By Christopher Glew
A new proposal regarding medical marijuana is on the table for review with potential implementation in the near future. Assembly Bill 1017 was introduced by cannabis-friendly Assembly member Tom Ammiano on Feb. 18. As with all new proposed changes to the existing quagmire of codified ambiguity (otherwise known as the Compassionate Use Act and Medical Marijuana Program), we must carefully examine this proposal to determine whether it will in fact degrade or nourish the spirit of medical marijuana law in California.
Assembly Bill 1017 (hereafter referred to as AB 1017), is a proposal to amend existing law regarding cultivation of marijuana. Currently, under Health and Safety Code Section 11358, cultivation of marijuana is deemed a Felony offense. The law does not currently allow the prosecutor or judge to reduce the offense to a misdemeanor, i.e., a “wobbler.” AB 1017 would allow a cultivation offense to be filed as either a felony or misdemeanor. The legislative counsel’s digest reads:
“Existing law requires that every person who plants, cultivates, harvests, dries, or processes any marijuana, or any part thereof, except as otherwise provided by law, be punished by imprisonment in the state prison. This bill would make that crime punishable by imprisonment in a county jail for a period of not more than one year or by imprisonment in the state prison. By changing the penalty for this crime to authorize imprisonment in a county jail, the bill would impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason.”
The magic language of “be punished by imprisonment in the state prison” is what deems an offense a felony. Therefore, the addition of the language “by imprisonment in a county jail for a period of not more than one year” allows the district attorney and judge to consider what sentence and degree of offense is appropriate. The proposed law would now read as follows:
“Every person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment in a county jail for a period of not more than one year or by imprisonment in the state prison.”
The real legislative intent is likely to encourage prosecutors and judges to charge citizens with a misdemeanor when they have a smaller personal grow, and file felonies against the larger commercial growers. The problem is that we are not left with any clarification as to what would be deemed a misdemeanor or felonious grow. The likely result will be a major disparity from courthouse to courthouse as to what defines a small personal grow/misdemeanor.
One could easily envision the following scenario occurring on an all too frequent basis: A person is arrested in a random Northern California county with a 20-plant grow and a fairly liberal prosecutor files a misdemeanor charge. The same day, a person is arrested in a random Southern California county with a 10-plant grow and a fairly conservative prosecutor files a felony charge.
The real problem is that both prosecutors would be well within their right to file either way. The impact is significant in that felonies carry far greater long-term consequences as well as more immediate concerns like higher bail. The down side is patently evident in the application of this new legislation, but the reality is that right now prosecutors and judges do not even have the option of filing misdemeanors. I would say this new act is a positive step forward since at least we will see a significant decline in the number of felony cultivation filings. The hope is that the prosecutors and judges will use sound judgment in determining who qualifies for the misdemeanors.
Christopher Glew is a Southern California attorney who specializes in medical marijuana law and is a partner with the Law Offices of Glew & Kim. You can reach him at (714) 648-0004 or through www.themarijuanalawyer.com.
