CITY OF GARDEN GROVE, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent;
FELIX KHA, Real Party in Interest.
G036250
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE
157 Cal. App. 4th 355; 68 Cal. Rptr. 3d 656
November 28, 2007, Filed
SUBSEQUENT HISTORY: Time for Granting or Denying Review Extended
Garden Grove, City of v. S.C. (Kha) (Cal., Feb. 26, 2008)
Review denied by Garden Grove, City of v. S.C. (Kha) (Cal., Mar. 19, 2008)
US Supreme Court certiorari denied by Grove v. Superior Court of Ca, 555 U.S. 1044,
129 S. Ct. 623, 172 L. Ed. 2d 607 (2008)
PRIOR HISTORY: Superior Court No. GG98995, Linda S. Marks, Judge.
CALIFORNIA OFFICIAL REPORTS SUMMARY
The trial court ordered a city to return confiscated marijuana to a medical marijuana
patient. During a traffic stop, city police seized marijuana from the patient. Because
he had a doctor's approval to use marijuana for medical reasons, a Veh. Code, �
23222, subd. (b), charge of transporting marijuana was dismissed. The trial court
then granted the patient's motion for return of property. (Superior Court of Orange
County, No. GG98995, Linda S. Marks, Judge.)
The Court of Appeal denied the city's petition for a writ of mandate or prohibition.
The court held that the city had standing under Code Civ. Proc., � 1086, to seek
a writ of mandate because the question of whether medical marijuana patients were
entitled to the return of lawfully seized marijuana was an issue of considerable
public interest. The court stated that the patient's marijuana possession was legal
under Health & Saf. Code, �� 11362.5, 11362.765, subd. (b)(1). It was illegal
under 21 U.S.C. � 844(a), however. The court concluded that his possession was lawful
for purposes of obtaining return of property under Health & Saf. Code, � 11473.5,
because state courts were not required to enforce federal drug laws. Further, the
federal drug laws did not preempt state law under the supremacy clause of U.S. Const.,
art. VI, as to the return of medical marijuana to qualified users. Due process required
the return of seized property after the dismissal of a criminal charge. (Opinion
by Bedsworth, Acting P. J., with Aronson and Fybel, JJ., concurring.)
CALIFORNIA OFFICIAL REPORTS HEADNOTES
(1) Mandamus and Prohibition � 58--Procedure--Parties--Standing.--The issue of standing
may be raised at any time during mandamus proceedings. As a general rule, to have
standing to seek a writ of mandate, a party must be beneficially interested (Code
Civ. Proc., [*356] � 1086), i.e., have some special interest to
be served or some particular right to be preserved or protected over and above the
interest held in common with the public at large. This standard is equivalent to
the federal injury in fact test, which requires a party to prove by a preponderance
of the evidence that it has suffered an invasion of a legally protected interest
that is (a) concrete and particularized, and (b) actual or imminent, not conjectural
or hypothetical.
(2) Mandamus and Prohibition � 58--Procedure--Parties--Standing--Local Government
Raising Federal Preemption Issue.--A petition for writ of mandamus may be reviewed
where it presents issues of great public interest that need prompt resolution. Mandamus
review is also favored when a case implicates constitutional concerns respecting
the relationship between state and federal law. Consistent with the federal system
of government, state political subdivisions should be given standing to invoke the
supremacy clause (U.S. Const., art. VI) to challenge a state law on preemption grounds.
(3) Drugs and Narcotics � 21--Offenses--Medical Marijuana Defense.--In California,
marijuana is classified as a schedule I controlled substance and is listed as a
hallucinogenic drug (Health & Saf. Code, � 11054, subd. (d)(13)). While possession
of marijuana is generally prohibited, its use for medicinal purposes is legal under
state law.
(4) Drugs and Narcotics � 21--Offenses--Medical Marijuana Defense.--The Compassionate
Use Act of 1996 (CUA) (Health & Saf. Code, � 11362.5) does not provide complete
immunity from arrest and prosecution; rather, the statute provides a limited immunity
that allows a defendant to raise his or her status as a qualified patient or primary
caregiver as a defense at trial or prior to trial on the ground of the absence of
reasonable or probable cause to believe that he or she is guilty. When applicable,
however, the CUA renders possession and cultivation of marijuana noncriminal for
a qualified patient or primary caregiver. The possession and cultivation become
just as lawful as the possession and acquisition of any prescription drug.
(5) Drugs and Narcotics � 21--Offenses--Medical Marijuana Defense.--The Legislature
has enacted the Medical Marijuana Program (MMP) to, inter alia, promote the fair
and orderly implementation of the Compassionate Use Act of 1996 (CUA) (Health &
Saf. Code, � 11362.5). The MMP has created a program for the issuance of identification
cards to qualified patients and primary caregivers (Health & Saf. Code, � 11362.71
et seq.). Because the program is voluntary, one need not obtain an identification
card to be entitled to the protections it [*357] provides (Health
& Saf. Code, � 11362.765, subd. (b)). Those protections include immunity from
prosecution for a number of marijuana-related offenses that had not been specified
in the CUA, among them transporting marijuana.
(6) Drugs and Narcotics � 21--Offenses--Medical Marijuana Defense.--The expansion
of protected activities under the Medical Marijuana Program (MMP) represents a dramatic
change in the prohibitions on the use, distribution and cultivation of marijuana
for persons who are qualified patients or primary caregivers. In enacting the MMP,
the Legislature quite clearly intended to broaden the scope of the Compassionate
Use Act of 1996 (Health & Saf. Code, � 11362.5) in order to facilitate greater
access to marijuana for those patients in need of the drug. And one way the Legislature
has sought to achieve this goal was by authorizing qualified patients to transport
marijuana intended for their own personal medical use.
(7) Drugs and Narcotics � 21--Offenses--Medical Marijuana Defense.--A person is
entitled to the protections of the Compassionate Use Act of 1996 (CUA) (Health &
Saf. Code, � 11362.5) if that person is a seriously ill Californian whose use of
marijuana has been recommended by a physician who has determined that the person's
health would benefit from the use of marijuana in the treatment of any illness for
which marijuana provides relief. Nothing in the CUA or the Medical Marijuana Program
appears to require a qualified patient to provide evidence regarding the source
of his or her marijuana.
(8) Drugs and Narcotics � 21--Offenses--Medical Marijuana Defense.--By their terms,
the Compassionate Use Act of 1996 (CUA) (Health & Saf. Code, � 11362.5) and
the Medical Marijuana Program (MMP) apply only to certain drug offenses that are
contained in the California Health and Safety Code (Health & Saf. Code, �� 11362.5,
subd. (d), 11362.765, subd. (a)). Although the CUA speaks only to the possession
and cultivation of marijuana (Health & Saf. Code, � 11362.5, subd. (d)), the
MMP is more broadly intended to protect a qualified patient who transports marijuana
for his or her own personal medical use (Health & Saf. Code, � 11362.765, subd.
(b)(1)). However, the only transportation statute referenced in the MMP is Health
& Saf. Code, � 11360.
(9) Drugs and Narcotics � 4--Offenses--Transportation--In Motor Vehicle.--A violation
of Veh. Code, � 23222, subd. (b), also constitutes a violation of Health & Saf.
Code, � 11360, subd. (b). The Vehicle Code provision is simply a more specific statute
covering the act of driving, as opposed to other methods of transportation.
[*358]
(10) Statutes � 22--Construction--Reasonableness--Avoiding Nonsensical Results.--A
court cannot construe the law to permit a clearly unintended and patently nonsensical
result.
(11) Drugs and Narcotics � 21--Offenses--Medical Marijuana Defense--Transportation
in Motor Vehicle.--Qualified patients who are charged with violating Veh. Code,
� 23222, subd. (b), should be included within the ambit of California's medical
marijuana laws. That section prohibits driving with marijuana, except as authorized
by law. Since the Medical Marijuana Program (MMP) allows the transportation of medical
marijuana (Health & Saf. Code, � 11362.765, subd. (b)(1)), the MMP effectively
authorizes the conduct described in Veh. Code, � 23222, subd. (b), when the conduct
at issue is the transportation of a small amount of medical marijuana for personal
use--conduct authorized by law.
(12) Drugs and Narcotics � 2--Offenses--Possession--Marijuana.--Under the Controlled
Substances Act (21 U.S.C. � 801 et seq.), it is unlawful for any person knowingly
or intentionally to possess a controlled substance unless such substance was obtained
directly, or pursuant to a valid prescription or order, from a practitioner, while
acting in the course of his or her professional practice (21 U.S.C. � 844(a)). The
exception regarding a doctor's prescription or order does not apply to any controlled
substance Congress has classified as a schedule I drug, such as marijuana (21 U.S.C.
�� 812(c)(10), 829). Schedule I drugs are categorized as such because they have
(1) a high potential for abuse, (2) no currently accepted medical use in treatment
in the United States, and (3) a lack of accepted safety for use under medical supervision
(21 U.S.C. � 812(b)(1)). Congress's intent to preclude the use of marijuana for
medicinal purposes is reflected in the statutory scheme. By classifying marijuana
as a schedule I drug, as opposed to listing it on a lesser schedule, the manufacture,
distribution, or possession of marijuana has become a criminal offense, with the
sole exception being use of the drug as part of a Food and Drug Administration preapproved
research study.
(13) Drugs and Narcotics � 21--Offenses--Trial, Defenses, and Stipulations--Medical
Marijuana Defense--Effect of Federal Law.--State courts generally have the authority
to render binding judicial decisions that rest on their own interpretations of federal
law. But saying state judges may interpret federal law is a far cry from saying
they may invoke it to punish conduct that is legally permissible under state law.
Judicial enforcement of federal drug policy is precluded as to the act of possession
of medical marijuana because this act does not constitute an [*359]
offense against the laws of both the state and the federal governments. Because
the act is strictly a federal offense, the state has no power to punish it as such.
Given the restrictions on state courts' enforcement of federal laws, Health &
Saf. Code, � 11473.5, cannot be read as requiring the destruction of a controlled
substance based solely on the fact that possession of the substance is prohibited
under federal law. Unless the substance's possession is also prohibited under state
law, the state has no authority to invoke the sanction of destruction set forth
in the statute. In other words, the question of whether a substance is lawfully
possessed for purposes of � 11473.5 turns on state, not federal law. If a defendant's
possession of a controlled substance is lawful under California law, then the substance
is lawfully possessed for purposes of that section.
(14) Constitutional Law � 34--Distribution of Governmental Powers--Conflicts Between
Federal and State Powers and Their Resolution--Federal Preemption.--The supremacy
clause of U.S. Const., art. VI, grants Congress the power to preempt state law.
State law that conflicts with federal law is without effect.
(15) Constitutional Law � 34--Distribution of Governmental Powers--Conflicts Between
Federal and State Powers and Their Resolution--Federal Preemption.--The structure
and limitations of federalism allow the States great latitude under their police
powers to legislate as to the protection of the lives, limbs, health, comfort, and
quiet of all persons. This includes the power to decide what is criminal and what
is not. Affording the states broad authority on these matters promotes innovation
by allowing for the possibility that a single courageous state may, if its citizens
choose, serve as a laboratory and try novel social and economic experiments without
risk to the rest of the country. Therefore, any consideration of issues arising
under the supremacy clause (U.S. Const., art. VI) starts with the assumption that
the historic police powers of the states are not to be superseded by a federal act
unless that is the clear and manifest purpose of Congress.
