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.

Dismissal of battery charge by DA’s office at trial call on August 4, 2011

Criminal Defense Attorney San Diego CA Michael J. McCabe

Michael J. McCabe Attorney at Law

My client was charged in Vista Superior Court with misdemeanor battery in violation of Penal Code § 242 . This case arouse out of an altercation between my client and a fellow resident of the apartment complex in which he resided in Oceanside. My client won the fight, so, as usual, he was arrested and charged. My client’s versions of events and that of the complaining witness were, of course, diametric opposites. When the Oceanside PD detective who responded to the complaining witnesses’s 911 call expressed misgivings as to the viability of this “he said, he said” case, the complaining witness submitted to the detective what he represented to be the statement of another resident of the complex in which he stated that he had witnessed the entire affair, and corroborated the complaining witnesses’s version of events.

However, when interviewed by my investigator, Alan Stevens, this corroborating witness recanted, and informed Mr. Stevens he hadn’t seen anything, and that the statement submitted was drafted for his signature by the complaining witness. I supplied this information to the deputy district attorney assigned to the case for trial, Gabriel Kim. However, after receiving my reports, Mr. Kim sent me an e-mail that the prosecution intended to go forward anyway. Sensing treachery, I subpoenaed this corroborating witness to the trial of the case set to begin on August 4, 2011.

On the afternoon prior to the scheduled commencement of the trial, I called this corroborating individual and informed him that he would be required to appear in court the following day at 9a.m. at the trial call to be ordered back by the court at a later time when his testimony would be required. He informed me that he had just been called by either the DA or the DA’s investigator and told that he was not required to be in attendance. I immediately called Mr. Kim, the prosecutor, and informed him that this person was under subpoena by me, and if he did not appear pursuant to their directions, it would not be a pleasant experience for him. 10 minutes later, I received a return phone call from Mr. Kim informing me that the People were dismissing the case.

The most disturbing part of this entire scenario was the fact that Mr. Kim and his superiors in the Vista DA’s office apparently thought that I was stupid enough to rely upon their good faith by not issuing my own subpoena for this individual. Further, I can’t believe that a low-level misdemeanor trial deputy like Mr. Kim would come up with this idea on his own without the collaboration and direction from his superiors.

San Diego California Criminal Defense Attorney Michael J McCabe

I guess that the DA's office is not held to the same standards if truth and honesty as the defense is.

The DAs are defendants in a lawsuit filed last year by the Colorado Criminal Defense Bar

DENVER — A group of Colorado district attorneys on Friday filed a motion to dismiss a lawsuit challenging a state law that denies public defenders for misdemeanor criminal defendants until after they’ve heard a plea offer. The DAs claim the matter is best resolved in the legislature, not the courts.

Boulder County DA Stan Garnett filed the motion on behalf of the DAs from 21 of Colorado’s 22 judicial districts. The DAs are defendants in a lawsuit filed last year by the Colorado Criminal Defense Bar and the Colorado Justice Reform Coalition in Denver’s U.S. District Court. Pueblo DA Bill Thiebaut is also named in the suit but chose separate counsel.

The lawsuit claims a 1992 statute unconstitutionally withholds public defenders from people charged with jailable misdemeanor offenses. The suit was prompted by a 2008 U.S. Supreme Court decision, Rothgery v. Gillespie County, which holds that the right to counsel attaches at a criminal defendant’s first appearance before a judge.

The DAs contend that the plaintiffs in the Colorado lawsuit lack standing to sue because they are not themselves criminal defendants. The DAs argue that the state legislature, not federal court, is in the best position to deal with the ramifications of the Rothgery decision.

Colorado Gov. John Hickenlooper, Attorney General John Suthers and State Court Administrator Jerry Marroney were named along with the DAs as defendants in the defense bar’s lawsuit. The AG’s office filed a motion to dismiss in April on their behalf.

Read the story here