ACTIVIST'S FELONY DRUG CONVICTION IS RESTORED

The 3rd District Court of Appeal has reinstated medical-marijuana activist
Steven Wynn Kubby's felony conviction for possessing mescaline. The
decision reverses a Placer Superior Court judge's 2001 ruling that reduced
the conviction to a misdemeanor.

The state appellate court's unpublished decision Monday said Judge John L.
Cosgrove incorrectly reasoned that mescaline possession could be treated
similarly to a related charge against Kubby for possessing psilocyn, or
psychedelic mushrooms.

Cosgrove reduced the psilocyn conviction from a felony to a misdemeanor
because the crime is considered under the law as a "wobbler" -- one that
could be interpreted as either a felony or misdemeanor.

The state appeals court said rules of statutory interpretation "do not
permit a court to rewrite (the law) and ignore its plain language, which
unambiguously makes mescaline possession a felony."

Kubby's attorney, J. David Nick of San Francisco, couldn't be reached for
comment Thursday.

The ruling pleased Christopher M. Cattran, the Placer County deputy
district attorney who prosecuted Kubby.

"I was confident when Judge Cosgrove reduced the charge to a misdemeanor
(that) he did so without legal authority and the sentence would be
overturned on appeal," he said.

Kubby, 56, is considered a fugitive by Placer County. He is wanted for
failing to report to jail in July 2001 to serve a 120-day sentence on the
mescaline and psilocyn convictions. He fled to Canada and lives in the
community of Sechelt in British Columbia.

Kubby contends that the four-month jail term awaiting him in Placer County
would be tantamount to a death sentence, because he would be unable to
receive marijuana therapy for adrenal cancer.

Narcotics officers raided Kubby's home in Olympic Valley in 1999, finding
265 marijuana plants. Kubby said he needed the marijuana to help treat his
cancer and that the therapy was approved by a physician.

He was prosecuted for possessing marijuana for sale and for cultivation,
but the charges were dismissed after a jury voted 11-1 for acquittal.

However, Kubby, a former Libertarian Party candidate for governor, was
convicted of possessing small quantities of mescaline and the psychedelic
mushrooms.

Cosgrove granted Kubby's request to have the convictions reduced to
misdemeanors and then placed him on three years' probation and ordered him
to serve 120 days in jail.

But Kubby fled the country after the U.S. Supreme Court ruled in May 2001
that selling or possessing marijuana for medical use is illegal.

Dan Gong, assistant deputy district attorney for Placer County, said his
office is not likely to have Kubby extradited from Canada.

"He's been granted three years' probation and faces minimal jail time
here," Gong said. "Frankly, it wouldn't be worth the time, effort or
expense to extradite him."