Felony Transportation of Marijuana Charge Reduced to a Misdeamor

By Terrie Best – San Diego Americans for Safe Access Court Support Coordinator

San Diego, CA – Well-known medical cannabis defense attorney, Michael J. McCabe and his client Alexander Ayres were in the Vista courthouse in San Diego County today to accept a plea deal and bring an end to the months-long ordeal for Ayres, a legal medical cannabis patient.

Alex Ayres 24, suffers from Attention Deficit Disorder, a condition he seeks cannabis treatment for in lieu of the addictive, side-effect laden pharmaceuticals he has tried in the past.  His mother, Joyce, who has been by his side in court since his arrest, said Alex’s mental state is so improved by his cannabis use it was like a miracle for him.  Joyce, a pretty and articulate woman in her 50s said she began advocating for Alex to use medical cannabis, when, in his late teen years, she discovered how beneficial it truly was for Alex.  She says the stigma of cannabis is an issue but what really baffles her is why the District Attorney would drag her son through the courts when he is a legal patient.

San Diego District Attorney, Bonnie Dumanis has exhibited a perplexing lack of compassion toward medical cannabis patients. Refusing to craft direction for her investigators and failing to honor patient status, Dumanis’ strategy has been to send all patients through the courts as drug offenders and let judge and jury decide their fates.  The difficulty with that is it is very expensive, clogs the courts with victimless cases, is cruel to sick and injured patients and goes against California state laws: Proposition 215, SB 420 and the CA Attorney General Guidelines.

Alex, a resident of Santa Barbara, CA, held a medical cannabis recommendation which expressly allowed him to possess 11 pounds of cannabis at a given time but when Border Patrol officers stopped him at a boarder check point on his way home from San Diego they confiscated 174 vaporizer cartridges, a ¼ pound of wax concentrate and his electronics. The County Sheriff was called and Alex was taken to jail for nine days, had to pay bail to be released and was charged with transportation of a controlled substance.

Defense Attorney Michael McCabe said he was fully prepared to take Alex’s case to trial and had a very good defense for the transportation charge. Mr. McCabe, cited California’s AB 721, passed this year, which made a change to the California Penal Code to re-define “transportation” to mean “transportation for sale” in the law. In other words, the District Attorney’s Office would be required to prove Alex had intended to sell his medicine in order for him to be found guilt of transportation of a controlled substance.

The Deputy District Attorney in the case,  Landy Spencer-Daly, apparently wasn’t so confident of a win in a jury trial and offered Alex a possession of marijuana misdemeanor charge with summary probation.  Wanting the nightmare behind him and worrying about the possibility of other charges being levied, Alex signed the misdemeanor deal today in Department 5 of the Vista County Courthouse.

Alex and his attorney will be seeking a judge’s order to allow Alex to continue using his medical cannabis while serving his probation term – a strategy which has been successful, according to testimony from probation officials in other medical cannabis cases.

Judge dismisses case against head of marijuana dispensary… U-T San Diego

Story by Greg Moran Wednesday, May 30, 2012
Union Tribune San Diego

SAN DIEGO — A San Diego judge has dismissed all charges against the president of a medical marijuana dispensary following a weeklong trial that ended with a hung jury.

After declaring a mistrial, Superior Court Judge Laura Parsky took the unusual step on Thursday of dismissing the case against Dexter Padilla.

Padilla was charged with possession and cultivation of marijuana in January 2011 in his role as president of Therapeutic Healing Corp., which was on Holiday Court in La Jolla. The drug was grown at a San Marcos warehouse.

The jury said it was hung 7-5 in favor of guilt.

Parsky said she dismissed the charges in the interest of justice because the defense had presented enough evidence that Padilla was complying with the state’s medical marijuana law.

He argued he was immune from the charges under the state’s medical marijuana law, which allows growing and using the drug by qualified patients and caregivers for medical purposes.

Before launching his cooperative, Padilla took steps to assure it complied with the state law, said his lawyer, Michael McCabe. Padilla had consulted with lawyers, accountants and tax professionals, and set up the dispensary as a licensed, nonprofit medical marijuana cooperative.

McCabe said that prosecutors argued Therapeutic Healing Corp., with some 3,000 members, was too large to fit the legal definition of a nonprofit. The prosecution also contended the state guidelines for medical marijuana cooperatives require that anyone claiming to be a member has to participate in some way in the growing, cultivating and distribution of the marijuana.

