Fourth District Court of Appeal rejects requirement that all collective members must be actively involved in cultivation

The Fourth District Court of Appeal for California on Wednesday issued a unanimous published ruling in a landmark medical marijuana case that reverses the conviction of a San Diego dispensary operator, Jovan Jackson, convicted in September 2010 after being denied a defense in state court. Wednesday’s historic ruling also reversed the lower court’s finding that Jackson was not entitled to a defense, providing the elements for such a defense in future jury trials.

“This landmark decision not only recognizes the right of dispensaries to exist and provide medical marijuana to their patient members, it also grants a defense for those providers in state court,” said Joe Elford, chief counsel with Americans for Safe Access (ASA) , a medical marijuana advocacy group. Elford also argued Jackson’s appeal before the court.

“By rejecting the Attorney General’s argument that patients who utilize dispensaries must collaborate, or ‘come together’ in ‘some way’ to cultivate the marijuana they purchase, the court is establishing a clear standard for dispensaries across the state,” Elford said.

Specifically, Wednesday’s ruling held that in mounting a defense at trial, “Jackson was only required to produce evidence which would create a reasonable doubt as to whether the defense provided by the [Medical Marijuana Program Act] had been established.”

The court further held that, “the collective or cooperative association required by the act need not include active participation by all members in the cultivation process but may be limited to financial support by way of marijuana purchases from the organization. Thus, contrary to the trial court’s ruling, the large membership of Jackson’s collective, very few of whom participated in the actual cultivation process, did not, as a matter of law, prevent Jackson from presenting an MMPA defense.”

ASA appealed Jackson’s conviction in late 2011 and argued the case just two weeks ago. The case against Jackson became a symbol of the effort by San Diego District Attorney Bonnie Dumanis and other prosecutors across the state to criminalize storefront medical marijuana collectives.

However, Wednesday’s published decision deals a significant blow to that effort. It’s unclear whether the Attorney General will appeal today’s ruling to the California Supreme Court, but the case may get remanded back to the lower court for proper jury instructions if the district attorney chooses to retry Jackson.

Jackson operated his storefront collective without incident until he was raided by law enforcement in 2008. Jackson was tried for marijuana possession and sales in 2009, but was acquitted by a jury.

Dissatisfied with that result, District Attorney Dumanis tried Jackson again on the same charges stemming from a September 2009 law enforcement raid. It was at his second trial that Jackson was denied a defense and ultimately convicted.

San Diego Superior Court Judge Howard Shore, who referred to medical marijuana as “dope” and called California’s medical marijuana laws “a scam,” had sentenced Jackson to 180 days in jail.

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