(16) Constitutional Law � 34--Distribution of Governmental Powers--Conflicts Between
Federal and State Powers and Their Resolution--Federal Preemption.--Preemption is
fundamentally a question of congressional intent. And courts are adjured to presume
against preemption unless they find it to be the clear and manifest purpose of Congress.
[*360]
(17) Drugs and Narcotics � 1--Offenses--Federal Preemption.--In enacting the Controlled
Substances Act (CSA) (21 U.S.C. � 801 et seq.), Congress made it clear it did not
intend to preempt the states on the issue of drug regulation. Indeed, the CSA explicitly
contemplates a role for the states in regulating controlled substances.
(18) Drugs and Narcotics � 1--Offenses--Federal Preemption.--The express statement
by Congress that the federal drug law does not generally preempt state law gives
the usual assumption against preemption additional force. 21 U.S.C. � 903 is a direct
preemption disclaimer. Congress enacted the Controlled Substances Act (CSA) (21
U.S.C. � 801 et seq.) to combat recreational drug abuse and curb drug trafficking.
Its goal was not to regulate the practice of medicine, a task that falls within
the traditional powers of the states. The CSA and case law amply support the conclusion
that Congress regulates medical practice insofar as it bars doctors from using their
prescription-writing powers as a means to engage in illicit drug dealing and trafficking
as conventionally understood. Beyond this, however, the statute manifests no intent
to regulate the practice of medicine generally.
(19) Drugs and Narcotics � 21--Offenses--Medical Marijuana Defense--State Law.--The
Compassionate Use Act of 1996 (CUA) (Health & Saf. Code, � 11362.5) does not
authorize doctors to use their prescription-writing powers to engage in illicit
drug dealing and trafficking as conventionally understood. Instead, the act grants
doctors the authority to recommend marijuana to their patients for medicinal purposes.
No other use is contemplated. As a matter of fact, the CUA provides that it shall
not be construed to supersede legislation prohibiting persons from engaging in conduct
that endangers others, nor to condone the diversion of marijuana for nonmedical
purposes (� 11362.5, subd. (b)(2)). Similarly, nothing in the Medical Marijuana
Program authorizes an individual to smoke or otherwise consume marijuana unless
otherwise authorized by this article, nor shall anything in this section authorize
any individual or group to cultivate or distribute marijuana for profit (Health
& Saf. Code, � 11362.765). These restrictions are consistent with the goals
of the Controlled Substances Act (21 U.S.C. � 801 et seq.). Irrespective of Congress's
prohibition against marijuana possession, it is unreasonable to believe that use
of medical marijuana by qualified users under the CUA for the limited purpose of
medical treatment will create a significant drug problem.
(20) Drugs and Narcotics � 21--Offenses--Medical Marijuana Defense--Return of Confiscated
Marijuana to Qualified User--State Law.--Federal supremacy principles did not prohibit
a [*361] city's return of marijuana, after the dismissal of a criminal
charge, to a qualified user whose possession of the drug was legally sanctioned
under state law.
[Cal. Forms of Pleading and Practice (2007) ch. 126A, Constitutional Law, � 126A.23;
8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, �� 84, 165; 2 Witkin
& Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare,
� 70; 3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, � 209.]
(21) Constitutional Law � 112--Substantive Due Process--Protection from Arbitrary
Government Action--Return of Confiscated Property to Owner.--U.S. Const., 14th Amend.,
provides that no state shall deprive any person of life, liberty, or property, without
due process of law (U.S. Const., 14th Amend., � 1). The right to regain possession
of one's property is a substantial right. Continued official retention of legal
property with no further criminal action pending violates the owner's due process
rights. A court may not refuse to return legal property to deter possible future
crime.
(22) Drugs and Narcotics � 21--Offenses--Medical Marijuana Defense--Return of Confiscated
Marijuana to Qualified User.--Even though state law is silent as to whether a qualified
patient is entitled to the return of his or her marijuana once criminal charges
against him or her have been dismissed, due process principles seem to compel that
result. Continued official retention of a qualified patient's marijuana simply cannot
be squared with notions of fundamental fairness. A local jurisdiction no doubt has
every right to retain a defendant's marijuana if it is pursuing a marijuana-related
prosecution against him or her, or if the defendant's possession does not comport
with the Compassionate Use Act of 1996 (CUA) (Health & Saf. Code, � 11362.5).
In those situations, the law clearly contemplates the destruction of the subject
marijuana. But withholding small amounts of marijuana from people who are qualified
patients under the CUA would frustrate the will of the people to ensure such patients
have the right to obtain and use marijuana without fear of criminal prosecution
or sanction (� 11362.5, subd. (b)(1)(A), (B)). It would also be inconsistent with
due process, as well as other provisions of the law that contemplate the return
of lawfully possessed property.
COUNSEL: Woodruff, Spradlin & Smart, John R. Shaw, Magdalena
Lona-Wiant and Douglas C. Holland for Petitioner.
Jones & Mayer, Martin J. Mayer and Krista MacNevin Jee for California State
Sheriffs' Association, California Police Chiefs' Association, [*362]
California Peace Officers' Association, California District Attorneys Association,
City of Bakersfield, City of Burbank, City of Costa Mesa, City of Dixon, City of
Exeter, City of Huntington Beach, City of La Habra, City of Newport Beach, City
of Ontario, City of Placentia, City of Redding, City of Santa Clara, City of Tulare,
City of Visalia, City of Whittier and City of Yreka as Amici Curiae on behalf of
Petitioner.
No appearance for Respondent.
Joseph D. Elford for Real Party in Interest.
James Humes, Chief Assistant Attorney General, Stacy Boulware Eurie, Assistant Attorney
General, Christopher E. Krueger and Teri L. Block, Deputy Attorneys General, for
Attorney General Bill Lockyer as Amicus Curiae on behalf of Respondent and Real
Party in Interest.
JUDGES: Opinion by Bedsworth, Acting P. J., with Aronson and Fybel,
JJ., concurring.
OPINION BY: Bedsworth
OPINION
[**658] BEDSWORTH, Acting P. J.--We confront here the facially
anomalous request that we approve state confiscation of a substance which is legal
in the circumstances under which it was possessed. This request is terra incognita,
as will be most of the many confusing aspects of the current tension between California
marijuana laws and those of the federal government. Our conclusions are therefore
more a matter of analytical accouchement than precedential accretion. But we are
convinced by the Attorney General's argument that governmental subdivisions of the
state are bound by the state's laws in this instance and must return materials the
state considers legally possessed. We are persuaded due process will allow nothing
less. Accordingly, we deny the City of Garden Grove's petition.
During a traffic stop, Garden Grove police seized about a third of an ounce of marijuana
from real party in interest Felix Kha. However, because Kha had a doctor's approval
to use marijuana for medical reasons, the prosecutor dismissed the drug charge he
was facing. The trial court then granted Kha's motion for return of property and
ordered the Garden Grove Police Department to give him back his marijuana. [**659]
Petitioner, the City of Garden Grove, seeks a writ of mandate compelling the trial
court to reverse its order. It does not contest the dismissal of the underlying
drug charge, nor does it frontally challenge California's medical marijuana laws.
Rather, it contends Kha is not entitled to the return of his marijuana because that
drug is generally prohibited under federal law. It asks us to make the marijuana's
confiscation paramount.
[*363] FACTS
This case was resolved without the presentation of any formal evidence, and none
of the proceedings were transcribed. Accordingly, the facts and procedural history
are derived from the exhibits and declarations submitted in connection with the
writ petition.
On June 10, 2005, Garden Grove police officers stopped Kha for failing to yield
at a red light. Kha consented to a search of his car, and the officers seized a
cloth bag from his front passenger seat. Inside the bag there was a smoking pipe
and a plastic container labeled "Medical Cannabis." The officers opened
the container and found 8.1 grams, or less than a third of an ounce, of marijuana.
Kha said he purchased the marijuana from "a lab in Long Beach" and used
the drug because he suffers from severe pain. He also said he had a doctor's referral
to use marijuana and gave the officers a piece of paper that "looked [to them]
like a referral." Nonetheless, the officers seized the marijuana and cited
Kha for unlawfully possessing less than one ounce of the drug while driving. (Veh.
Code, � 23222, subd. (b).) They also cited him for running the red light. (Veh.
Code, � 21453, subd. (a).)
TRIAL COURT PROCEEDINGS
Kha pleaded guilty to the traffic violation, but he contested the drug charge. During
a pretrial conference, he presented the court with a "Physician's Statement"
from Dr. Philip A. Denney. Dated June 1, 2005, the statement authorizes Kha to use
cannabis as medicine for an undisclosed "serious medical condition." It
also contains Kha's acknowledgment that "cannabis remains illegal under federal
law." After calling Dr. Denney's office to verify the information contained
in the statement, the prosecutor dismissed the drug charge for lack of evidence.
The prosecutor, however, opposed Kha's request to have the marijuana returned to
him.
The trial court set a hearing on that matter for the following day, at which time
Kha filed a formal petition for the return of his property, i.e., the marijuana.
According to the prosecutor, the court "explained to the parties that the [drug]
charge had been dismissed, the marijuana was, therefore, not illegally possessed,
and that in the absence of any authority saying [the court] may not return the property,
the property must be returned." The trial court therefore ordered the Garden
Grove Police Department to return the marijuana to Kha.
[*364] CONTENTIONS
The City of Garden Grove (the City) petitions for a writ of mandate and/or prohibition
directing the trial court to vacate its order and enter a new one denying Kha's
motion for return of property. The City sees itself "caught in the middle of
a conflict between state and federal law"--a position with which we can certainly
sympathize--on the issue of medical marijuana and does not want to be perceived
as facilitating a breach of federal law by returning Kha's marijuana to him. Because
marijuana possession is generally prohibited under federal law, the City contends
the trial court's order is legally flawed and [**660] constitutes
an abuse of discretion. The City also maintains that to the extent state law authorizes
or mandates the return of Kha's marijuana, it is preempted by federal law.
We invited and received an informal response from Kha. (See Palma v. U.S. Industrial
Fasteners, Inc. (1984) 36 Cal.3d 171, 180 [203 Cal. Rptr. 626, 681 P.2d 893].) He
claimed he is legally entitled to the return of his marijuana under state law and
as a matter of due process. He also argued that federal law is not controlling in
this proceeding and that the Tenth Amendment to the United States Constitution effectively
prohibits federal interference with California's medical marijuana laws.
In its informal reply, the City argued for the first time that although the drug
charge against Kha was dismissed, he is not entitled to the protections of California's
medical marijuana laws. The City also reiterated its position that consistent with
federal drug policy, Kha's marijuana must be destroyed.
On the heels of the parties' informal briefing, the Attorney General of California
sought leave to file an amicus curiae brief. Indeed, the Attorney General claimed
the City should have served him with its petition because it was challenging the
very constitutionality of California's medical marijuana laws. (See Cal. Rules of
Court, rule 8.29(c)(1).)
