COURT OF APPEAL THROWS OUT MARIJUANA CONVICTION

Rules Compassionate Use Defense Wrongly Barred

An Orange County man's conviction for possessing marijuana was thrown out yesterday by an appellate panel that held his right to a "compassionate use" defense under Proposition 215 had been violated.

In a 2 to 1 decision, the Fourth District Court of Appeal's Div.  Three granted Shaun Wright a new trial on charges of transporting marijuana and possessing it for sale, leaving intact his conviction for driving with a suspended license, to which he pled guilty.

The justices said Orange Superior Court Judge James A.  Stotler was in error when he barred Wright's attorney from presenting evidence in support of a Proposition 215 defense and declined to instruct the jury regarding the measure.  The initiative provides that a defendant charged with possessing or cultivating marijuana may assert as a defense that he was using the drug for medicinal purposes on a doctor's recommendation.

Stotler based his order on his conclusion that the quantity of marijuana in Wright's possession, 19 ounces, precluded his claim that he only had the drug for personal medicinal use.

Wright was arrested by Huntington Beach officers who stopped him as he was leaving a carwash.

According to testimony, the officers had received an anonymous tip that there was marijuana in Wright's pickup truck.  After one of the officers approached the truck, noticed a backpack on the seat, and smelled the odor of marijuana, he asked Wright to step out and eventually seized marijuana from his person as well as from the backpack.

At a hearing outside the presence of the jury, Wright testified that he has used marijuana for medicinal purposes since 1991, to relieve the pain of various physical injuries.  He said he both smokes the drug and adds it to his food.

A physician, specializing in alternative medicine, testified that he had seen Wright three months before his arrest and approved the use of marijuana to relieve the pain.

Justice William Bedsworth, writing for the Court of Appeal, said the issue of whether Wright possessed more marijuana than he might reasonably need to relieve his symptoms was "a jury call." Nothing in Proposition 215, the jurist noted, specifies the strength, quality, or quantity of marijuana that will qualify as medicinal.

"Taken as a whole, it is safe to say the evidence was reasonably susceptible of different interpretations," he wrote.  "While a rational trier of fact could certainly find that Wright possessed the marijuana in his truck for monetary, not medical, reasons, Wright presented sufficient evidence to support a contrary conclusion if believed....The amount of marijuana, the scales found in his car and the packaging of the marijuana diminish his chances of success with that defense, but California law-as many a chagrined trial judge will attest-does not bar defenses on the basis they are unlikely to succeed."

Justice Eileen Moore concurred in the opinion.

Presiding Justice David Sills, dissenting, accused the majority of trying to rewrite Proposition 215.

"[The initiative] states, in quite straightforward language, that it applies to a person charged with simple possession or cultivation of marijuana as found in Health and Safety Code sections 11357 or 11358; no other charge is exempted from prosecution," the jurist wrote.  The fact that jurors could have found him guilty of simple possession as a lesser included charge, but did not, indicates that Wright could not have prevailed on a compassionate use defense in any event, Sills argued.

The case is People v.  Wright, G031061.