On November 17, 2009 the Court of Appeal, Fourth Appellate District, Division One in San Diego released its decision in the case of   People v.  Nathan Archer (D052978) invalidating his conviction for the personal possession of marijuana.  Attorney Russell S. Babcock represents Mr. Archer and argued before the Court of Appeal.  The opinion was authored by Justice Patricia Benke

In the decision, the Court of Appeal agreed with Mr. Babcock’s arguments and the concession by the Attorney General that the part of the Medical Marijuana Law that imposes a limit on the number of plants  or quantity of marijuana that can be possessed by a medical marijuana patient is unconstitutional.  The California legislature attempted to set a limit of six manture plants and twelve plants in total that can be possessed by a medical marijuana patient.  The language that was approved by the California voters did not contain such limitations.  And at trial, Mr. Archer submitted evidence that often individuals who have various medical conditions require the use of larger quantities of marijuana.

This decision is important because what it means is that the jury should not be instructed that a person is guility of possession of marijuana merely becuase they possessed a certain quantity of the medicine or a certain number of plants.  The question of whether the marijauana is possessed for medical purposes is a question that should be left entirely for the jury.

The irony in this case is that the San Diego probation department has attempted to have Mr. Archer register as a narcotics offender even though it is universally agreed that marijuana is not a narcotic and that Nathan Archer is a valid medical marijuana patient.  Unforutnately, the court upheld his conviction for cultivation of marijuana for distribution finding that the error in instructing the jury on the mandatory limit of plants as to this charge was "harmless".  Mr. Archer and I strongly disagree and have petitioned the California Supreme Court for relief.  The California Supreme court already has a case before it , People v. Kelly, which is very similiar to Mr. Archer’s case, and a decision on Kelly is expected soon.

The District Attorney and the police expect that citizens will follow the law.  Now, they are the law breakers by continuing to harass the owners of legitimate medicial marijuana clinics and even arresting them and charging them.  They have failed to follow the policy of Barack Obama and the White House that legitimate medical marijuana patients and their providers should not be prosecuted even though federal law still remains in conflict with state law.

Shame on San Diego District Attorney Bonnie Dumanis for not following the law she is supposed to follow as District Attorney !  I  urge all of you to contact your state legislators and the office of San Diego District Attorney Dumanis and tell her that you want her to follow the law that was passed by the voters and to stop wasting precious California taxpayer money by prosecuting marijuana related cases.  Also, if you feel strongly enough about this issue, you can support an organization fighting for the rights of medical marijuana patients such as California NORML. (National Organization for the Reform of Marijuana Laws.) 

At the Law Office of Russell Babcock , we will continue to fight for individuals, like Mr. Archer, who are not criminals, but patients,  and who are following the law, unlike the District Attorney.  If you are charged with a marijuana related crime, contact an attorney immediately.  It is quite possible that the charges can be dismissed or reduced depending on the circumstances.