The City responded with a clarification of its position on the preemption issue.
It represented it is not seeking to have the state's medical marijuana laws declared
unconstitutional on preemption grounds. Instead, it is simply arguing those laws
are preempted to the extent they require the return of federal contraband. In other
words, for purposes of this proceeding, the City is not contesting the right of
qualified patients to use medical marijuana pursuant to state law; it just does
not want to be in the position of having to return marijuana to such a patient once
it has been lawfully seized by a member of its police force.
We ordered Kha to show cause why mandate should not issue and granted the Attorney
General's request to file an amicus curiae brief. Siding with the [*365]
trial court, the Attorney General contends (1) the City lacks standing to challenge
the court's order; (2) Kha's possession of marijuana was legal under state law;
(3) state law favors the return of lawfully possessed marijuana; (4) federal law
does not preclude the return of Kha's marijuana; and (5) under the Tenth Amendment,
state courts cannot be compelled to implement federal drug laws. Kha's return to
the City's petition echoes these points. His principal argument is that federal
law does not override his right under state law and due process to the return of
his property.
In its reply brief and in its answer to the Attorney General's amicus curiae brief,
the City reiterates its original arguments and continues to question Kha's right
to possess marijuana under state law. The City also contends it has standing to
challenge the trial court's order because it has a special interest in keeping marijuana
off the streets and its police officers may be criminally liable if they return
Kha's marijuana to him. The City further argues that while the Tenth Amendment prevents
the federal government from ordering the City to take affirmative action to carry
out federal law, its police force has the right to enforce federal law on its own
accord by seizing and destroying Kha's marijuana.
Finally, we have received an amici curiae brief on behalf of the California sheriffs',
police chiefs', and peace officers' associations. [Footnote 1] Contrary to the Attorney
[**661] General's position, these local law enforcement associations
urge us to overturn the trial court's ruling. They insist ordering the return of
Kha's marijuana is not only legally improper, it would undermine police morale and
effectiveness and send the wrong message to local law enforcement officers who are
involved in the interdiction of illegal drugs.
STANDING
As a procedural matter, the parties and amici curiae dispute whether the City has
standing to challenge the trial court's order. We find that while the City may not
have standing in the traditional sense of the term, public policy considerations
dictate that we afford the City standing in order to resolve the important and widespread
issue presented in this case.
(1) The issue of standing may be raised at any time during mandamus proceedings.
(Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 438 [261 Cal. Rptr.
574, 777 P.2d 610].) As a general rule, "[t]o have standing to seek a writ
of mandate, a party must be 'beneficially interested' (Code Civ. [*366]
Proc., � 1086), i.e., have 'some special interest to be served or some particular
right to be preserved or protected over and above the interest held in common with
the public at large.' [Citation.] This standard ... is equivalent to the federal
'injury in fact' test, which requires a party to prove by a preponderance of the
evidence that it has suffered 'an invasion of a legally protected interest that
is "(a) concrete and particularized, and (b) actual or imminent, not conjectural
or hypothetical." ' [Citation.]" (Associated Builders & Contractors,
Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 361-362 [87 Cal. Rptr.
2d 654, 981 P.2d 499].)
To fully understand the City's interest in this proceeding, it is helpful to examine
the role its police department has with respect to seized property. That role, as
explained in Gershenhorn v. Superior Court (1964) 227 Cal. App. 2d 361 [38 Cal.
Rptr. 576], is primarily one of custodian for the court. In upholding a defendant's
pretrial right to seek the return of property seized without a warrant, the Gershenhorn
court stated, "[E]ven as to property not yet offered or received in evidence
we think that judicial control still exists. We are not now concerned with a private
seizure, by a private individual, for some purpose of his own. We deal with property
seized by a public officer, acting under the color of his status as a law enforcement
officer, and seized solely on the theory that it constitutes a part of the evidence
on which judicial action against its owner or possessor will be taken. We regard
property so taken and so held as being as much held on behalf of the court in which
the contemplated prosecution will be instituted as is property taken and held under
a warrant. The seizing officer claims no right in or to the property, or in or to
its possession, save and except as the court may find use for it. He must respond,
as does any custodian, to the orders of the court for which he acted." (Id.
at p. 366; see also Pen. Code, � 1536 [property taken on a warrant must be retained
by the officer subject to court order]; In re Seizure of Approx. 28 Grams of Marijuana
(N.D.Cal. 2003) 278 F. Supp. 2d 1097, 1105 [the seizing officer is effectively an
"agent of the court" with respect to the subject property]; People v.
Superior Court (Laff) (2001) 25 Cal.4th 703, 713 [107 Cal. Rptr. 2d 323, 23 P.3d
563] [officers who seize property "do so on behalf of the court"]; People
v. Superior [**662] Court (Loar) (1972) 28 Cal. App. 3d 600, 610
[104 Cal. Rptr. 876] [resolution of criminal proceedings "did not confer on
the seizing officer any right to retain the property independent of and beyond that
derived from the search warrant"].)
The rules are no different where, as here, the seizure involves a controlled substance
and the case is dismissed prior to trial. In that situation, the police may not
destroy or otherwise dispose of the seized drugs without prior judicial approval.
(See Health & Saf. Code, � 11473.5, subd. (a).) [Footnote 2] And if the court
determines the defendant was in lawful possession of the drugs, then [*367]
they may not be destroyed at all. (Ibid.) It is up to the court to decide whether
destruction is appropriate in a given case; the police role is limited. (Ibid.;
People v. Backus (1979) 23 Cal.3d 360, 384-385 [152 Cal. Rptr. 710, 590 P.2d 837];
People v. West (1990) 224 Cal. App. 3d 1337, 1344-1345 [274 Cal. Rptr. 569].) [Footnote
3]
In light of these considerations, we are hard pressed to see how the City has a
special interest in this proceeding. Its police department does have actual custody
of the subject marijuana, and the trial court's order requires the department to
take certain action with respect to that property, i.e., relinquish it to its owner.
So, at least in terms of physical possession, it cannot be gainsaid that the department
occupies a unique role with respect to the marijuana. But its duties insofar as
looking after the property and ensuring its safe transfer are plainly ministerial.
No special discretion, judgment or skill is called for that would suggest the City
has a special interest in the property. Like the public at large, the City certainly
has a general interest in ensuring that controlled substances are only returned
to individuals who have a lawful right to possess them. But beyond that, its interest
appears tangential. (See Waste Management of Alameda County, Inc. v. County of Alameda
(2000) 79 Cal.App.4th 1223, 1233-1234 [94 Cal. Rptr. 2d 740] [to have standing in
mandamus proceeding, the petitioner's interest must be substantial, not indirect
or attenuated].)
In seeking to cobble together a standing argument, the City claims the legalization
of medical marijuana has contributed to a marked increase in violent crime in Garden
Grove and other cities throughout the state, thereby impacting the City's citizenry
and its police force. To support this claim, the City relies on a document entitled,
"Riverside County District Attorney's Office White Paper, Medical Marijuana:
History and Current Complications." That document, however, does not say anything
about the City. And the City does not cite any authority in support of its request
for us to take judicial notice of the document. Finding no basis upon which to grant
the request, we deny it. (See Evid. Code, � 450 et seq.) Suffice it to say, there
is nothing in the record of this particular case to indicate a link between medical
marijuana--in Riverside County or anywhere else--and violent crime in Garden Grove.
(See generally Gonzales v. Raich (2005) 545 U.S. 1, 63 [162 L. Ed. 2d 1, 125 S.
Ct. 2195] (dis. opn. of Thomas, J.) ["many law enforcement officials report
that the introduction of medical marijuana laws has not affected their law enforcement
efforts." (Italics added.)].) [*368]
[**663] The City also worries about the possibility it may be viewed
as aiding and abetting a violation of federal law if its officers return Kha's marijuana
to him. To be liable as an aider and abettor, a defendant must not only know of
the unlawful purpose of the perpetrator, he must also have the specific intent to
commit, encourage or facilitate the commission of the offense. (People v. Beeman
(1984) 35 Cal.3d 547, 561 [199 Cal. Rptr. 60, 674 P.2d 1318].) Stated differently,
the defendant must associate himself with the venture and participate in it as in
something that he wishes to bring about and seek by his actions to make it succeed.
(Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A. (1994) 511
U.S. 164, 190 [128 L. Ed. 2d 119, 114 S. Ct. 1439].) Even though Kha would be in
violation of federal law by possessing marijuana, it is rather obvious the City
has no intention to facilitate such a breach. Its challenge to the superior court's
order is clear proof of that, and in future cases the existence of case law compelling
it will resolve this issue.
We note that, in an analogous case, the court in Conant v. Walters (9th Cir. 2002)
309 F.3d 629 upheld an injunction prohibiting the federal government from enforcing
a policy that threatened to punish doctors for recommending medical marijuana to
their patients. The government attempted to justify the policy on the basis such
recommendations, although necessary to invoke the protections of California's medical
marijuana law, could lead to violations of the federal drug laws. Indeed, it argued
doctors providing a recommendation for the use of marijuana could be seen as aiding
and abetting, or conspiring in, the violation of such laws. But the Conant court
ruled a doctor's anticipation of a patient's possible violation of federal law "does
not translate into aiding and abetting, or conspiracy. ... Holding doctors responsible
for whatever conduct the doctor could anticipate a patient might engage in after
leaving the doctor's office is simply beyond the scope of either conspiracy or aiding
and abetting." (Id. at pp. 635-636.)
Likewise here, holding the City or individual officers responsible for any violations
of federal law that might ensue from the return of Kha's marijuana would appear
to be beyond the scope of either conspiracy or aiding and abetting. No one would
accuse the City of willfully encouraging the violation of federal law, were it merely
to comply with the trial court's order. The requisite intent to transgress the law
is so clearly absent here that the argument is no more than a straw man.
Moreover, in light of the federal immunity statute, it seems rather unlikely that
any officer involved in carrying out the trial court's order would be subject to
liability for handling Kha's marijuana. Title 21 United States Code section 885(d)
provides, "Except as provided in sections 2234 and 2235 of title 18 [respecting
illegal procurement and execution of search warrants], no civil or criminal liability
shall be imposed by virtue of this subchapter upon [*369] any duly
authorized Federal officer lawfully engaged in the enforcement of this subchapter,
or upon any duly authorized officer of any State, territory, political subdivision
thereof, ... who shall be lawfully engaged in the enforcement of any law or municipal
ordinance relating to controlled substances."
The statute "confers immunity on all state and federal law enforcement officers
engaged in the enforcement of the [federal Controlled Substances] Act or of any
state or municipal law relating to controlled substances." (State v. Kama (2002)
178 Or.App. 561, 564 [39 P.3d 866].) Thus, it did not matter in Kama that the Portland
police might be seen as violating federal law by returning marijuana to an individual
who was entitled to use the drug under [**664] Oregon's medical
marijuana law. Because 21 United States Code section 885(d) shields police officers
from federal liability, the court determined the Portland police had to return the
marijuana to the defendant in that case. (State v. Kama, supra, 39 P.3d at pp. 867-868.)
