short recess and take a look at this.”
Whereupon a short recess was taken.
Brennan: “All right. Recalling the Stornetta/Frost matter. I’ve just been reviewing Health and Safety Code Section 11470.1(e.) (1), and it says, ‘The burden of proof as to liability shall be on the plaintiff and shall be by a preponderance of the evidence in an action alleging that the defendant is liable for expenses pursuant to Paragraph One of Subdivision A.’ That’s referring, of course, to the expenses of seizing and eradicating the controlled substance. ‘The burden as to liability shall be on the plaintiff and shall be by clear and convincing evidence in an action alleging that the defendant is liable for expenses pursuant to Paragraph Two of Subdivision A. The burden of proof as to the amount of expenses recoverable shall be on the plaintiff and shall be by a preponderance of the evidence in any action brought pursuant to Subdivision A.’
"And I think my question is — well, then it also says under Paragraph J that ‘the Legislature finds and declares that the penalties for recovery of the expenses incurred enforcing the provisions of this division shall not supplant criminal prosecution for violations of those provisions but shall be a supplemental remedy to criminal enforcement.’ So I don’t know how this figure of $50 per plant is arrived at — and it also says under Paragraph F2, ‘the expenses incurred as a proximate result of the defendant’s manufacture or cultivation of a controlled substance in violation of this division are the only expenses that shall be recoverable.’ And so one question I have …”
Brennan was just getting started in his thinking out loud, and while it may seem unfair to cut him short, he rambled on over this head-scratcher until prosecutor Stoen broke in.
Stoen: “Your honor, if I may?”
Brennan rambled on over Stoen, “…a tremendous amount of marijuana is being reduced to a misdemeanor upon the payment of $42,000, that raises a real troubling impression for the Court that felony conduct is being basically bought off…”
Bingo again, Judge! Keep it clear, keep it simple. This isn't the Talmud we're parsing here.
Stoen: “Your honor, if I may?”
Brennan, on a roll, continued, “…a large amount of money which I think subverts the institution of the courts. Well, but so, you know, before I can approve this kind of a disposition I would need to hear evidence that the $42,000 is actually linked and meets the burden of proof set forth in the statute to justify this fine…”
Faulder: “Just for clarification, it’s not a fine and it’s not being calculated under 11470.1 but under 11470.2. I know that they’re similar statutes, but 11470.2 authorizes the district attorney to seek these recovery costs rather than filing a civil suit. And the amount of the costs — of course, if there were a civil action, the Court would have to determine the reasonable amounts. But there’s been a stipulation in this case that that’s the reasonable amount of the recovery, and there’s nothing before the court that this is buying a felony off and getting a misdemeanor in exchange. There’s just a stipulation before the Court that the reasonable amount of eradication costs in this case was $50 a plant, in total $42,600. The prosecution has determined that that is in the interest of justice…”
You see why this guy is successful? He's got the Judge and everyone else scurrying for the law books to see if Stornetta is buying his way out of major felonies or the $42 thou is simply the way the cost of the "eradication" has been calculated.
Brennan: “All right. Well, I want to have an opportunity to — I’m sorry I’m taking time on this but this is an important issue to the court.”
Faulder: “I understand.”
Brennan: “…and so I want to have another opportunity to review 11470.2…”
Jesu Cristo, Judge! You had it clear the first time, and here you go plunging through the Looking Glass.
Another “brief” recess so the Judge can confuse himself. More.
Brennan: “Okay. We’re back on the record. All right. I’ve examined 11470.2 and it does mention that ‘the trier of fact shall make an award of the expenses if proven, which shall be enforceable as any civil judgment.’ So I think at this stage absent any further information I can’t approve this plea bargain absent having some kind of hearing for the Court to hear evidence as to how this eradication amount of $42,000 was arrived at… [another lengthy, repetitive discourse about how the number was arrived at, ending with this odd comment from the judge …"It seems like it’s extortion of defendants and it seems like it’s just buying a misdemeanor and I can’t abide by that.”
That's right, Judge, but you've opened the way to major obfuscation, and sure enough here comes the master obfuscator.
Faulder: “I can’t abide by that either, your honor, and that’s not what’s happening here and, frankly, I can’t agree with the Court on this at all. First of all, the Court is creating a position for itself that’s not a matter of dispute. The Court can’t have a hearing on an issue that’s not being contested, and the amount of eradication cost isn’t in dispute. Neither the People nor the defense are asking the Court to resolve an issue there because it’s not in dispute. There is a stipulation… If the court doesn’t want to take the plea, I understand. But I don’t think the Court can create a role for itself in resolving a dispute that doesn’t exist…”
Good grief. One wonders how Faulder can keep a straight face.
