From attorney William G. Panzer 6/21/18:
I’m attaching an unpublished decision from the First District Court of Appeal (California) that just came down in a case I’m handling that I believe should be published.
The defendant ran an SB420 dispensary in Livermore. Livermore banned dispensaries under their local ordinance. The defendant was arrested and charged with felonies under the Health & Safety Code and felony money laundering for depositing the co-ops money in an FDIC bank. The DA argued, and the court agreed, that violation on the Livermore ordinance rendered the defendant unable to rely on the mmj laws in defense to the state criminal charges. In essence, the court ruled that full compliance with all local rules was a necessary element of the mmj defense under SB420.
The court of appeal reversed, clearly starting that one could be in violation of the local ordinance and still enjoy the full protection of the mmj laws in a state prosecution. This is the first time I am aware of that an appellate court has confirmed this. I am certain there are no published opinions on this issue.
Being as many communities are now looking to get rid of collectives and co-ops, I suspect we will see more prosecutions in the coming months arguing compliance with local law is a necessary element of the mmj defense to state charges. In this regard, I am writing to the COA to request publication of this opinion.
Here is a link to the Rule of Court regarding requesting publication. (Rule 8.1120). Anyone with an interest in the matter can so request.
Accordingly, I am inviting anyone with an interest, and a concern, to contact the COA to request publication.
A published decision can be cited by others as controlling precedent. An unpublished decision is controlling for that case only and may not be cited by others as authority. Essentially, they tend to publish decisions where the government wins, but prefer to leave those where the defendant wins as unpublished. Here is Panzer’s letter requesting publication:
Re: People v. Ramin Ahmed No. A149066
Alameda County Sup. Ct. No. H56930Request for PublicationDear Court of Appeal:Pursuant to Rule of Court 8.1120, I am writing to request publication of the above-referenced decision.I am counsel of record in this appeal, and I believe the opinion meets the standards for publication as provided for in Rule of Court 8.1105(c)(3)(4)(6)and (8).The decision is one of first impression -—there are no published decisions explaining thatfull compliance with local ordinances is not an element of the state medical marijuana defense under Health & Safety Code §11362.775. I have personally encountered this argument from the prosecution in a medical marijuana case prior to Mr. Ahmed’s case. (That matter was eventually dismissed on other grounds). I have al o spoken with other attorneys who have encountered this argument.More importantly, as California moves towards a legally regulated for-profit marijuana ma rket, many communities are now attempting to expel dispensaries run by patient collectives and cooperatives under §11362.775. It is almost certain that others will be facing the same theoryof prosecution disallowed in this decision. Being as this is arguably a confusing area of the law, the direction provided by this decision would be helpful to other courts and would serve to prevent the unnecessary waste of time and resources in arguing the relationship of local ordinance to the state defense, a distinctionthat is clearly explained in this decision for the first time.Your consideration of this request is greatly appreciated.