The City correctly notes the Oregon law at issue in Kama, unlike California's medical
marijuana laws, expressly requires the return of a defendant's cannabis if he is
deemed to be a lawful user. (See State v. Kama, supra, 39 P.3d at p. 867.) However,
the applicability of 21 United States Code section 885(d) does not hinge on such
a requirement; the statute "makes law enforcement personnel immune from any
civil or criminal liability arising out of their handling of controlled substances
as part of their official duties." (State v. Kama, supra, 39 P.3d at p. 867.)
There can be little question the Garden Grove police would be acting pursuant to
their official duties, were they to comply with the trial court's order to return
Kha's marijuana to him. For that reason, the chance they would be subject to federal
liability for so doing seems nugatory. (Cf. U.S. v. Rosenthal (9th Cir. 2006) 454
F.3d 943, 947-948 [private citizen who cultivated marijuana for distribution at
a cannabis cooperative was not entitled to immunity from federal drug prosecution
because he was not involved in the enforcement of any drug laws].) [Footnote 4]
In short, it seems the City and its police officers really have nothing to lose
by returning Kha's marijuana to him. The possession charge against Kha having been
dismissed, the marijuana is not needed as part of an ongoing criminal prosecution.
(Cf. People v. Superior Court (Shayan) (1993) 21 Cal.App.4th 621 [26 Cal. Rptr.
2d 173] [police not required to return allegedly stolen property while criminal
proceedings were still pending].) And for [*370] reasons we have
explained, there is little danger the City or its officers would be perceived as
aiding and abetting, or could be held responsible for, any possible violation of
federal law if they returned Kha's marijuana to him. Simply put, it does not appear
the City would be adversely affected if its officers carried out the trial court's
order in this case. (See Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793,
796-797 [166 Cal. Rptr. 844, 614 P.2d 276].)
That said, we are mindful this case involves an important issue related to California's
medical marijuana laws. As we explain below, those laws are intended to give qualified
patients the right to obtain and use marijuana for medical purposes. But if the
City prevails, the police could thwart that objective by withholding marijuana they
have seized from qualified patients, even when the patient is no longer subject
to state criminal prosecution. Whether, as the City contends, this is a necessary
consequence of federal drug policy is a question of first impression and one that
is of considerable importance to those who rely on cannabis for medicinal purposes.
Moreover, media reports indicate the question of whether local authorities must
return lawfully seized marijuana to its owner once state criminal proceedings have
been terminated in the owner's favor is a topical issue that has produced inconsistent
[**665] outcomes throughout the state. (See, e.g., Sonoma County
judge orders man's medicinal marijuana destroyed, Orange County Register (Apr. 19,
2007) <http://www.ocregister.com/ocregister/news/state/article_1663210.php>
[as of Nov. 28, 2007]; Pemberton, Police Return Seized Pot, San Luis Obispo Tribune
(Jan. 4, 2003) <http://www.marijuana.org/SLOtribunel-04-03.htm>
[as of Nov. 21, 2006]; Woods, Sheriff Returns Pot, The Pinnacle (Apr. 27, 2002)
<http://216.167.102.130/pinnacle4-27-02.htm>
[as of Nov. 21, 2006]; Panta, Prosecutors Drop Effort to Keep Pot From Owner, Desert
Dispatch (Apr. 16, 1999) <http://www.marijuana.org/DesertDisp4-16-99.html.>
[as of Nov. 21, 2006]; Metcalfe, Simi Valley Police Return Marijuana Plants to Patient,
Los Angeles Times (June 20, 1998) <http://www.marijuana.org/PRSimiValley.html>
[as of July 24, 2007].)
(2) These considerations militate strongly in favor of granting the City standing.
(See Brandt v. Superior Court (1985) 37 Cal.3d 813, 816 [210 Cal. Rptr. 211, 693
P.2d 796] [reviewing mandamus petition due to "the compelling circumstances
presented" and because case was of "widespread interest"]; Marron
v. Superior Court (2003) 108 Cal.App.4th 1049, 1056 [134 Cal. Rptr. 2d 358] [standing
granted where petition presented a "significant issue of first impression"];
Anderson v. Superior Court (1989) 213 Cal. App. 3d 1321, 1328 [262 Cal. Rptr. 405]
[entertaining writ petition because it presented issues of great public interest
that needed prompt resolution].) So does the fact this case implicates constitutional
concerns respecting the relationship [*371] between state and federal
law. Courts have recognized that, consistent with our federal system of government,
state political subdivisions should be given standing to invoke the supremacy clause
to challenge a state law on preemption grounds. (See Star-Kist Foods, Inc. v. County
of Los Angeles (1986) 42 Cal.3d 1, 5-10 [227 Cal. Rptr. 391, 719 P.2d 987], relying
on Rogers v. Brockette (5th Cir. 1979) 588 F.2d 1057 and San Diego Unified Port
Dist. v. Gianturco (S.D.Cal. 1978) 457 F. Supp. 283.) Standing is also favored if
an interested party may otherwise find it difficult or impossible to challenge the
decision at issue. (See, e.g., Driving Sch. Assn. of Cal. v. San Mateo Union High
Sch. Dist. (1992) 11 Cal.App.4th 1513, 1519 [14 Cal. Rptr. 2d 908].) And here it
appears quite likely the City will not be able to obtain judicial review of the
trial court's order unless it is afforded standing in this proceeding. For all these
reasons, we conclude the City has standing to challenge the trial court's order.
STATE LAWS RESPECTING MEDICAL MARIJUANA
(3) In California, marijuana is classified as a schedule I controlled substance
and is listed as a hallucinogenic drug. (See � 11054, subd. (d)(13).) While possession
of marijuana is generally prohibited, its use for medicinal purposes has been legal
under state law for over a decade. Passed via Proposition 215, and codified in section
11362.5, the Compassionate Use Act of 1996 (CUA) provides:
"(b)(1) The people of the State of California hereby find and declare that
the purposes of the [CUA] are as follows:
"(A) To ensure that seriously ill Californians have the right to obtain and
use marijuana for medical purposes where that medical use is deemed appropriate
and has been recommended by a physician who has determined that the person's health
would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS,
chronic pain, spasticity, glaucoma, arthritis, [**666] migraine,
or any other illness for which marijuana provides relief.
"(B) To ensure that patients and their primary caregivers who obtain and use
marijuana for medical purposes upon the recommendation of a physician are not subject
to criminal prosecution or sanction.
"(C) To encourage the federal and state governments to implement a plan to
provide for the safe and affordable distribution of marijuana to all patients in
medical need of marijuana.
"(2) Nothing in this section shall be construed to supersede legislation prohibiting
persons from engaging in conduct that endangers others, nor to condone the diversion
of marijuana for nonmedical purposes. [*372]
"(c) Notwithstanding any other provision of law, no physician in this state
shall be punished, or denied any right or privilege, for having recommended marijuana
to a patient for medical purposes.
"(d) Section 11357, relating to the possession of marijuana, and Section 11358,
relating to the cultivation of marijuana, shall not apply to a patient, or to a
patient's primary caregiver, who possesses or cultivates marijuana for the personal
medical purposes of the patient upon the written or oral recommendation or approval
of a physician.
"(e) For the purposes of this section, 'primary caregiver' means the individual
designated by the person exempted under this section who has consistently assumed
responsibility for the housing, health, or safety of that person." (� 11362.5.)
(4) In People v. Mower (2002) 28 Cal.4th 457 [122 Cal. Rptr. 2d 326, 49 P.3d 1067],
the California Supreme Court determined the CUA does not provide complete immunity
from arrest and prosecution; rather, the statute provides a "limited immunity"
that allows a defendant "to raise his or her status as a qualified patient
or primary caregiver as a defense at trial ... [or] ... prior to trial on the ground
of the absence of reasonable or probable cause to believe that he or she is guilty."
(28 Cal.4th at p. 464.) When applicable, however, the CUA "renders possession
and cultivation of the marijuana noncriminal for a qualified patient or primary
caregiver." (28 Cal.4th at p. 471.) The possession and cultivation become just
as lawful as "the possession and acquisition of any prescription drug."
(Id. at p. 482.)
(5) In 2003, the Legislature enacted the Medical Marijuana Program (MMP) to, inter
alia, "promote the fair and orderly implementation of the CUA. [Citation.]"
(People v. Wright (2006) 40 Cal.4th 81, 85 [51 Cal. Rptr. 3d 80, 146 P.3d 531].)
The MMP created a program for the issuance of identification cards to qualified
patients and primary caregivers. (� 11362.71 et seq.) Because the program is voluntary,
one need not obtain an identification card to be entitled to the protections it
provides. (� 11362.765, subd. (b); People v. Wright, supra, 40 Cal.4th at pp. 93-94
[the MMP applies to both cardholders and noncardholders alike].)
"Those protections include[] immunity from prosecution for a number of marijuana-related
offenses that had not been specified in the CUA, among them transporting marijuana.
'Subject to the requirements of this article, [qualified patients and primary caregivers]
shall not be subject, on that sole basis, to criminal liability under Section 11357
[possession of marijuana], 11358 [cultivation of marijuana], 11359 [possession for
sale], 11360 [transportation], 11366 [maintaining a place for the sale, giving away
or use of [*373] marijuana], 11366.5 [making available [**667]
premises for the manufacture, storage or distribution of controlled substances],
or 11570 [abatement of nuisance created by premises used for manufacture, storage
or distribution of controlled substance].' (� 11362.765, subd. (a).)" (People
v. Wright, supra, 40 Cal.4th at p. 93, italics added.)
(6) This expansion of protected activities "represents a dramatic change in
the prohibitions on the use, distribution and cultivation of marijuana for persons
who are qualified patients or primary caregivers ... ." (People v. Urziceanu
(2005) 132 Cal.App.4th 747, 785 [33 Cal. Rptr. 3d 859].) In enacting the MMP, the
Legislature quite clearly intended to broaden the scope of the CUA in order to facilitate
greater access to marijuana for those patients in need of the drug. (See generally
Note, It's High Time: California Attempts to Clear the Smoke Surrounding the Compassionate
Use Act (2004) 35 McGeorge L.Rev. 545, 560 [the MMP "succeeds in bolstering
and expanding California law that supports the right of seriously ill Californians
to obtain and use medical marijuana"].) And one way the Legislature sought
to achieve this goal was by authorizing qualified patients to transport marijuana
intended for their own personal medical use. (People v. Wright, supra, 40 Cal.4th
at p. 93.)
KHA'S RIGHT TO INVOKE THE CUA AND MMP
In the trial court, the prosecution did not dispute Kha's assertion he was a qualified
patient who was entitled to the protections afforded under the CUA and MMP. After
personally verifying the information contained in the "Physician's Statement"
Kha provided, the prosecutor dismissed the drug charge that was pending against
him for insufficient evidence. Accordingly, no formal evidence was presented on
the issue.
In its petition for writ of mandate, the City likewise did not dispute Kha's right
to invoke California's medical marijuana laws. However, in its subsequent filings
with this court, the City has put forth various reasons as to why it believes Kha
does not have that right. Namely, (1) he obtained his marijuana illegally; (2) he
does not have a qualifying illness; and (3) he was not charged with a requisite
offense. In other words, the City challenges the applicability of the CUA and MMP
in this case on both factual and legal grounds.