Brennan: “I understand your point and I’m happy to allow you to make your record and express your point of view. What I’m looking at is that … if there was a conviction after trial I suppose there’s an opportunity for evidence in the record where the Court could make or at least there’s an opportunity for evidence to be in the record as to how the eradication costs were substantiated. But in terms of having this Court approve a disposition in the absence of any information for me to make a determination that these are reasonable expenses, I don’t feel I can approve it.”
Faulder: “…The prosecution and the defense have evaluated all the evidence and these are the things that we do not dispute, these are the things that we agree with, and so we’re not presenting to the court what’s true or what’s not true… and I mean this with all respect, your honor, the court can’t really go into whether or not the stipulations are fair or reasonable for the parties to make…”
The prosecution and the defense; get it Judge? We've already played Let's Make A Deal and here you come saying you think the deal stinks. Which, of course, it does, but if the DA prosecuted all the pot cases he gets in a county were pot is the number one ag export crop, well, the real question is, What smells more, getting some cash for law enforcement out of these crooks or losing public cash prosecuting them. People who can pay $42,600 cash fines can stay in court for a long time.
Brennan: “Well, I’m being asked to approve a disposition where the original charge of a felony is being reduced…”
Stoen: “Your honor, can I make a comment, please?”
Brennan: “My problem is that a marijuana case involving 852 plants at one location and 62 plants at another location is being reduced to a misdemeanor upon payment of $42,000.”
Judge Brennan's finest moment. He's never seen so clearly.
Faulder: “That’s not what’s happening, judge. The court’s inferring that and we’re telling you that that is not what’s happening… It’s not a — I can’t remember the language the court used — but it’s not a bribe. It’s not anything. We’ve looked at all the evidence, including the affirmative defenses that can be raised, and the parties agreed that this is the appropriate disposition.”
Brennan: “I disagree.”
Public Defender Croak: “Your honor. There’s a number of facts here, including the fact that there’s substantial evidence, physical evidence, that this was a medical marijuana grow, that Mr. Stornetta as well as other people had a medical need… This is one of the factors the People took into consideration along with a number of other factors in deciding this is to be an appropriate resolution. There are some factual issues and some proof issues — and the court needs to realize that the People took all those factors into consideration in reaching this disposition.”
Not a bribe and substantial evidence that this was a medical marijuana grow.
We were all the way through the Looking Glass.
Faulder: “And just for the record, your honor, it appears the court is substituting its judgment for the prosecution’s, and I don’t think that’s appropriate. There’s a separation of powers issue there. The court is supposed to impartially hear evidence, but if there’s stipulations of fact those facts have been proved.”
Brennan: “I think whether or not — the court doesn’t have to abdicate its authority… so I’m not sure where that’s going to leave us today. I mean, I could — how does counsel want to proceed?”
Faulder: “I just have to speak frankly, your honor. I mean, I’m worried about my client being able to get a fair hearing now because the court already appears to have made conclusions about his guilt… so I don’t think I’ve ever done this before but I would ask the court to accept a 170.6 [peremptory challenge; without cause] at this point.”
Brennan: “Well, I’m not sure that it’s — I have to look and see if it would be considered timely. I’m not sure I’ve even made a decision on any disputed issue.”
Faulder’s motion to excuse the judge, after a lengthy argument and another recess for the judge to look into it, was denied. The date of March 26th was set to resume the case, and DA Eyster himself made the hour-long trip to the Ten Mile Court from his office in Ukiah for that one.
We can imagine Eyster fuming. "This thing had already been worked out and here we have Judge Brennan suggesting that a rich kid from a rich family is bribing his way out of trouble! What the hell is this? Brennan's messing with the whole concept here."
The session began with Judge Brennan making a long preparatory speech about his experience with marijuana cultivation and his ideas on how much profit was probable in the Stornetta case.
