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People v. Mulcrevy

California Court of Appeals, Third District

December 17, 2014

THE PEOPLE, Plaintiff and Respondent,
v.
SEAN PATRICK MULCREVY, Defendant and Appellant.

Super. Ct. No. P10CRF0460.

Page 128

[Copyrighted Material Omitted]

Page 129

COUNSEL

Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

BUTZ, J.

Defendant Sean Patrick Mulcrevy contends the trial court violated his due process rights by erroneously precluding him from presenting the affirmative defense that he was permitted to possess concentrated cannabis pursuant to the Compassionate Use Act of 1996 (CUA; Health & Saf. Code, § 11362.5), and there is insufficient evidence to support the finding he violated his probation by possessing concentrated cannabis because he has an adequate physician’s recommendation. The Attorney General agrees, and so do we. Accordingly, we reverse the judgment that defendant violated his probation by possessing concentrated cannabis.

FACTUAL AND PROCEDURAL BACKGROUND

In 2011, defendant pleaded no contest to unlawful exhibition of a firearm (Pen. Code, § 417, subd. (a)(2)) and grand theft (Pen. Code, § 487, subd. (a)). The trial court suspended imposition of sentencing and granted defendant formal probation for a period of 36 months. Among the terms of his probation, defendant was ordered to “obey all laws” and “not to use or possess any controlled substance, including marijuana, unless you [defendant] have a licensed prescription for the marijuana that is approved by the court.”

Defendant was thereafter charged, in 2013, with misdemeanor unlawful possession of concentrated cannabis (Health & Saf. Code, § 11357,

Page 130

subd. (a)), [1] and was alleged to have violated his probation based on that possession.[2] The alleged probation violation was that defendant ...


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