Key Medical Marijuana Decisions – People v. Konow

Also see: Key Medical Marijuana Decisions by California Courts

People v. Konow

Citation 32 Cal. 4th 995, 88 P.3d 36 (2004)
PDF of Full Opinion https://www.canorml.org/legal/konow.pdf
Fact Summary Following the enactment of the Compassionate Use Act (“CUA”), the defendants formed and operated a for-profit corporation to distribute, and sell, marijuana to qualified patients and primary caregivers. Despite press statements that defendants “seemed to be complying with the spirit and letter of a very badly drafted law”, law enforcement instituted sting operations against defendants and, subsequently, defendants were charged with sale of marijuana. Following an initial dismissal of the charges by the magistrate, the superior court reinstated the complaint. On remand to the magistrate, defendants invited the magistrate to dismiss the complaint, on his own motion, in furtherance of justice under Penal Code section 1385. The magistrate declined the invitation, believing that by being compelled to reinstate the complaint under section 871.5, he was precluded from ordering dismissal on that basis. Back in the superior court, the judge dismissed the complaint concluding the magistrate erroneously and prejudicially failed to consider whether to dismiss the complaint in furtherance of justice under section 1385 and thereby denied defendants a substantial right.
Summary Rule of Law A superior court may set aside an information when the magistrate erroneously and prejudicially failed to consider whether to dismiss the complaint in furtherance of justice under Penal Code section 1385, even though a defendant has no right formally to make a motion requesting that the magistrate exercise such power. The circumstance that a defendant does not have a right formally to make a motion does not determine the question of whether a defendant is denied a substantial right. Rather, a defendant is denied a substantial right in the context of section 1385 when the magistrate does not clearly indicate an unwillingness to order dismissal on that basis.
Facts & Procedure Following the enactment of the CUA, the defendants formed and operated “a for-profit corporation . . . to distribute, and specifically to sell, marijuana to qualified patients and primary caregivers.” 32 Cal. 4th at 1004. In doing so, defendants “consulted . . . an attorney . . . regarding the adoption of procedures intended to guarantee that [the corporation] sold marijuana only to qualified patients and primary caregivers.” Id. The attorney provided defendants “with an opinion that the procedures thereafter adopted . . . made its sale of marijuana lawful under [the CUA] . . . .” Id. Moreover, “[t]he city attorney subsequently expressed to the press his opinion that [defendants] ‘seem[] to be complying with the spirit and letter of a very badly drafted law,’ and that ‘frankly, law enforcement has bigger things to worry about than someone with a serious ailment discreetly smoking marijuana at home.’” Id. at 1004−05. Nevertheless, law enforcement instituted sting operations against defendants and, subsequently, defendants were charged with sale of marijuana. Id. at 1002, 1005.

“At the conclusion of the preliminary examination, the magistrate ordered the complaint dismissed” on the following grounds: “‘1—[The CUA] is vague and ambiguous[.] 2—Denial of equal protection[.] 3—Denial of due process [.]’” Id. at 1006. “Thereafter, the People moved in the superior court under [Penal Code] section 871.5 to compel the magistrate to reinstate the complaint . . . .” Id. at 1007. The superior court granted the People’s motion. Id. at 1008. On remand to the magistrate, “[d]efendants . . . invited the magistrate to dismiss the complaint, on his own motion, in furtherance of justice under [Penal Code] section 1385, in light of the particular facts of the case.” Id. at 1008−09. “The magistrate declined the invitation, believing that by being compelled to reinstate the complaint under section 871.5, he was precluded from ordering dismissal on that basis”. Id. at 1009. Back in the superior court, “defendants moved . . . to set aside the information under [Penal Code] section 995 on the ground that they had not been legally committed by the magistrate” because the magistrate erred by not considering dismissal under section 1385. Id. The superior court granted the motion concluding “the magistrate erroneously and prejudicially failed to consider whether to dismiss the complaint in furtherance of justice under section 1385 in light of the particular facts of the case, and thereby denied defendants a substantial right affecting the legality of the commitment.” Id. at 1011.

The Court of Appeal reversed the superior court on the grounds that, inter alia, “the magistrate could not have denied defendants a substantial right by committing error with respect to the exercise of his power to order dismissal under section 1385, because a defendant has no right formally to make a motion requesting that the magistrate exercise such power.” Id. at 1012.

Issue 1. May a superior court set aside an information when the magistrate erroneously and prejudicially failed to consider whether to dismiss the complaint in furtherance of justice under Penal Code section 1385, even though a defendant has no right formally to make a motion requesting that the magistrate exercise such power?
Holding 1. A superior court may set aside an information when the magistrate erroneously and prejudicially failed to consider whether to dismiss the complaint in furtherance of justice under Penal Code section 1385, even though a defendant has no right formally to make a motion requesting that the magistrate exercise such power. See 32 Cal. 4th at 1021. Although “[i]t is true that a defendant does not have a right formally to make a motion before a magistrate to dismiss a complaint in furtherance of justice under section 1385”, “a defendant may ‘informally suggest’ that the magistrate consider dismissal on the magistrate’s own motion.” Id. at 1022 (citations omitted). Anyhow “the circumstance that a defendant does not have a right formally to make a motion . . . does not determine the question whether the magistrate’s erroneous and prejudicial failure to consider whether to order dismissal [under section 1385] could deny the defendant a substantial right affecting the legality of the commitment.” Id. Rather, “a defendant is denied a substantial right affecting the legality of the commitment when he or she is subjected to prejudicial error . . . .” Id. at 1024. An error in the context of section 1385 “is prejudicial when the magistrate does not clearly indicate[ ] an unwillingness to order dismissal on that basis.” Id. at 1025 (citations and internal quotations omitted) (alteration in original). Here, “[t]he magistrate’s [prejudicial] error is evident . . . [because] the magistrate incorrectly believed himself precluded from dismissing the complaint in furtherance of justice under section 1385 in light of the particular facts of the case.” Id. at 1026.
Discussion Konow—and its application Penal Code section 1385 to a case involving dispensary-defendants—provides another avenue for defending medical marijuana patients. This was particularly useful to dispensaries like the defendants in the case since the pre-Konow case law made it clear that a defense under the CUA did not apply to charges for the sale of marijuana. See People v. Galambos, 104 Cal. App. 4th 1147, 128 Cal. Rptr. 2d 844 (2002); People ex rel. Lungren v. Peron, 59 Cal. App. 4th 1383, 70 Cal. Rptr. 2d 20 (1997). However, as far as subsequent medical marijuana case law is concerned Konow is pretty much an “evolutionary dead-end” (i.e. the case is not implicated in any subsequent published appellate-level court decisions involving medical marijuana). There are two main reasons:

1. Konow involved an unusual set of procedural circumstances.

2. Perhaps most importantly, Konow was decided only a few months after the Medical Marijuana Program Act (“MMPA”) went into effect yet did not implicate MMPA. The MMPA specifically covers charges to the sale of marijuana so dispensary-defendants like the ones in Konow have a leg to stand on other than section 1385. As a result, most of the medical marijuana case law following Konow involves the effect of the MMPA—Konow has nothing to add on the effect of the MMPA.

Although useful, at the end of the day, Konow is more about the nuances of California criminal procedure than the nuances of California medical marijuana law.

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