Almost the entirety of what Keith Faulder said in response will have to be cut as well, for the same considerations of space available. But here’s the gist of it:
Faulder: “…I have to tell you that I take some of the court’s comments personally, and I’m offended by some of it, frankly. But I just have to make some clarifying statements. The court heard no evidence in this matter, none at all. And I don’t think you meant to be disparaging when you said you heard no credible evidence, only statements of counsel. But the court didn’t hear any evidence. Nobody swore anything under penalty of perjury. Nobody gave the court any evidence, and the court made, I think, very broad assumptions based on what it heard both from counsel and law enforcement officers, Fish and Game Officer Powers, and task force Sergeant Smith who also approved this disposition. What I told the court last time and I’ll repeat it now is that the court hasn’t heard all the evidence; in fact, the court hasn’t heard any of the evidence, and I think the only thing the court was disapproving of was how we arrived at an eradication number, and my position was that you weren’t the finder of fact. Your honor wasn’t the finder of fact, there was a stipulation, so there was no disputed fact…”
Faulder's indignation was impressive, and went on until Judge Brennan broke in with.... “There’s been no showing as to — I mean, Mr. Stornetta is a young person that — if I had $42,000 in cash when I was his age I would have felt like I was doing pretty well. I have some questions about where the money’s coming from. And it could be coming from his parents. It could be — I don’t know!”
Faulder: “You’re assuming there was cash, even, judge?”
Brennan: “Well, he’s going to have to come up with $42,000 to pay this eradication fee.”
Faulder: “Right, but you’ve assumed there was cash, and that’s not any evidence the court has heard.”
Brennan: “Right, but what I’m saying is there hasn’t been any showing on the potentially mitigating or other facts that might justify this disposition, and when I see how much marijuana is involved and that it involves a payment of $42,000 I am concerned that it’s creating the appearance of being able to buy different treatment under the law, buy a misdemeanor if you can afford it. Where people involved in the drug trade can as a cost of doing business pay a big chunk of money if they get caught.”
The Judge continued as a very beacon of truth.
Faulder: “Judge, that’s just absolutely offensive to me.”
Brennan: “I understand.....”
Faulder: “You’re saying my client is a drug dealer without hearing any evidence, and it’s just absolutely offensive.”
It want on with Faulder in high dudgeon, the Judge trying to cool him out.
Brennan: “Well, maybe I put it too strongly — I don’t mean to impugn your integrity. I have great respect for your integrity and your abilities as a lawyer. What I see as the bigger evil here, the problem, is this whole approach to using eradication fees to raise money for law enforcement in an environment of fiscal scarcity, and that’s one of the — I think that problem in conjunction with the” —
DA Eyster, teaming up with defense attorney Faulder, “That’s not true. That’s simply not true.”
Eyster: “The statute that the court is referring to was passed over 30 years ago at the time of financial well-being of the state of California counties. Senator Barry Keane said, ‘I want to help smaller counties have greater access and I want to have this mechanism to do so’.”
Brennan: “But its use in this county is a recent phenomenon.”
Eyster: “That’s because we’ve had some uneducated prosecutors who haven’t realized that if you study the law there’s tools out there that can be used to solve everyday problems without passing new laws. I get upset that our legislature is constantly passing new laws when all they have to do, judge, is go look at some of the old ones. This is something that I knew about in the old days and we actually did it in the old days. We used this. This is not a new phenomenon. The fact that I’m the district attorney and I actually understand the law, well that may be a new phenomenon around here and that’s been a phenomenon since 2011. But this is something that is not just, by the way, particular to Mendocino County. This has been used in San Diego County on a federal case involving the DEA. They sent me up their reports and asked for my input and they did the exact same thing with the approval of the federal government. It’s happening in Santa Barbara County. It’s happened in one of the Valley counties — and by the way, San Diego is not a poor county…”
Eyster's campaign speech eventually arrived within shouting distance of the point.
Eyster: “But I agree with Mr. Faulder. You are a judicial officer. I don’t know how you can come up with the statements you’ve come up with without hearing any evidence. Now, I’m also an elected official and I don’t need to explain to the court the separation of powers. I am equal to this court in the Constitution of the United States. The Voters of Mendocino County have entrusted their public safety in my hands. They’ve said we want you to take care of this business for us and I’m doing it, and if I’m doing something they think is wrong, I guarantee you that they will vote me out in the next election. But I’m willing to bet this court that they are very satisfied…. Now, the advantage I have over this court, and you know this from when you were working in the DA’s Office, is you get to hear the whole story. That’s the fun part of being the DA. You get to talk to the cops and hear the backstory; you get to talk to the defense attorney and hear the backstory; you get to hear everything. Do we tell the court everything? No, we don’t, because the court’s got a boring job. You just have to make sure it’s a level playing field, and that Mr. Faulder doesn’t violate my rights, and I don’t violate his client’s rights or Mr. Croak’s client’s rights. That’s what a judge is supposed to be: objective. So when I hear the court without any evidence pulling into this case values and figuring out how much you think this crop is worth, that’s information that I don’t even have and it’s surprising to me that you dare say these things. But also we have Sgt. Smith, who is probably one of the most rabid drug warriors in the county who is not in favor of 11470.2. He is not a person who comes and says yes, I want to do this more, but he understands that there’s limits to what we do. Not everyone gets offered this opportunity. It’s fact based. And so Sgt. Smith when I wasn’t even here, when Mr. Stoen was trying to take care of this, was fully briefed, he knows the backstory and he’s okay with this. We have Warden Powers who knows the backstory and he’s okay with this… and Mr. Stoen is not in here all the time acting like some pantywaist prosecutor. He’s a guy that actually pushes hard, prosecutes hard, and has good, good judgment, and he’s okay with this…”
Eyster finally got to the heart of his argument.
