California Court of Appeals, Second District, Sixth Division
San Luis Obispo County Super. Ct. No. F455771 of San Luis Obispo Barry T. LaBarbera, Judge
Gerald T. Shea, District Attorney, Jesse Marino, Craig Von Rooyen, Deputy District Attorneys, for Plaintiff and Appellant.
Laura S. Kelly, under appointment by the Court of Appeal, for Defendants and Respondents Thomas Anthony Sandercock, Jr., Christopher Austin and Amy Austin.
Law Offices of James B. Devine, APC, James B. Devine for Defendants and Respondents Valarie Hosking, David Hosking and Steven Gordon.
GILBERT, P. J.
Defendants Thomas Anthony Sandercock, Jr., Christopher Austin and Amy Austin were charged with selling marijuana and possession of marijuana for sale. (Health & Saf. Code, §§ 11359 & 11360). In a pretrial motion, the trial court approved a defense instruction that would allow the retail sale of marijuana. The People declared they could not proceed under the instruction. No wonder. Neither the Compassionate Use Act (CUA) nor the Medical Marijuana Program Act (MMPA) allows for the sale of marijuana for profit. (§§ 11362.7 et seq. & 11362.5) The People sought to exclude any defense under the CUA and the MMPA. The trial court entered judgments of dismissal and the People appeal.
We reverse. The MMPA is not a defense to retail sales. Any money received must be no more than a cooperative or collective member's proportionate share of the actual cost of cultivating and distributing the marijuana.
In 2010, police officers worked with the San Luis Obispo County Narcotics Task Force in an undercover investigation of marijuana delivery businesses. Detective Amy Chastain obtained a medical marijuana recommendation under an assumed name. She used an apartment in the city of San Luis Obispo for purposes of the investigation.
Hopeful Remedies - Steven Gordon
On November 4, 2010, Chastain called Hopeful Remedies, a collective, and arranged for delivery of marijuana to the apartment. Steven Gordon arrived and identified himself as "Mike." He verified that Chastain had a physician's recommendation for marijuana. He asked Chastain to sign a form stating she was part of his collective. After she signed the form, he sold her one-eighth ounce of marijuana for $50. Chastain made another one-eighth ounce purchase from Hopeful Remedies on November 17, 2010. On December 15, 2010, Chastain purchased one-half ounce from Hopeful Remedies for $80.
Open Access Foundation - Austin & Sandercock
On November 4, 2010, Chastain called the Open Access Foundation and requested "a marijuana delivery." Christopher Austin arrived at the apartment and checked Chastain's driver license and medical marijuana recommendation. After Chastain completed Open Access Foundation's forms, Austin sold her one-eighth ounce of marijuana for $50. On November 18, 2010, Chastain purchased another one-eighth ounce of ...