From a factual standpoint, the burden of proving the foundational elements for a
medical marijuana defense rests with the defendant. (See People v. Mower, supra,
28 Cal.4th at p. 481 [the defendant is merely required to raise a reasonable doubt
concerning the existence of those foundational facts]; People v. Frazier (2005)
128 Cal.App.4th 807, 816-822 [27 Cal. Rptr. 3d 336] [*374] [same].)
However, in this case, the prosecutor impliedly accepted the validity of that defense
based on Kha's presentation of informal evidence, which obviated the need for Kha
to present formal evidence on the issue. Under these circumstances, it would be
unfair to second-guess the evidentiary basis for Kha's defense. Because the prosecutor
led Kha to believe his marijuana possession was protected under California law,
and because the prosecutor did not demand further proof on the issue, he effectively
waived any evidentiary issues for purposes of this proceeding, and we discern no
basis for according the City a more advantageous position here than the prosecution.
(See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 [69 Cal. Rptr. 2d
917, 948 P.2d 429] [waiver rules preclude appellate court from considering [**668]
issues involving the admission of evidence that were not raised in the trial court].)
[Footnote 5]
Waiver principles notwithstanding, the City's factually based arguments are unpersuasive.
The City argues Kha failed to prove he lawfully acquired the marijuana in question.
Noting that at the time of his arrest Kha told the police he acquired the marijuana
from "a lab in Long Beach," the City maintains this proves he neither
cultivated it himself nor acquired it from a "primary caregiver," as that
term is defined under the MMP.
(7) But that does not seem to matter. "A person is entitled to the protections
of the CUA if that person is a 'seriously ill' Californian whose use of marijuana
'has been recommended by a physician who has determined that the person's health
would benefit from the use of marijuana in the treatment of ... any ... illness
for which marijuana provides relief.' [Citation.]" (People v. Wright, supra,
40 Cal.4th at p. 94, fn. omitted.) Nothing in the CUA or MMP appears to require
a qualified patient to provide evidence regarding the source of his or her marijuana.
The City also disputes whether Kha was ill enough to invoke the CUA and MMP. Specifically,
it maintains Kha failed to prove he had a chronic or persistent illness for which
marijuana may be beneficial. Again, this issue was not contested below, so it is
hard to fault Kha for not providing a more detailed account of his medical condition,
and it would be a denial of due process to rule against him on a point he was never
required to prove. At any rate, the statement from his physician states Kha has
a serious medical condition and may benefit from the use of medical cannabis, and
that puts Kha in the category of persons the CUA and MMP were designed to protect.
(See �� 11362.5, subd. (b)(1)(A) [CUA covers enumerated illnesses and any [*375]
other ailment for which marijuana provides relief], 11362.7, subd. (h) [MMP covers
enumerated medical conditions and any other chronic or persistent medical symptom
that may cause serious harm to patient].)
(8) We now turn to the City's argument that, as a matter of law, the CUA and MMP
are inapt in this case. By their terms, those enactments apply only to certain drug
offenses that are contained in the Health and Safety Code. (�� 11362.5, subd. (d),
11362.765, subd. (a).) Because Kha was charged with violating the Vehicle Code,
the City claims he is outside the scope of those enactments. We cannot agree.
Although the CUA speaks only to the possession and cultivation of marijuana (� 11362.5,
subd. (d) [referencing �� 11357 & 11358]), the MMP is more broadly intended
to protect a qualified patient "who transports ... marijuana for his or her
own personal medical use." (� 11362.765, subd. (b)(1); see People v. Wright,
supra, 40 Cal.4th at p. 93.) As we have explained above, the record indicates Kha
is such a patient. However, the only transportation statute referenced in the MMP
is section 11360. (See � 11362.765, subd. (a).) Subdivision (a) of section 11360
makes it a felony to transport marijuana, and subdivision (b) of section 11360 renders
such conduct a misdemeanor in cases where the transportation involves not more than
28.5 grams [**669] (1.0053 ounces) of marijuana, other than concentrated
cannabis.
(9) The MMP does not mention Vehicle Code section 23222, subdivision (b), the law
with which Kha was charged. That provision states that "[e]xcept as authorized
by law, every person who possesses, while driving a motor vehicle ... not more than
one avoirdupois ounce [28.3495 grams] of marijuana, other than concentrated cannabis
... is guilty of a misdemeanor ... ." Obviously, a violation of this provision
also constitutes a violation of section 11360, subdivision (b). The Vehicle Code
provision is simply a more specific statute covering the act of driving, as opposed
to other methods of transportation.
(10) We are therefore impelled to the conclusion it would be illogical to find the
MMP covers one provision, but not the other. Such a result would lead to the absurd
consequence of permitting a defendant who drives with a large amount of marijuana
to invoke the MMP (see, e.g., People v. Wright, supra, 40 Cal.4th at pp. 95-98 [defendant
who drove with over a pound of marijuana in his car was entitled to invoke the MMP]),
while excluding drivers who transport the small amount covered by the Vehicle Code
section. We cannot construe the law to permit such a clearly unintended and patently
nonsensical result. (Cf. People v. Trippet (1997) 56 Cal.App.4th 1532, 1550 [66
Cal. Rptr. 2d 559] [pre-MMP case allowing defendant to invoke CUA as a defense to
the charge of transporting marijuana under � 11360, even though that offense is
not mentioned in the CUA].) [*376]
(11) There is an additional, even more fundamental reason why qualified patients
who are charged with violating Vehicle Code section 23222, subdivision (b) should
be included within the ambit of the state's medical marijuana laws. As Kha notes,
that section prohibits driving with marijuana, "[e]xcept as authorized by law."
(Veh. Code, � 23222, subd. (b).) Since the MMP allows the transportation of medical
marijuana (� 11362.765, subd. (b)(1); People v. Wright, supra, 40 Cal.4th at pp.
93-94), the MMP effectively authorizes the conduct described in Vehicle Code section
23222, subdivision (b), when, as here, the conduct at issue is the transportation
of a small amount of medical marijuana for personal use--conduct "authorized
by law."
Consequently, the fact Kha was charged with violating the Vehicle Code, as opposed
to the Health and Safety Code, is of no moment. Because the MMP encompasses the
very conduct underlying his alleged transgression, i.e., transportation, and because
the record indicates the marijuana in question was for Kha's own personal medical
use, we have no reason to dispute the prosecutor's implied determination that for
purposes of state law, Kha was in legal possession of the marijuana that was found
in his car. [Footnote 6]
FEDERAL TREATMENT OF MARIJUANA
While there is no shortage of learned discourse pertaining to marijuana, misunderstanding
about it still abounds. For example, many would be surprised to learn the federal
government did not directly criminalize the possession and sale of marijuana until
1970. (See Gonzales v. Raich, supra, 545 U.S. at pp. 10-12.) Before then, the drug
was subject to various tax and regulatory schemes that restricted its usage, but
it was not banned outright or considered illegal per se. [**670]
(Ibid.) Equally surprising, perhaps, is that there is a "genuine difference
of expert opinion" as to whether cannabis has therapeutic value to certain
individuals. (Conant v. Walters, supra, 309 F.3d at p. 643 (conc. opn. of Kozinski,
J.).) While there is evidence marijuana use "may be appropriate for a small
class of patients who do not respond well to, or do not tolerate, available prescription
drugs" (id. at pp. 640-641, fn. omitted), and its use in such cases has prompted
growing acceptance of medical marijuana at the state level (id. at p. 643 [noting
"Alaska, Arizona, Colorado, Maine, Nevada, Oregon and Washington ... have followed
California in enacting medical marijuana laws by voter initiative"]), the drug
is now generally prohibited under federal law (id. at p. 640; see generally Comment,
The Medical Use of Marijuana: State Legislation, Judicial Interpretation and Federal
Drug Laws (2002) 4 J. Legal Advoc. & Prac. 156 [discussing medical marijuana
enactments and federal drug laws]). [*377]
(12) Under the Controlled Substances Act (CSA) (21 U.S.C. � 801 et seq.), it is
"unlawful for any person knowingly or intentionally to possess a controlled
substance unless such substance was obtained directly, or pursuant to a valid prescription
or order, from a practitioner, while acting in the course of his professional practice
... ." (21 U.S.C. � 844(a).) The exception regarding a doctor's prescription
or order does not apply to any controlled substance Congress has classified as a
schedule I drug, such as marijuana. (See 21 U.S.C. �� 812(c)(10), 829; United States
v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 483, 492, fn. 5 [149 L.
Ed. 2d 722, 121 S. Ct. 1711].) Schedule I drugs are categorized as such because
they have (1) a "high potential for abuse," (2) no "currently accepted
medical use in treatment in the United States," and (3) "a lack of accepted
safety for use ... under medical supervision." (21 U.S.C. � 812(b)(1).)
Congress's intent to preclude the use of marijuana for medicinal purposes is reflected
in this statutory scheme: "By classifying marijuana as a Schedule I drug, as
opposed to listing it on a lesser schedule, the manufacture, distribution, or possession
of marijuana became a criminal offense, with the sole exception being use of the
drug as part of a Food and Drug Administration pre-approved research study. [Citations.]"
(Gonzales v. Raich, supra, 545 U.S. at p. 14.) "[S]imple possession" of
marijuana is a misdemeanor (21 U.S.C. � 844(a)), and possession for "personal
use" renders the offender "liable to the United States for a civil penalty
in an amount not to exceed $ 10,000" (21 U.S.C. � 844a(a)). For purposes of
this proceeding, Kha does not dispute he was in violation of federal law by possessing
marijuana in his car. [Footnote 7]
THE LEGALITY OF KHA'S POSSESSION UNDER SECTION 11473.5
Having determined that Kha's marijuana possession was legal under state law, but
illegal under federal law, and that we should hear the City's complaints about the
order of the court below, we come, at long last, to the central question presented
in this case: Is Kha entitled to the return of his marijuana? In examining this
issue, we first turn to section 11473.5, the statute governing the disposition of
controlled substances [**671] in cases that have been dismissed
before trial.
Section 11473.5 provides, "All seizures of controlled substances, instruments,
or paraphernalia used for unlawfully using or administering a controlled substance
which are in possession of any city, county, or state official [*378]
as found property, or as the result of a case in which no trial was had or which
has been disposed of by way of dismissal or otherwise than by way of conviction,
shall be destroyed by order of the court, unless the court finds that the controlled
substances, instruments, or paraphernalia were lawfully possessed by the defendant."
(� 11473.5, subd. (a), italics added.)
Relying on Ross v. Ragingwire Telecommunications, Inc. [Footnote *] (Cal.App.),
review granted November 5, 2005, S138130, the City argued the federal prohibition
against marijuana possession rendered Kha's possession unlawful for purposes of
section 11473.5. However, shortly after the City filed its petition in this case,
the Supreme Court granted review in Ross, so that case has no precedential value.
(Cal. Rules of Court, rules 8.1105(e)(1), 8.1115(a).)
