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The People v. William Frank Colvin

February 23, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
WILLIAM FRANK COLVIN, DEFENDANT AND APPELLANT.



(Los Angeles County Super. Ct. No. BA355383) APPEAL from a judgment of the Superior Court of Los Angeles County, Dennis J. Landin, Judge. Reversed.

The opinion of the court was delivered by: Aldrich, J.

CERTIFIED FOR PUBLICATION

INTRODUCTION

While transporting in his car about one pound of marijuana from one medical marijuana establishment to a second, defendant and appellant William Frank Colvin was stopped and arrested. He was charged with, among other things, transporting marijuana. At his court trial, Colvin raised a defense under the Medical Marijuana Program Act (MMPA), which provides a defense to specified classes of people, including "qualified patients," who "associate . . . in order collectively or cooperatively to cultivate marijuana for medical purposes." (Health & Saf. Code, § 11362.775.)*fn1 The trial court found that Colvin, although a qualified patient operating a "legitimate dispensary," was not entitled to the defense because the "transportation had nothing to do with the cultivation process" and was "outside what the law permits." We conclude that, based on the trial court's findings, section 11362.775 applied. We reject the Attorney General's argument that the section applies only to those cooperatives involving "some united action or participation among all" members. The judgment is therefore reversed.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

Colvin co-owns and operates Hollywood Holistic 1 and Hollywood Holistic 2 (collectively Holistic), medical marijuana dispensaries. Holistic is a nonprofit corporation, formed in 2005, opened in 2006, and registered with the City of Los Angeles in 2007. The city renewed the license in May 2010. Los Angeles Police Department's Gangs and Narcotics Division informed Colvin that Hollywood Holistic Inc.'s live scan application met the standard in the Medical Marijuana Collective Ordinance and would be forwarded to the Office of the City Clerk for the next step in the ordinance registration process. Holistic pays Colvin approximately $400 per week.*fn2 The money Holistic makes is used to pay rent, utilities, lights, and necessities for the business.

As of March 2009, Holistic had 1,500 patients or members, although that number grew to over 5,000 by the time of trial. Approximately 14 members, including Colvin, grow marijuana, and Holistic reimburses growers for expenditures, such as fertilizer, hydroponic equipment, and lighting for indoor growing.*fn3 Some growers are in Los Angeles County, but others are in Humboldt County. Those who grow marijuana drop it off at Holistic for other members to buy. Holistic also grows marijuana on-site, and the Los Angeles Police Department (LAPD) visited the three "grow rooms." None of the marijuana Holistic distributes is from a source other than a collective member.

If a person comes in with a prescription for medical marijuana, they are first left in "primary holding" while someone looks them up online or calls their doctor to make sure they are "legal." The person's identification is checked. Once that process is completed, the person is let in and fills out a membership application and patient information sheet.*fn4 The person is then given a prescription number that Holistic uses to identify them and to track when their prescription expires. They also sign a registry so that Holistic has a record of their medical problem. Finally, the person is given their medicine, which is "legally tagged" and put in a stapled bag. Every time the person returns, the visit is registered in a computer program. Patients are allowed no more than one ounce of marijuana in one day, and, to minimize the chance of crime, each Holistic establishment has no more than two to three pounds of marijuana at any time. People who come to Holistic for the first time might pay for the marijuana, but returning members pay a "charter fee," determined each quarter based on the person's needs, that is used to grow marijuana for the person.

On March 10, 2009, Colvin was arrested a block and a half from Holistic 2 (in Hollywood), while he was en route to Holistic 1 (in Santa Monica). He was delivering just over a pound of marijuana for Holistic's use.*fn5 Colvin also had $4,285 in cash. Colvin explained to the officer that he managed marijuana dispensaries and was delivering marijuana to one of them. He had a valid doctor's note, having been prescribed marijuana since 2003.

II. Procedural background.

An information alleged three counts against Colvin: count 1, possession of a controlled substance, cocaine (§ 11350, subd. (a)); count 2, sale or transportation of marijuana (§ 11360, subd. (a)); and count 3, possession of concentrated cannabis (§ 11357, subd. (a)). Colvin waived his right to a jury, and, at the close of evidence, made a motion for a judgment of acquittal under Penal Code section 1118.*fn6 The court denied the motion and found that defendant was not entitled to the defense under section 11362.775 because "the transportation here had nothing to do with the cultivation process." The court, however, also found that Colvin was a qualified patient and that Colvin was operating a "legitimate" "dispensary." The court rejected Colvin's due process argument.

On September 9, 2010, the trial court placed Colvin on probation under Proposition 36 for 18 months on count 1 for possession of cocaine. The court also placed him on three years' probation on counts 2 and 3 and ...


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