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People v. CHR Herbal Remedies

Superior Court of California, Appellate Division, Los Angeles

May 30, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
CHR HERBAL REMEDIES et al., Defendants and Appellants.

         APPEAL from a Judgment of the Superior Court of Los Angeles County No. 5CA00702, East Los Angeles Trial Court, Melissa N. Widdifield, Judge. Affirmed.

          Eric D. Shevin, Stephen J. Fisch, Ryan M. D'Ambrosio, and Benjamin S. Reccius of the Shevin Law Group for defendants and appellants CHR Herbal Remedies, aka California Herbal Remedies, Inc., and Orlando Yepes.

          Michael N. Feuer, City Attorney, Asha Greenberg, Assistant City Attorney, and John R. Prosser, Deputy City Attorney, for plaintiff and respondent the City of Los Angeles.

          OPINION

          Ricciardulli, J.

         INTRODUCTION

         Defendants CHR Herbal Remedies, aka California Herbal Remedies, Inc., and Orlando Yepes appeal the judgment after they were found guilty of four counts of operating an unlawful medical marijuana business (MMB) (L.A. Mun. Code (LAMC), § 45.19.6.2, subd. A). Defendants contend the judgment should be reversed because they substantially complied with the requirements needed to obtain limited immunity from prosecution, despite the fact their MMB was located within 1, 000 feet of a high school and within 600 feet of a child care facility (see LAMC, § 45.19.6.3, subd. O). As discussed below, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         Defendants were charged in an amended complaint with violating LAMC section 45.19.6.2, subdivision A, on June 16, July 16, July 21, and July 30, 2015, by owning and operating an MMB in the City of Los Angeles (City). Prior to the start of trial, defendants filed two motions requesting they be allowed to present evidence, and argue at trial, that they substantially complied with the limited immunity provision provided by LAMC section 45.19.6.3.

         Attaching to their motions maps of the areas at issue, defendants admitted their MMB on 1343 North Highland Avenue was located within 1, 000 feet to the south of Hollywood High School and within 600 feet to the north of the Little Red Schoolhouse child care facility. Defendants acknowledged they did not strictly comply with the 1, 000-foot and 600-foot requirements in LAMC section 45.19.6.3, subdivision O, but they maintained the MMB nearly complied with the above distances by being hundreds of feet away from the locations. Defendants also pointed out they satisfied other requirements necessary to obtain immunity, including having been in operation since 2007 (see LAMC, § 45.19.6.3, subd. A). Defendants argued they should thus be allowed to present a defense at trial that they qualified for immunity because they substantially complied with the distance requirements. The trial court ruled the immunity provision could not be satisfied by substantial compliance with the distance requirements, and denied their motions.

         Defendants subsequently waived their right to a jury trial and agreed to a court trial. The parties stipulated that on the alleged dates defendants owned and operated an MMB located at 1343 North Highland in violation of LAMC section 45.19.6.2, subdivision A, and the location of the MMB was within 1, 000 feet of Hollywood High School (880 feet away) and within 600 feet of the Little Red Schoolhouse child care facility (550 feet away). The court found defendants guilty based on the stipulations, suspended imposition of sentence, and placed them on probation.

         DISCUSSION

         Because the contention that defendants substantially complied with the limited immunity provided by the ordinance is one of law based on undisputed facts, we exercise de novo review. (People v. McGowan (2015)242 Cal.App.4th 377, 380; In re Bush (2008)161 Cal.App.4th 133, 140.)

         LAMC section 45.19.6.2, subdivision A, makes it a misdemeanor to “own, establish, operate, use, or permit the establishment or operation of a[n] [MMB]....” in the City. LAMC section 45.19.6.3 provides limited immunity from prosecution for violating LAMC section 45.19.6.2. LAMC section 45.19.6.3 states, in relevant part, “limited immunity is available and may be asserted as an affirmative defense only so long as subsections A. through D. and G. through O. of this Section 45.19.6.3 remain in effect in their entirety, only by a[n] [MMB] at the one location identified in its original or any amended business tax registration certificate issued by the City, and only if that [MMB] does not violate any of the [specified MMB] restrictions.” (LAMC, § 45.19.6.3.)

         A defendant is barred from asserting immunity if any listed restrictions apply, including if the MMB was not in operation since 2007 as evidenced by a specified business tax registration or tax exemption certificate; the MMB did not register with the City Clerk in 2007 in accord with an interim control ordinance; the MMB failed to obtain a specified business tax registration in 2011 or 2012, and renew the registration; ...


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