McCabe argued that a February appeals court decision in Los Angeles said that kind of participation by patients is not required under the law. The state Supreme Court affirmed that decision on May 23 — when Padilla’s case was going on — by declining to review the decision.

A spokeswoman for District Attorney Bonnie Dumanis said Tuesday the office has “no intention” of appealing Parsky’s decision, effectively ending the case.

Padilla’s dispensary no longer operates, McCabe said. Almost all medical marijuana outlets in the county have closed following a federal crackdown on them. Marijuana is not legal under federal law for any purpose.

Judge Parsky, after declaring a mis-trial, dismissed the case in the interests of justice under PC § 1385

Criminal Defense Attorney San Diego CA Michael J. McCabe

After a 7-day trial before Judge Laura Parsky on charges of possession for sale and cultivation of marijuana, the jury hung 7-5 for conviction. Judge Parsky, after declaring a mis-trial, dismissed the case in the interests of justice under PC § 1385. Judge Parsky stated that she believed that the evidence presented had established a reasonable doubt, and that the rebuttal argument of DDA Deborah La Touche “bordered on dis-ingenuousness.” Ms. La Touche immediately ordered a transcript of the trial, and will undoubtedly lobby her supervisors to appeal the dismissal.

Client was the president of a non-profit medical marijuana cooperative with 3000 members as of the time of his arrest on January 27, 2011. The prosecution followed the same old script, maintaining that the coop was too big to be legal; that each member had to participate in some aspect of the cultivation or preparation of the marijuana it grew for the benefit of the members; that the coop could not pay employees; and that since the balance sheet of the coop showed gross receipts of over $1 million, it was, in reality, an illegal, for profit organization.

All of those contentions were rejected by the Court of Appeal, Second Appellate District, Division One, in a published opinion issued on February 23, 2012 – People v. Colvin (2012) 203 Cal App 4th 1029. In spite of this opinion, Judge Parsky allowed the prosecutor to argue the usual script over my objections which, I believe, was the reason the jury hung.

-Mike McCabe

Mistrial Declared in Medical Marijuana Trial; Judge Dismisses Refilling of Charges In The Interest of Justice

Mistrial Declared in Medical Marijuana Trial; Judge Dismisses Refilling of Charges In The Interest of Justice

Dexter and Mariesol Padilla

By: Eugene Davidovich, San Diego Americans for Safe Access

Another devastating blow to San Diego District Attorney Bonnie Dumanis’ fierce fight against medical marijuana patients; Judge Parsky declared a mistrial after the jury was hopelessly deadlocked.
SAN DIEGO – On May 16th, twelve jurors and two alternates were selected in the trial of DA Bonnie Dumanis v. Dexter Padilla, navy veteran, medical marijuana patient and president of Therapeutic Healing, a San Diego based non profit medical marijuana coop.

The jury began deliberations on Tuesday, May 22, after a long week of arguments and testimony from experts and the defendant, Dexter Padilla.

Two notes were turned in by the jury less then an hour after deliberations. The first was a request for the defendant’s testimony to be read and the second was a concern from all the jurors about juror #10 being hostile, refusing to participate, and preventing everyone from working towards a verdict.

After hearing from both sides about this issue and interviewing the foreman of the jury, Judge Parsky decided to admonish the jurors to be courteous to one another and sent them back to the jury room to continue deliberating. Within nineteen minutes of the second attempt at deliberations another note came in from the jury raising the same concerns about juror #10. Once again the judge interviewed the foreman, heard from the defense and prosecution, as well as disruptive juror #10. This time however, both sides were asking for the juror to be replaced with an alternate.  The judge agreed and an alternate was selected.

Judge Parsky then brought the entire panel into the courtroom, dismissed juror #10 and instructed the new panel to start deliberations from scratch. By the time jurors began the second round of deliberations it was 3pm, and less than an hour to reach a decision was not enough.

Deliberations resumed yesterday at 9am. By 2:15 pm the jurors once again sent a note to the Judge. Everyone including the attorneys, defendant, his family and all the supporters rushed to court to find out what the note stated.