"The court is usurping the powers of the independent prosecutor. I believe it is a violation of the Constitution, and I don’t understand why the court would want to do that.”
Brennan: “No! The court has the authority inherent to approve or disapprove a plea bargain and that’s well-established.”
That's right, Judge. Ultimate authority rests with the judicial branch of government.
Eyster: “Okay. Let’s do it this way, judge.”
Brennan: “So — no, I just want to make a couple of comments.”
Eyster: “Well, we can, but we’re wasting time. I’ll dismiss the felony complaint right now, insufficient evidence, and then I’ll review it and I’ll file the appropriate charge.”
Eyster: “The court has no discretion to deny that motion.”
Brennan: “If you wish to dismiss the case, you may be right.”
Eyster: “I may be right? I am right.”
Brennan: “I’ll take a short recess and we’ll be back.”
Eyster: “Is the court having problems with the concept that I’m dismissing for insufficient evidence?”
Brennan: “No, I’m not having any problems with anything that you’ve said or done. I just want a chance to review some authorities and”—
Eyster: “This is Hornbook law, judge.”
Brennan scurried out to dust off his Hornbook.
It was probably during this interlude that Sgt. Smith said to Brennan’s bailiff that it looked like his judge was finally growing a set of balls.
Brennan: “All right. So Mr. Eyster, you’ve made a motion to dismiss and I need you to clarify for the court under what statutory authority is the motion being made?”
Eyster: “Insufficient evidence. Insufficiency of the evidence.”
Brennan: “Under Penal Code Section 1358?”
Eyster: “I don’t know what section. It’s insufficient evidence. I’m not asking you to do it in the interest of justice. I really had a motion for you to file an amended complaint, but apparently you’re not going to do that so this is the second motion.”
On it went until Eyster declared, “You’re abusing your discretion. I am a Constitutional officer. I obviously know the law better in this area than some and so the bottom line is you have no discretion to not grant this motion. All you are doing is punishing that young man, that young woman, that attorney, that attorney, and you’re trying to punish the prosecution and you’re grandstanding and at this point that’s not appropriate.”
Weep for the innocence of Point Arena youth!
Brennan: “All right. First of all, your remarks to the court are — I understand you are excited but you’re getting close to being contemptuous, and I’m going to deny your motion. Your remedies are to seek a writ” —
Eyster: “No. We’re not coming back on this case ever again, judge. We’re done.”
Brennan: “Well” —
Eyster: “This court is abusing its discretion.”
Brennan: “You have a Constitutional duty. I’ll have to look in then to recusing your office and perhaps referring it to the Attorney General if you’re not going to”—
Eyster: “I’ll bet you they won’t show up, judge. The bottom line is I will prosecute this case — why don’t you set it for a preliminary hearing right now? Why don’t you do that?”
Brennan: “Mr. Eyster, I’m going to warn you. Your conduct is bordering on contempt.”
Eyster: “Judge, I’m asking you to set it for a prelim — right now.”
Brennan: “You’re doing more than that.”
Eyster: “No, I’m asking you”—
Brennan: “You’re taking over the court. Your tone of voice is combative and disrespectful and you’re refusing” —
Eyster is, to say the least, a forceful character. Brennan, to say the least, is not.
Eyster: “I want the court to set this for a prelim and I want to do it — counsel?”
Brennan: “I’m going to take a recess and let tempers cool down a bit.”
Another recess, and the absurdity resumed.
Brennan: “All right. We’re back on the record. All right. So the court’s denying the motion to dismiss. We can go ahead and set the matter for a preliminary examination.”
Eyster: “I’d like to do it next week.”
Croak: “That’s fine, your honor. Ms. Frost will be available April 3rd.”
A very long story short? Stornetta bought his way out as per the original deal.
(Based on a court transcript by Christine Jones.)