Los Angeles Growers and collectives can legally do business!

ultivation
regulations are pretty much non existent in Southern California and sparse in
Northern California.  Unfortunately, that
has left the courts to navigate these murky waters! In June 2014’s Legal
Corner, we discussed People v. Mitchell
(2014) 225 Cal.App.4th 1189, where the trial court and the court of appeals
ruled against a Medical Marijuana Collective Cultivation Defense. Fortunately,
2015 has already produced some better parameters for cultivators and their
collective defense under the Compassionate Use Act, the MMPA and the Attorney
General Guidelines.

People
v. Mitchell in Review. In Mitchell’s
case, he was a qualified patient who began his own grow operation, where he
would grow for a “for profit” collective. When he was arrested for possessing
and cultivating 200 cannabis plants, he told police that the plants were his
and he was planning to sell to the aforementioned collective.  In trial and in the appeals court, he argued
he was eligible to present a defense under existing medical cannabis laws. Unfortunately,
though, the appeals court upheld the original decision to convict Mitchell with
conspiracy to cultivate cannabis, ruling that the MMPA did not apply because he
was involved in a for profit operation and he claimed that the plants belonged
to him, and not any other qualified patients.

2015 Sheds Light
on the Issues

Similar
to Mitchell, in People v. Anderson (Jan. 9, 2015, F066737) _ Cal.App.5th_, a
medical cannabis patient was arrested after law enforcement seized 187 plants,
several containers with cannabis, and concentrated cannabis. During trial, the
prosecution presented evidence that Anderson had sold to a medical cannabis collective.
The defense presented evidence that Anderson was member of the collective and
was in the process of starting a collective of his own with friends and family.
During his closing arguments, the prosecutor emphasized to the jury that any
sales of cannabis was illegal. The prosecutor further emphasized that this must
be an illegal operation because no one was helping Anderson with the cannabis plants.  Then, the jury instructions (that came from
the judge) were not clear enough and lent support to the erroneous arguments made
by the prosecution. The jury, obviously confused, convicted Anderson on the
cultivation charge and hung on the possession for sales charge. Naturally,
Anderson appealed.

On
appeal, the court reversed the conviction and ruled that it was legal to grow
for others in exchange for money, so long as the collective is not for profit, and
cannabis is distributed to only qualified patient-members of the collective.  The court further held that Anderson could
have been in the initial phases of starting a collective of qualified patients
and thus the amount of cannabis could have been lawful.

People
v. Orlosky, January 2015. Comparably,
Orlosky and his roommate (both MMJ patients) were arrested for cultivating approximately
11 plants. During trial, despite the defense’s arguments, the court refused to
instruct the jury on the collective cultivation defense because a collective
required “records, agreements, and not just two guys hanging out together and
saying ‘hey, maybe we should do this.’” People
v. Orlosky (Jan. 16, 2015, D064468) _Cal.App.4th_.

Much
to California’s delight, the court of appeals ruled that there was substantial
evidence to support that two qualified patients are engaging in an informal
cultivation arrangement to grow and share marijuana only among themselves for
medical purposes with no distribution to outsiders, and they do not need a
formal business entity for the cultivation collective defense to be applied.
Thus, the superior court’s decision was reversed!

** Note: Just
because Orlosky says you CAN operate without formal business organization, does
not mean you SHOULD. Remember, Orlosky was two patients growing together. If
you are growing for more than two people I would definitely recommend
organizing your collective formally!

Hope you find this article
helpful. Contact Meital Manzuri for further help. Meital Manzuri is a Los
Angeles-based criminal defense attorney, speaker and consultant for patients,
collectives and dispensaries. If you have questions about medical cannabis or any other criminal defense matters, she
can be contacted via phone at (310) 601-3140 or www.Manzurilaw.com.