By 2:45pm court was in session and Judge Parsky revealed that the jury was hopelessly deadlocked and could not reach a verdict. After a few brief questions the Judge dismissed all the jurors, thanked them for their service, and proceeded to declare a mistrial, concluding the two charges would be dismissed.

Before the judge could finish uttering the word ‘mistrial,’ Deborah LaTouche, the deputy DA assigned to the case, was falling over herself to announce she would be re-filing both charges.

Michael McCabe, attorney for the defense, urged the court to dismiss the new charges in the interest of justice, citing the prosecution had not come close to reaching their burden of proof, and Padilla had been in full compliance with State’s medical marijuana laws.

Judge Parsky agreed, and in a very rare move dismissed both counts in the interest of justice citing the prosecution was bordering on ‘disingenuous’ in the way they presented their arguments in this case. The defendant, supporters, and everyone in court aside from the DA were overjoyed at the decision.

“Today, justice was served and Dumanis’ bias driven effort to chip away at the states medical marijuana program saw yet another defeat” said Terrie Best, court support coordinator for San Diego Americans for Safe Access

Dumanis tried Padilla on the basis he did not have all the coop’s documents together, which was the reason LaTouche used in her closing arguments in an attempt to prove guilt. The most outrageous part about LaTouche using the documents in her closing is all the records she claimed were not present, were the very records offered to her prior to trial, and the very records looted by the DEA in an unlawful raid on Mark Wuerfel’s office, the general counsel for Therapeutic Healing.

The fact that Judge Parsky dismissed the case in the interest of justice sends a strong message to Bonnie Dumanis’ office that Padilla is immune from prosecution as matter of law, and it would be impossible for them to prove beyond a reasonable doubt that he was out of compliance.

“The Judge’s ruling shows this case never should have been tried in the first place and that Dumanis has a vendetta against qualified patients coming together in a lawful manner,” said Mark Wuerfel. “It underscores the malicious way in which the tax payers money is being squandered to try and put innocent people in prison where all they are trying to do is follow the law”.

After the conclusion of the trial, Deborah LaTouche was seen requesting transcripts from the court recorder signaling Dumanis’ office was considering an appeal, further proving the vindictive nature of Dumanis’ war on patients.

Bonnie Dumanis’ complete disregard for state law is a slap in the face to the will of the people, as well as all the patients who use Prop 215 and the State’s medical marijuana laws to protect themselves from overzealous prosecutors like Dumanis.

As a result of the amazing work of Michael J. McCabe, the criminal defense attorney representing Padilla, attorney Mark Wuerfel and his willingness to stand up for his client, and the dedication of patient advocates with San Diego Americans for Safe Access, the community saw justice served in court yesterday.

Original Article located here. http://www.safeaccesssd.org/2012/05/mistrial-declared-in-medical-marijuana.html

Another VICTORY! Off Duty Drunk Cop Starts Fight And Gets His Teeth Knocked Out And My Client Does Not Need To Pay For Restitution Or Go To Jail.

I won a contested restitution hearing before Judge Hanoian on 3/22/12.

My client was originally charged with 3 felonies arising out of a fight with an off-duty SDPD officer. A the preliminary hearing, Judge Einhorn ruled that my client’s punch to the face of the officer was thrown in self-defense as the officer had struck my client in the neck after my client spit in his face. Consequently, he was held to answer on 2 added misdemeanors by virtue of the spitting, misdemeanor assault (count 4) and misdemeanor battery (count 5).

After my client pleaded no contest to misdemeanor assault and was sentenced to 3 years summary probation, the People requested a restitution hearing, claiming that my client was responsible for restitution to the officer amounting to $50,000-$30,000 for medical and dental expenses, and $20,000 to reimburse the City’s worker’s comp carrier.

Judge Hanoian found that Judge Einhorn’s factual findings at the prelim were binding upon him at the restitution hearing, and rejected the People’s condition that my client was responsible for restitution since the spitting was the legal and proximate cause of the injuries and loss of wages.

In ruling the officer was not entitled to any restitution , Judge Hanoian was particularly offended by the officer’s worker’s comp claim , observing that his application was fraudulent as there was no way he was engaged in the performance of his duties at the time.

The officer hasn’t given up yet, though. He’s filed a civil suit against my client alleging my client was the aggressor , notwithstanding Judge Einhorn’s holding to the contrary.

We’ll see.

– Mike McCabe