There is, however, a pair of cases from the Third Appellate District that shed light
on the issue before us. In People v. Bianco (2001) 93 Cal.App.4th 748 [113 Cal.
Rptr. 2d 392], the court upheld a probation condition prohibiting the use of marijuana,
even though the defendant was a qualified patient under the CUA. The court reasoned
that because marijuana possession is illegal under federal law, the condition was
"reasonably directed at defendant's future criminality." (93 Cal.App.4th
at p. 753.)
But in People v. Tilehkooh (2003) 113 Cal.App.4th 1433 [7 Cal. Rptr. 3d 226], the
court held the CUA "provides a defense to a probation revocation based on marijuana
possession or use." (Tilehkooh, at p. 1445.) The People argued the defendant's
marijuana possession was a violation of his probation, citing the condition that
he obey not only the laws of California, but also the laws of the United States.
However, the court was not persuaded. It explained, "The People have misunderstood
the role that the federal law plays in the state system. The California courts long
ago recognized that state courts do not enforce the federal criminal statutes. 'The
State tribunals have no power to punish crimes against the laws of the United States,
as such. The same act may, in some instances, be an offense against the laws of
both, and it is only as an offense against the State laws that it can be punished
by the State, in any event.' (People v. Kelly (1869) 38 Cal. 145, 150 ... ; see
also People v. Grosofsky (1946) 73 Cal. App. 2d 15, 17-18 [165 P.2d 757].)"
(People v. Tilehkooh, supra, 113 Cal.App.4th at pp. 1445-1446, fn. omitted.)
Continuing, the Tilehkooh court reasoned, "Since the state does not punish
a violation of the federal law 'as such,' it can only reach conduct subject to the
federal criminal law by incorporating the conduct into the state law. The People
do not claim they are enforcing a federal criminal sanction attached to the federal
marijuana law. Rather, they seek to enforce the state sanction of probation revocation
which is solely a creature of state law. [Citation.] The [*379]
state cannot do indirectly what it cannot do directly. That is what it seeks to
do in revoking probation when it cannot punish the defendant under the criminal
law. [�] ... [�] California courts do not enforce the federal marijuana possession
laws when defendants prosecuted for marijuana possession have a qualified immunity
under [the CUA]. Similarly, California courts should not enforce federal [**672]
marijuana law for probationers who qualify for the immunity provided by [the CUA]."
(People v. Tilehkooh, supra, 113 Cal.App.4th at pp. 1446-1447.)
Tilehkooh's reasoning is apropos here, insofar as the City is not attempting to
enforce a federal sanction attached to the federal marijuana laws. Instead, it seeks
to enforce the sanction of property destruction under state law as expressed in
section 11473.5. But to paraphrase Tilehkooh, the City cannot do indirectly what
it could not do directly. That is what it seeks to do in destroying Kha's marijuana
when it cannot punish him under the criminal law for possessing it.
Gates v. Superior Court (1987) 193 Cal. App. 3d 205 [238 Cal. Rptr. 592] (Gates)
and People v. Barajas (1978) 81 Cal. App. 3d 999 [147 Cal. Rptr. 195], upon which
the City relies, do not undermine the reasoning of Tilehkooh because those decisions
deal with the question of whether state police officers have the authority to arrest
individuals for certain violations of federal law. (See also Marsh v. United States
(2d Cir. 1928) 29 F.2d 172 [seminal opinion by Judge Learned Hand answering this
question in the affirmative].) The validity of Kha's arrest is not at issue in this
case. [Footnote 8] What's more, there is no question the officers who arrested Kha
were acting pursuant to state, as opposed to federal, law.
The distinction between mere arrest by local police agencies and a full-on prosecution
in state courts is an important one. Gates was a case in which the Los Angeles Police
Department, investigating violations of state law, came across information suggesting
their suspects were in the country illegally. They notified Immigration and Naturalization
Services, and Gates complained this was improper enforcement by state officers of
a federal statute. But as the Gates court recognized, this was not sufficient state
involvement to constitute "enforcement" of the federal statutes. "Where
otherwise warranted investigation by local officers leads to evidence of a federal
civil or criminal violation, the local authority has the right to exchange information
with federal [*380] authorities; to deny such an exchange is not
reasonable and rewards those federal violators fortunate enough to be arrested by
local, rather than federal, officials." (Gates, supra, 193 Cal. App. 3d at
p. 219.) As Gates explains, this is a matter of " 'comity and good citizenship.'
" (Ibid.) Arrest and notification, however, is a far cry from processing such
individuals through a state court system with neither mandate for, nor experience
in, the application of federal laws. We can find no case that would support that
process.
(13) Notwithstanding the legality of Kha's arrest, the question remains whether
in this state proceeding, the City can invoke and rely solely on federal law to
justify a particular sanction (i.e., the destruction of Kha's property) when Kha's
conduct was consistent with, and indeed sanctioned under, state law. Amici curiae
for the City point out that state courts generally have the authority to "render
binding judicial decisions that rest on their own interpretations of federal law."
(ASARCO Inc. v. Kadish (1989) 490 U.S. 605, 617 [**673] [104 L.
Ed. 2d 696, 109 S. Ct. 2037].) But saying state judges may interpret federal law
is a far cry from saying they may invoke it to punish conduct that is legally permissible
under state law. Applying the reasons of Tilehkooh, we think judicial enforcement
of federal drug policy is precluded in this case because the act in question--possession
of medical marijuana--does not constitute an offense against the laws of both the
state and the federal governments. Because the act is strictly a federal offense,
the state has " 'no power to punish [it] as such.' " (People v. Tilehkooh,
supra, 113 Cal.App.4th at p. 1445, quoting People v. Kelly, supra, 38 Cal. at p.
150.) Indeed, we, and all the trial courts in the state, would be astonished if
prosecutors began filing federal charges in state courts.
Given the restrictions on state courts' enforcement of federal laws, section 11473.5
cannot be read as requiring the destruction of a controlled substance based solely
on the fact that possession of the substance is prohibited under federal law. Unless
the substance's possession is also prohibited under state law, the state has no
authority to invoke the sanction of destruction set forth in the statute. In other
words, the question of whether a substance is lawfully possessed for purposes of
section 11473.5 turns on state, not federal law. If, as here, the defendant's possession
of a controlled substance is lawful under California law, then the substance is
"lawfully possessed" for purposes of that section.
PREEMPTION
(14) Still, "the supremacy clause of article VI of the United States Constitution
grants Congress the power to preempt state law. '[S]tate law that conflicts with
federal law is "without effect." ' [Citation.]" (In re Tobacco Cases
II (2007) 41 Cal.4th 1257, 1265 [63 Cal. Rptr. 3d 418, 163 P.3d 106].) [*381]
The City here invokes the preemption doctrine, but not by asking us to declare the
CUA and MMP unconstitutional across the board, nor by challenging the right of Californians
to use marijuana for medicinal reasons. Rather, it urges us to find the federal
drug laws preempt state law to the extent state law authorizes the return of medical
marijuana to qualified users.
The City relies primarily on Gonzales v. Raich, supra, 545 U.S. 1, but that case
was not decided on preemption grounds. The sole issue presented in Raich was whether
Congress had the constitutional authority under the commerce clause to prohibit
the manufacture and possession of marijuana, even when the marijuana was produced
and consumed locally in accordance with the CUA. (545 U.S. at p. 15.) Finding the
aggregate effect of such local activity could well impact interstate commerce, the
court upheld Congress's authority in this regard. (Id. at pp. 16-22.)
The Raich court was not overly impressed with the fact California had legalized
the possession and cultivation of marijuana. Indeed, it noted "[t]he Supremacy
Clause unambiguously provides that if there is any conflict between federal and
state law, federal law shall prevail. It is beyond peradventure that federal power
over commerce is ' "superior to that of the States to provide for the welfare
or necessities of their inhabitants," ' however legitimate or dire those necessities
may be. [Citations.] Just as state acquiescence to federal regulation cannot expand
the bounds of the Commerce Clause [citation], so too state action cannot circumscribe
Congress' plenary commerce power. [Citation.]" (Gonzales v. Raich, supra, 545
U.S. at p. 29, fn. omitted.)
[**674] This does not mean the CUA is preempted by federal law.
The quoted passage simply reflects the realization that, having determined Congress's
commerce power extended to local drug activity, it did not matter to the Raich court
that Californians had voted to legalize medical marijuana under state law. That
fact simply did not weigh into the court's consideration in deciding the scope of
Congress's authority under the commerce clause.
And understandably so. Doctrinally, the commerce clause focuses on Congress's power
to enact legislation in the first place. If Congress has a rational basis for concluding
the targeted activity has a substantial effect on interstate commerce, it can regulate
it. (Gonzales v. Raich, supra, 545 U.S. at p. 22.) Whether the regulation is welcome
or unwelcome in the state in which the activity occurs is of no moment. As the Raich
court explained, states can neither limit nor expand the scope of Congress's authority
under the commerce clause. Consequently, the CUA and the contours of that law were
completely irrelevant to the issue presented in Raich. (See Young, Just Blowing
Smoke? Politics, Doctrine, and the Federalist Revival after Gonzales v. Raich (2006)
2005 Sup. Ct. Rev. 1, 34.) [*382]
The upshot of Raich is that the federal government and its agencies have the authority
to enforce the federal drug laws, even in a state like California that has sanctioned
the use of marijuana for medicinal purposes. However, we do not read Raich as extending
beyond this particular point, into the realm of preemption. The Raich court merely
examined the validity of the CSA under the commerce clause; it did not go further
and examine the relationship between the CSA and the CUA. (See Note, California
Takes a Hit: The Supreme Court Upholds Congressional Authority over the State-Approved
Use of Medicinal Marijuana. Gonzales v. Raich, 545 U.S. 1 (2005) (2006) 28 U.Ark.
Little Rock L.Rev. 545, 580 ["the Court's holding in Raich did not address
the preemption of the [CUA]"]; Kittrie, Federalism, Deportation, and Crime
Victims Afraid to Call the Police (2006) 91 Iowa L.Rev. 1449, 1490 [Raich "neither
declared [the CUA] invalid on preemption or any other grounds nor gave any indication
that California officials must assist in the enforcement of the CSA."].) Consequently,
the high court's decision did not sound the death knell of the CUA in state court
proceedings. (Cf. People v. Wright, supra, 40 Cal.4th at p. 89, fn. 5 [noting the
parties in that case both agreed Raich is not implicated in deciding "the applicability
of the CUA to state criminal charges"].) [Footnote 9]
(15) The fact is, "the structure and limitations of federalism ... allow the
States ' "great latitude under their police powers to legislate as to the protection
of the lives, limbs, health, comfort, and quiet of all persons." ' [Citation.]"
