Superior Court of California, Appellate Division, Los Angeles
from a Judgment of the Superior Court of Los Angeles County
No. 5CA00702, East Los Angeles Trial Court, Melissa N.
Widdifield, Judge. Affirmed.
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.
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), §
188.8.131.52, 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, § 184.108.40.206, subd. O). As discussed
below, we affirm.
AND PROCEDURAL BACKGROUND
were charged in an amended complaint with violating LAMC
section 220.127.116.11, 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
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 18.104.22.168, 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, § 22.214.171.124, 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.
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 126.96.36.199,
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.
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.)
section 188.8.131.52, 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 184.108.40.206 provides limited immunity from
prosecution for violating LAMC section 220.127.116.11. LAMC
section 18.104.22.168 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 22.214.171.124 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, § 126.96.36.199.)
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; ...