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People v. Mitchell

California Court of Appeals, Second District, Fifth Division

April 29, 2014

THE PEOPLE, Plaintiff and Respondent,
BRYAN EDWARD MITCHELL, Defendant and Appellant.


APPEAL from a judgment of the Superior Court of Los Angeles County, No. PA067133 Hilleri G. Merritt, Judge.

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[Copyrighted Material Omitted]

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Kestenbaum, Eisner & Gorin, Alan Eisner and Brad Kaiserman for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and Gary A. Lieberman, Deputy Attorneys General for Plaintiff and Respondent.

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Defendant, Brian Edward Mitchell, appeals after he was convicted of marijuana cultivation. (Health & Saf. Code, [1] § 11358.) In the published portion of this opinion, we discuss defendant’s contention he was entitled to the protections of section 11362.775. Section 11362.775 was adopted pursuant to the Medical Marijuana Program Act. Defendant entered into two written agreements to grow marijuana every month and sell it to a for-profit corporation that operated a collective of which he was a member. Defendant anticipated being paid $50, 000 to $60, 000 annually for marijuana delivered to the for-profit corporation. Under these circumstances, defendant may not secure the immunity provided by section 11362.775. With minor sentencing modifications, we otherwise affirm.


A. The Formation Of The For-Profit Corporation “Keeping It Medical”

On November 6, 2006, Norman Conway, as incorporator, filed a brief 12-line articles of incorporation for Keeping It Medical with the California Secretary of State. The Keeping It Medical corporation was organized as a for-profit enterprise. According to Mr. Conway, the corporation never ended up “making a profit or anything” and he lost his house over the business. The other partners in the Keeping It Medical enterprise also lost money. When asked for the annual gross sales between 2006 and 2010, Mr. Conway testified, “It varied due to like -- there [were] some union disputes or strikes, I guess, through the industry, so I believe that sometime in 2008 or -9, we lost probably 60 percent of our normal patient load that would be coming in.” Mr. Conway explained the only persons who suffered a loss were the four partners who invested in the business. Because he was living off of the refinancing of his house, Mr. Conway testified he took in “maybe $10, 000” per year. However, the partners, according to Mr. Conway, never actually earned anything: “But we never really earned anything. We kept putting it in

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and putting it in and -- there were certain things that happened that were supposed to come with this which was going to be something, you know, that we could use to hopefully get us up and running.”

Mr. Conway testified that he was a manager of the “K.I.M. Collective” which was formed in October, 2006. The acronym K.I.M. is shorthand for Keeping It Medical. Mr. Conway registered the K.I.M. Collective with the City of Los Angeles Office of Finance in 2006 under the name Keeping It Medical. Mr. Conway testified the collective at one time had close to 1, 000 members. The Keeping It Medical entity was registered at 3322 Barham Boulevard. City of Los Angeles finance office records described the Keeping It Medical business as “Retail Sales” and “Professions/Occupations.” An attorney, David Ericson, provided legal services which led to the incorporation of Keeping It Medical.

Mr. Conway explained the procedures by which a member could obtain marijuana from the collective. Mr. Conway testified, “[T]hey would have to show a doctor’s recommendation and have a valid California I.D., and then we would have to call the doctor that was on the recommendation and verify it....” Once the identification and verification process was concluded, a person desiring to purchase marijuana would sign a membership agreement. Some unidentified collective members received marijuana at no cost. However, defendant testified he paid money for the marijuana he obtained from the collective.

Persons other than Mr. Conway or his three partners would collect money from marijuana purchasers. Mr. Conway’s sole source of income was the proceeds of the collective. According to Mr. Conway, persons who brought marijuana to the collective were paid money in exchange. The collective offered classes to members on how to grow and cook marijuana. When the collective closed due to financial difficulties, none of its members received bills to pay Mr. Conway back for his losses.

B. Defendant Agrees To Provide Marijuana To Keeping It Medical And Receive $50, 000 To $60, 000 Annually In Return

In 2002, defendant fractured his spine and was constantly in pain. On September 21, 2007, defendant visited Dr. Wesley Albert. Dr. Albert approved

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the use of marijuana for defendant’s symptoms. The approval was granted for one year. There is no evidence defendant later secured approval from any physician after the expiration of the one-year time period.

Defendant secured a medical marijuana card. On November 7, 2007, defendant executed a K.I.M. Membership Agreement. Defendant’s membership agreement states: he had received a written doctor’s recommendation for a medical condition for which marijuana provided relief; under “Prop 215 & SB420, ” he had the right to cultivate and have safe and affordable access to medicinal marijuana; his contributions for products he acquired at K.I.M. Inc. were to be used to ensure the continuing operation of the collective; “[the] transaction in no way constitute[d] commercial promotion”; the money he paid helped the collective continue to provide its members with marijuana for their medical needs; and K.I.M. Inc. was a collective for the marijuana “in possession of all its members.” The membership agreement concludes: “I understand that by signing this membership agreement, I declare under penalty of perjury all information to be truthful and accurate. Also, I will comply with all the guidelines for Prop 215 & SB420.”

Mr. Conway testified defendant would regularly spend time at the Barham Boulevard establishment. Mr. Conway testified defendant helped with the collective. Mr. Conway described defendant’s activities at the collective: “Just help us with the cultivation, or that, you know, introductory grow classes. We had a small grow there so that patients could see what they were dealing with, what to expect, and what they will have, and he helped us do that. [¶] And we shared a lot of good books.... We would just hang out, I guess.” Defendant described his role in the collective as that of a patient who taught a cultivation class. Defendant testified he would bring marijuana to the collective. But defendant denied taking money from persons he described as patients.

Defendant and Mr. Conway began discussing growing marijuana for the collective. After reviewing the Attorney General’s marijuana guidelines, Mr. Conway and defendant agreed that it “seemed that the collective was in a need” of more marijuana for its membership. Defendant testified there was very limited space at the Barham Boulevard collective for growing marijuana.

As result, defendant met twice with an attorney, Stewart Richlin. Defendant paid money to Mr. Richlin who provided the following advice: “He informed me that in order to grow legally for my collective, there were some documents that I could fill out. There were some certain parameters that ...

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