(Gonzales v. Oregon (2006) 546 U.S. 243, 270 [163 L. Ed. 2d 748, 126 S. Ct. 904]
[striking down a federal rule aimed at undermining Oregon's physician-assisted suicide
law].) This includes the power to decide what is criminal and what is not. (Gonzales
v. Raich, supra, 545 U.S. at p. 42 (dis. opn. of O'Connor, J.).) Affording the states
broad authority on these matters "promotes innovation by allowing [**675]
for the possibility that 'a single courageous State may, if its citizens choose,
serve as a laboratory; and try novel social and economic experiments without risk
to the rest of the country.' " (Ibid.; accord, United States v. Oakland Cannabis
Buyers' Cooperative, supra, 532 U.S. at p. 502 (conc. opn. of Stevens, J.).) Therefore,
any " ' "[c]onsideration of issues arising under the Supremacy Clause
'start[s] with the assumption that the historic police powers of the States [are]
not to be superseded by ... Federal Act unless that [is] the clear and manifest
purpose of Congress.' " ' " (Jevne v. Superior Court (2005) 35 Cal.4th
935, 949 [28 Cal. Rptr. 3d 685, 111 P.3d 954], italics added, quoting Cipollone
v. Liggett Group, Inc. (1992) 505 U.S. 504, 516 [120 L. Ed. 2d 407, 112 S. Ct. 2608].)
[*383]
(16) This assumption against preemption has particular force in this case. Preemption,
it must be remembered, is fundamentally a question of congressional intent. (In
re Tobacco Cases II, supra, 41 Cal.4th at p. 1265.) And we are adjured to presume
against preemption unless we find it to be the " ' "clear and manifest
purpose of Congress." ' " (Ibid., quoting Cipollone v. Liggett Group,
Inc., supra, 505 U.S. at p. 516.) (17) But in enacting the CSA, Congress made it
clear it did not intend to preempt the states on the issue of drug regulation. Indeed,
"[t]he CSA explicitly contemplates a role for the States in regulating controlled
substances ... ." (Gonzales v. Oregon, supra, 546 U.S. at p. 251.) It provides:
"No provision of [the CSA] shall be construed as indicating an intent on the
part of the Congress to occupy the field in which that provision operates, including
criminal penalties, to the exclusion of any State law on the same subject matter
which would otherwise be within the authority of the State, unless there is a positive
conflict between that provision ... and that State law so that the two cannot consistently
stand together." (21 U.S.C. � 903.) (18) "This express statement by Congress
that the federal drug law does not generally preempt state law gives the usual assumption
against preemption additional force. [Citation.]" (National Pharmacies, Inc.
v. De Melecio (D.P.R. 1999) 51 F. Supp. 2d 45, 54; see also Note, Guns, Drugs, and
... Federalism?--Gonzales v. Raich Enfeebles the Rehnquist Court's Lopez-Morrison
Framework (2006) 61 U.Miami L.Rev. 237, 251 [describing 21 U.S.C. � 903 as a "direct
preemption disclaimer"].)
Despite this, the City argues that in enacting the CSA, Congress intended to occupy
the field of marijuana regulation so extensively that ordering the return of a defendant's
medical marijuana under state law would be absolutely anathema to congressional
intent. We cannot agree. It's abjuration of preemption is simply too clear. Congress
enacted the CSA to combat recreational drug abuse and curb drug trafficking. (Gonzales
v. Oregon, supra, 546 U.S. at p. 271; Gonzales v. Raich, supra, 545 U.S. at pp.
10-13.) Its goal was not to regulate the practice of medicine, a task that falls
within the traditional powers of the states. (Gonzales v. Oregon, supra, 546 U.S.
at p. 269.) Speaking for the majority in Gonzales v. Oregon, Justice Kennedy explained,
"The [CSA] and our case law amply support the conclusion that Congress regulates
medical practice insofar as it bars doctors from using their prescription-writing
powers as a means to engage in illicit drug dealing and trafficking as conventionally
understood. Beyond this, however, the statute manifests no intent [**676]
to regulate the practice of medicine generally." (Ibid., italics added.)
(19) The CUA does not authorize doctors to use their prescription-writing powers
"to engage in illicit drug dealing and trafficking as conventionally understood."
Instead, the act grants doctors the authority to recommend marijuana to their patients
for medicinal purposes. No other use is contemplated. As a matter of fact, the CUA
provides that it shall not "be construed to [*384] supersede
legislation prohibiting persons from engaging in conduct that endangers others,
nor to condone the diversion of marijuana for nonmedical purposes." (� 11362.5,
subd. (b)(2).) Similarly, nothing in the MMP "shall authorize the individual
to smoke or otherwise consume marijuana unless otherwise authorized by this article,
nor shall anything in this section authorize any individual or group to cultivate
or distribute marijuana for profit." (� 11362.765.)
These restrictions are consistent with the goals of the CSA. Irrespective of Congress's
prohibition against marijuana possession, "[i]t is unreasonable to believe
that use of medical marijuana by [qualified users under the CUA] for [the] limited
purpose [of medical treatment] will create a significant drug problem" (Conant
v. McCaffrey (N.D.Cal. 1997) 172 F.R.D. 681, 694, fn. 5, affd. Conant v. Walters,
supra, 309 F.3d 629), so as to undermine the stated objectives of the CSA. (Cf.
Gonzales v. Oregon, supra, 546 U.S. at p. 273 [state initiative allowing doctors
to prescribe controlled substances for the purpose of facilitating a patient's suicide
is not inconsistent with the CSA's objective to prevent recreational drug use].)
It is even more unreasonable to believe returning marijuana to qualified patients
who have had it seized by local police will hinder the federal government's enforcement
efforts. Practically speaking, this subset of medical marijuana users is too small
to make a measurable impact on the war on drugs. Not only are their numbers meager,
persons seeking the return of their medical marijuana are not entitled to possess
the drug in such quantities as would make them likely candidates for federal prosecution.
(See Conant v. Walters, supra, 309 F.3d at p. 646, fn. 10 (conc. opn. of Kozinski,
J.) [noting federal prosecutors typically pursue marijuana charges only in cases
involving the cultivation of over 500 indoor plants or 1,000 outdoor plants, or
the possession of more than 1,000 pounds of the drug].) Upholding the return of
Kha's 8.1 grams of marijuana would simply not constitute a real or meaningful threat
to the federal drug enforcement effort. This is not a case in which preemption is
necessary to the federal scheme.
In considering the City's preemption argument, it is also important to recognize
what the CUA does not do. It does not expressly "exempt medical marijuana from
prosecution under federal ... law." (U.S. v. Cannabis Cultivators Club (N.D.Cal.
1998) 5 F. Supp. 2d 1086, 1100.) "[O]n its face," the act "does not
purport to make legal any conduct prohibited by federal law; it merely exempts certain
conduct by certain persons from California drug laws." (Ibid.) While in passing
the CUA the voters may have wanted to go further and actually exempt marijuana from
prosecution under federal law, a result which would have led to an irreconcilable
conflict between state and federal law (5 F. Supp. 2d at p. 1100), we know from
Raich that the commerce [*385] clause forecloses that possibility.
So, what we are left with is a state statutory scheme that limits state prosecution
for medical marijuana possession but does not limit enforcement of the federal drug
laws. This scenario simply does not implicate [**677] federal supremacy
concerns. (U.S. v. Cannabis Cultivators Club, supra, 5 F. Supp. 2d at p. 1100.)
[Footnote 10]
Our conclusion in this regard finds support in the case of Hyland v. Fukuda (9th
Cir. 1978) 580 F.2d 977. There, the Ninth Circuit Court of Appeals ruled a Hawaii
law allowing felons to carry guns was not preempted by a federal law prohibiting
such conduct. The court reasoned the state law "has no impact on the legality
of the same act under federal law. Simply put, Congress has chosen to prohibit an
act which Hawaii has chosen not to prohibit; there is no conflict between [the federal
law] and [the state law]." (Id. at p. 981.)
Similarly, here, there is no conflict based on the fact that Congress has chosen
to prohibit the possession of medical marijuana, while California has chosen not
to. California's statutory framework has no impact on the legality of medical marijuana
under federal law: "Enforcement of the CSA can continue as it did prior to
the [CUA]." (Gonzales v. Raich, supra, 545 U.S. at p. 63 (dis. opn. of Thomas,
J.).)
In arguing for preemption, the City relies on Frazier v. State (Alaska 1977) 566
P.2d 1023, which was decided two years after the Alaska Supreme Court ruled "that
possession of marijuana by adults at home for personal use is constitutionally protected"
by the right of privacy contained in the Alaska and United States Constitutions.
(Ravin v. State (Alaska 1975) 537 P.2d 494, 511.) In the wake of this ruling, the
defendant in Frazier was charged with possessing marijuana in his car. (Frazier
v. State, supra, 566 P.2d at p. 1023.) After the charge was dismissed, he sought
the return of his marijuana, but the lower courts denied the request on the ground
that marijuana possession is prohibited under federal law. (Ibid.) On appeal to
the Alaska Supreme Court, the defendant argued the federal law violated his right
to privacy under the United States Constitution. (Frazier, at p. 1024.) However,
in a curt, almost dismissive four-paragraph opinion, the Frazier court rejected
this argument and determined that in light of the federal prohibition against marijuana,
supremacy principles precluded the defendant from getting his marijuana back. (Ibid.)
[*386]
Noticeably absent from the lead opinion in Frazier is any substantive analysis to
support its holding. The opinion does not even mention whether the defendant's marijuana
possession--having occurred in a car and not a home--was legal under state law.
Justice Connor raised this point in his concurring opinion and argued that if the
defendant's possession was in fact protected by the right of privacy in the Alaska
Constitution, then the federal prohibition would not be controlling on the return
of property issue. (Frazier v. State, supra, 566 P.2d at p. 1024.) In that situation,
an order compelling the return of the defendant's marijuana would be entirely valid,
according to Justice Connor, because it "would not be one of 'interposition'
by Alaska to prevent the enforcement of federal law. The federal authorities could
still act immediately after the material was placed in the possession of the defendant."
[**678] (Ibid.) In other words, the supremacy clause would not
prevent the return of the defendant's marijuana. But the Frazier majority did not
address this issue.
(20) We share Justice Connor's viewpoint in this regard. Since Kha's possession
of marijuana is legal under state law, we do not believe the trial court's order
interferes with, or is preempted by, federal law. Admittedly, there is tension between
state and federal drug policy on the issue of medicinal marijuana. It is quite clear
California has chosen a policy that is at odds with the federal government's. But
the important point for purposes of this case is that state law does not interfere
with the federal government's prerogative to criminalize marijuana. As a general
rule, it is still illegal to possess marijuana under federal law, and nothing in
this opinion should be construed as suggesting otherwise. In fact, our holding with
respect to the preemption issue presented in this case is very narrow. All we are
saying is that federal supremacy principles do not prohibit the return of marijuana
to a qualified user whose possession of the drug is legally sanctioned under state
law. [Footnote 11]
DUE PROCESS AND THE RIGHT TO THE RETURN OF LAWFULLY POSSESSED PROPERTY
(21) Nevertheless, as the City points out, neither the CUA, the MMP nor section
11473.5 expressly provides for the return of lawfully possessed marijuana that has
been seized by the police. The City sees this as a legal impediment to ordering
the return of Kha's marijuana, but it fails to recognize the police cannot retain
a person's property without running afoul [*387] of basic constitutional
considerations. Particularly, the Fourteenth Amendment to the United States Constitution
provides that no state shall "deprive any person of life, liberty, or property,
without due process of law." (U.S. Const., 14th Amend., � 1; see also Cal.
