CALIF. APPEALS COURT TOSSES MEDICAL POT CAPS

A California appellate court ruled Thursday that state legislators
overstepped their bounds in 2003 by limiting the amount of marijuana
that patients could possess for medical purposes.

The unanimous opinion by Los Angeles' 2nd District Court of Appeal
said legislators acted unconstitutionally when they passed a statute
that effectively amended Proposition 215 -- also known as the
Compassionate Use Act of 1996 -- to allow patients a maximum 8 ounces
of dried pot and six mature or 12 immature marijuana plants at any given time.

"The Legislature ... cannot amend an initiative, such as the CUA,
unless the initiative grants the Legislature authority to do so,"
Justice Richard Aldrich wrote. "The CUA does not grant the
Legislature the authority to amend it without voter approval."

Justices H. Walter Croskey and Patti Kitching concurred.

Joseph Elford, chief counsel of Oakland, Calif.-based Americans for
Safe Access, liked the sound of the ruling, but said he was somewhat
confused because the California Supreme Court held in 2006's People
v. Wright, 40 Cal.4th 81, that a per-patient limit on marijuana isn't
a cap, but rather a constitutionally sound threshold. In other words,
he said, eight ounces is merely a first threshold, with more pot
available to patients if their doctors say they need it.

"It might confuse things because [the appellate court says] those
numbers are caps, and they are not," said Elford, who was not a party
to the suit. "But at the same time, to the extent they are telling
law enforcement that they can't use the ... quantities as caps by
which to harass or convict medical marijuana patients, it's a good thing."

In Thursday's ruling, the 2nd District ordered a retrial for Patrick
Kelly, who was sentenced to three years of probation after jurors in
2006 found him guilty of possessing about 12 ounces of dried
marijuana and pot plants. Kelly had a doctor's approval to use the
substance for a variety of ailments, including hepatitis C, chronic
back problems and cirrhosis.

The appeal court said the prosecution erred during arguments at trial
by referencing a cap set forth in the Legislature's statute.

"The CUA does not quantify the marijuana a patient may possess,"
Aldrich wrote. "Rather, the only 'limit' on how much marijuana a
person falling under the act may possess is it must be for the
patient's 'personal medical purposes.'"

The court pointed out in a footnote, however, that the ruling doesn't
give patients "a free pass" to possess as much pot as they desire.
Instead, the amount should be "reasonably related" to a patient's
medical needs.

Aldrich noted that the Legislature recognized in 2004 it had
overreached the year before by instituting a cap. Sen. John
Vasconcellos, D-Santa Clara, who authored the unconstitutional
amendment, got a bill passed that removed the cap language. However,
Gov. Arnold Schwarzenegger vetoed the bill because he didn't like the
fact that it removed "reasonable and established quantity
guidelines," the justice wrote, quoting the governor's comments from back then.

"That may be a valid concern," Aldrich conceded. "Nevertheless, it is
a concern that cannot be addressed by the Legislature acting without
the voter's [sic] approval."

Los Angeles-based Supervising Deputy Attorney General Lawrence
Daniels, who handled the case, was out of the office and couldn't be
reached. His co-counsel, Deputy AG Ana Duarte, declined to comment.