State Politics

January 27 wasn’t a banner day for appellants at the California Supreme Court.

Most media attention was focused on the state Republican Party failing to convince any members of the court to toss out district maps for the 40-member Senate drawn by the California Redistricting Commission prior to a determination of whether the GOP’s referendum to disqualify the commission’s effotrts would qualify for the ballot. Republicans worry the new district lines could give Democrats a two-thirds majority in the upper house.

In its 92-page ruling, the court said it wouldn’t ditch the districts drawn by the commission before it’s determined whether the referendum qualifies. And even if the referendum does qualify,  the commission’s work will be used for both the June primary and the November general election. Republicans were not pleased.

But what about the high court’s smackdown of Steven Ebbert Hughes?

Hughes challenged a condition of his three-year probation for cultivating and selling marijuana that prevented him from ingesting any medicinal marijuana.

A three-judge panel of the Fourth Appellate District rejected his arguments and the Supreme Court agreed.

Pulled over for an expired registration on his truck in May 2008 by Riverside County Sheriff deputies, Hughes was transporting 238 pot plants ranging in height from 6 inches to 8 inches.

Hughes told deputies he was delivering the plants to a collective in Los Angeles.  He became “upset” when one of the deputies placed the plants on the tailgate of his truck saying the heat would ruin them and cost him $400 in income.

Hughes told investigators he was going to trade the marijuana plants for marijuana he could sue to medicate himself. Investigators concluded that if Hughes needed medical marijuana he could grow it himself and that the plants were an income stream.

At his trial, Hughes didn’t testify. Dr. Weiss, who had approved Hughes’ use of marijuana, testified he had done so for the treatment of pain. A second witness, Christopher Conrad, testified as an expert on medical marijuana and cultivation.

Conrad said possession of 38 plants “is consistent with personal use by a person with a physician’s authorization for medical marijuana use.”

Besides his issues with the terms of his probation, Hughes said the court should have instructed the jury that being the member of a collective as a defense.

However, Hughes presented no evidence that he was a member of a collective.  Without evidence, no instruction was needed.

Upon Hughes’ conviction, the probation department recommended he be prohibited from possessing or using marijuana of any kind for three years.

Justice Art McKinster

At sentencing, the judge asked Hughes is view on the terms of his probation.

“Defense counsel responded that the condition would be appropriate for someone using their ‘license’ to sell dope on the street,” says te eopinion. “Defendant’s case, his attorney argued, is ‘completely and entirely different.’ Defense counsel reminded the trial court that defendant’s doctor testified at trial, and that defendant, who ‘certainly is a user of medical marijuana,’ is ‘trying his best to stay within the bounds of the law.’ ”

The judge expressed his view that the medical examination concluding Hughes needed medical marijuana was “cursory.”

However, the judge said Hughes could seek a more thorough examination and then petition the court to modify the terms of his probation.

One week after serving his 120 days in jail, Hughes asked the court to let him use medical marijuana. The judge said “no” and to return in six months.

The appellate judges note that the trial judge was wrong in focusing on whether Hughes needed to use medical marijuana or not.

“The trial court … questioned the palliative efficacy of marijuana and apparently believed that marijuana is not the only medication that could resolve defendant’s ailments and pain.

“In addition, the trial court was concerned that because defendant’s medical authorization does not limit the amount of marijuana defendant can use he might become addicted.

“The trial court’s concerns effectively question the wisdom of allowing marijuana to be used for medicinal purposes. That issue was resolved in 1996 when voters of this state passed the (Compassionate Use Act).

“Although the trial court’s focus was wrong, we affirm the result because the task of an appellate court is to ‘review the correctness of the challenged ruling, not the analysis used to reach it.’ “

(Editor’s Note: Winners in the case, at least partially, were Justice Art McKinster, who wrote the 19-page opinion, and his fellow justices Manuel Ramirez and Carol Codrington who signed it. It’s common for the Supreme Court to depublish appellate rulings so they can’t be used as precedent. The high court  also “partially publish” appellate rulings which they did here, excising Part 1 of the opinion’s ‘Discussion’  section — about one-third of McKinster’s work.)

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