Const., art. I, � 15.) It is beyond dispute that " '[t]he right to regain possession
of one's property is a substantial right ... .' [Citation.] Continued official retention
of legal property with no further criminal action pending violates the owner's due
process rights. [Citation.]" (People v. Lamonte (1997) 53 Cal.App.4th 544,
549 [61 Cal. Rptr. 2d 810].)
In Lamonte, the People objected to the defendant's motion for the return of various
telephone and computer equipment on the ground it was used to facilitate credit
card fraud. However, because the defendant was not convicted of fraud, and because
the items were not contraband per se, the court determined due process compelled
their return to the defendant. (People v. Lamonte, supra, 53 Cal.App.4th at pp.
551-553.) Even though the defendant was convicted of other offenses and had shown
himself capable of using the property for fraudulent purposes, the court ruled a
"court may not refuse to return legal property to ... deter possible future
crime." (Id. at p. 553.) Other courts have similarly invoked due process principles
to ensure the return of lawfully possessed property. (See, e.g., Ensoniq Corp. v.
Superior Court (1998) 65 Cal.App.4th 1537 [77 Cal. Rptr. 2d 507] [due process required
court to grant claimant's motion for return of intellectual property [**679]
where circumstances indicated claimant acquired property lawfully]; People v. Superior
Court (Loar), supra, 28 Cal. App. 3d at pp. 614-615 [continued police retention
of legally protected adult films would constitute a "patent denial of due process"];
Franklin v. Municipal Court (1972) 26 Cal. App. 3d 884, 896-897 [103 Cal. Rptr.
354] [consistent with due process principles, defendant was entitled to the return
of a revolver he was lawfully entitled to possess].)
The City pays little heed to this line of authority and instead directs our attention
to our own decision in Chavez v. Superior Court (2004) 123 Cal.App.4th 104 [20 Cal.
Rptr. 3d 21]. In that case, the police seized over 10 pounds of marijuana and 46
marijuana plants from the defendant, but charges against him were dismissed in the
furtherance of justice because he was already serving time on another case. (Id.
at p. 107.) The defendant sought the return of a "reasonable amount" of
marijuana for medicinal purposes, but it was clear--based on the amount of marijuana
he had--he was not a qualified user under the CUA. (123 Cal.App.4th at pp. 108-111.)
[Footnote 12] That being the case, he was not in lawful possession of the marijuana
for purposes of section 11473.5, and therefore the marijuana had to be destroyed.
(123 [*388] Cal.App.4th at p. 111.) In so holding, this court also
noted that nothing in the CUA "requires, or authorizes, the ... return [of]
confiscated marijuana." (123 Cal.App.4th at p.111, fn. omitted.) However, even
if it did, it would not have helped the defendant in Chavez because, given the amount
of marijuana found in his possession, he was not entitled to the CUA's protections
in the first place. (123 Cal.App.4th at p. 110.)
(22) The present case is factually inapposite to Chavez, given that Kha was in lawful
possession of his marijuana under state law. Even though state law is silent as
to whether a qualified patient like Kha is entitled to the return of his marijuana
once criminal charges against him have been dismissed, due process principles seem
to us to compel that result. Continued official retention of a qualified patient's
marijuana simply cannot be squared with notions of fundamental fairness. The City
no doubt has every right to retain a defendant's marijuana if it is pursuing a marijuana-related
prosecution against him, or if the defendant's possession does not comport with
the CUA. In those situations, the law clearly contemplates the destruction of the
subject marijuana. (See Chavez, supra, 123 Cal.App.4th 104; � 11473.5 [discussed
above]; see also � 11475 [calling for the forfeiture of controlled substances that
were illegally possessed]; Pen. Code, �� 1413 [allowing the police to retain property
that is subject to forfeiture], 1417.6 [authorizing the destruction of court exhibits,
including narcotics, that are unlawful to possess].)
But neither of those circumstances exist here. Withholding small amounts of marijuana
from people like Kha who are qualified patients under the CUA would frustrate the
will of the people to ensure such patients have the right to obtain and use marijuana
without fear of criminal prosecution or sanction. (� 11362.5, subd. (b)(1)(A), (B).)
It would also, as explained, be inconsistent with due process, as well as other
provisions of the law that contemplate the return of lawfully possessed property.
(See, e.g., Pen. Code, �� 1417.5 [**680] [return of exhibits in
criminal case], 1540 [restoration of property that was wrongfully taken pursuant
to search warrant], 1538.5, subd. (e) [return of property subject to successful
search or seizure motion].)
We are convinced, therefore, that the reasoning of Chavez is inapt here. The distinguishing
feature between that case and this one is that Kha, unlike the defendant in Chavez,
is a qualified patient whose marijuana possession was legally sanctioned under state
law. That is why he was not subjected to a criminal trial, and that is why the state
cannot destroy his marijuana. It is also [*389] why the police
cannot continue to retain his marijuana. Because Kha is legally entitled to possess
it, due process and fundamental fairness dictate that it be returned to him. [Footnote
13]
THE TENTH AMENDMENT AND OTHER CONSIDERATIONS
In light of our holding that federal law does not control the outcome of this case,
we need not consider the arguments put forth by Kha and the Attorney General as
to why ordering the destruction of Kha's marijuana pursuant to federal law would
violate the Tenth Amendment, which reserves the residual powers of the federal government
to the states or the People. (See generally Conant v. Walters, supra, 309 F.3d at
pp. 645-646 (conc. opn. of Kozinski, J.) [arguing that the federal government cannot
force state officials to enforce the federal marijuana laws without running afoul
of the "commandeering doctrine."].) Resolution of the Tenth Amendment
issue is simply unnecessary, given our previous conclusions. We therefore turn to
the arguments raised by amici curiae on behalf of the City.
Amici curiae argue the police should not have to return Kha's marijuana to him,
even though he is qualified to use the drug for medical reasons under California
law. [Footnote 14] Characterizing Kha as a "criminal defendant," amici
curiae claim the CUA only provides him with a "defense" to certain offenses
and does not make his possession of medical marijuana "lawful." But Kha
is clearly not a criminal defendant with respect to the subject marijuana. Since
the prosecution dismissed the drug charge he was facing, he is nothing more than
an aggrieved citizen who is seeking the return of his property. The terms "criminal"
and "defendant" do not aptly apply to him.
Furthermore, our Supreme Court has ruled that when applicable, the CUA "renders
possession and cultivation of ... marijuana noncriminal for a qualified patient
or primary caregiver." (People v. Mower, supra, 28 Cal.4th at p. 471.) The
possession and cultivation become "no more criminal ... than the possession
and acquisition of any prescription drug." (Id. at p. 482.) Translation: Medical
marijuana is "lawful" under the terms and conditions set forth in the
CUA. [*390]
Like the City itself, amici curiae also fear the Garden Grove police would be violating
[**681] federal law by returning Kha's marijuana to him. However,
instead of relying on aiding and abetting principles, amici curiae go a step further
than the City and argue the police would be in direct violation of federal law were
they to comply with the trial court's order. They point out that distribution of
a controlled substance is generally prohibited under 21 United States Code section
841(a)(1), but that section does not apply to persons who regularly handle controlled
substances in the course of their professional duties. For example, in U.S. v. Feingold
(9th Cir. 2006) 454 F.3d 1001, 1008, the court held that 21 United States Code section
841(a)(1) could only be applied to a doctor if, in distributing a controlled substance,
he intended "to act as a pusher rather than a medical professional." (Relying
on United States v. Moore (1975) 423 U.S. 122 [46 L. Ed. 2d 333, 96 S. Ct. 335].)
By analogy, it would stand to reason that the only way a police officer could be
found in violation of 21 United States Code section 841(a)(1) for distributing a
controlled substance is if he or she intended to act as a drug peddler rather than
a law enforcement official. In this case, it is quite obvious the police do not
want to give Kha his marijuana back at all, let alone have him use it for illicit
purposes. They are acting under the compulsion of a lawful court order. Therefore,
we cannot see how anyone could regard compliance with this order a violation of
21 United States Code section 841(a)(1).
Assuming someone could, it seems to us clear the police would be entitled to immunity
under 21 United States Code section 885(d). As discussed above, that statute provides
immunity to law enforcement personnel who are responsible for handling controlled
substances as part of their official duties. (See, ante, at pp. 368-370.) From a
legal standpoint, that should alleviate any fears the Garden Grove police have about
returning Kha's marijuana to him. As a practical matter, moreover, it seems exceedingly
unlikely that federal prosecutors would ever attempt to haul a local constable into
federal court for complying with a state judicial order calling for the return of
a qualified patient's medical marijuana. We are not aware of a single instance in
which this has ever occurred. We are confident, had there been such a phenomenon,
it would have been brought to our attention.
Amici curiae for the City also claim that ordering the return of Kha's marijuana
is ill advised as a matter of public policy because local police are held to a high
moral standard, they often cooperate with federal drug enforcement efforts, and
they are generally charged with enforcing and administering "the law of the
land," which includes federal law. We appreciate these considerations and understand
police officers at all levels of government have an interest in the interdiction
of illegal drugs. But it must be [*391] remembered it is not the
job of the local police to enforce the federal drug laws as such. For reasons we
have explained, state courts can only reach conduct subject to federal law if such
conduct also transcends state law, which in this case it does not. To the contrary,
Kha's conduct is actually sanctioned and made "noncriminal" under the
CUA. (People v. Mower, supra, 28 Cal.4th at p. 471.)
That may cause a dilemma for local narcotics officers in some instances, but it
strikes us as being an entirely manageable consequence of our federal form of government.
By complying with the trial court's order, the Garden Grove police will actually
be facilitating a primary principle of federalism, which is to allow the states
to innovate in areas bearing on the health and well-being of their citizens. Indeed,
"[o]ur federalist system, properly understood, allows California and a growing
[**682] number of other States [that have authorized the use of
medical marijuana] to decide for themselves how to safeguard the health and welfare
of their citizens." (Gonzales v. Raich, supra, 545 U.S. at p. 74 (dis. opn.
of Thomas, J.).) The CUA and MMP are clear manifestations of that decisionmaking
process.
By returning Kha's marijuana to him, the Garden Grove police would not just be upholding
the principles of federalism embodied in the United States Constitution, however.
They would also be fulfilling their more traditional duty to administer the laws
of this state. In that sense, the trial court's order comports with an officer's
dual obligation to support and defend both the California Constitution and the Constitution
of the United States. (See Cal. Const., art. XX, � 3.) [Footnote 15]
Mindful as we are of the general supremacy of federal law, we are unable to discern
any justification for the City or its police department to disregard the trial court's
order to return Kha's marijuana. The order is fully consistent with state law respecting
the possession of medical marijuana, and for all the reasons discussed, we do not
believe the federal drug laws supersede or preempt Kha's right to the return of
his property. That right has its origins in the CUA and MMP, but it is grounded,
at bottom, on fairness principles embodied in the due process clause. Those principles
require the return of Kha's property. [*392]
DISPOSITION
The petition is denied.
Aronson, J., and Fybel, J., concurred.
Petitioner's petition for review by the Supreme Court was denied March 19, 2008,
S159520.