JUDGE: PLANTS EXCEED MEDICAL NECESSITY

OROVILLE -- A jury today will likely not be asked to consider whether
two Concow men accused of illegal cultivation and possession of pot
for sale were part of a lawful medical marijuana collective.

In refusing to give an instruction pertaining to collectives sought by
the defense, assigned Judge William Lamb said he felt the evidence
showed the amount of marijuana being grown on the defendants' property
exceeded the "medical usage" of the individual patients.

Jodea Foster, the attorney for Michael Kelly, charged outside of court
it was an error and a violation of the defendant's rights not to give
the defense instruction, or even to define what a collective is.

"There was sufficient evidence for that issue to go to the jury. ...
The judge made his own findings as a 13th juror, which is not his job.
It's the jurors' job to figure out what the facts are," Foster objected.

Michael Kelly, 29, and his father, Sean Kelly, 57, were initially
arrested in October 2008 after 35 harvested marijuana plants were
allegedly found in a shed and a residence on Piute Drive in Concow
where the two were residing.

The younger Kelly testified they were part of a 16-member medical
marijuana collective.

The Kellys were re-arrested the following June, when sheriff's
deputies returned to find some 377 marijuana seedlings or "clones"
both on the Piute property and a second parcel of land owned by the
son on Jordan Hill Road.

California voters in 1996 passed the so-called Compassionate Use Act,
which permitted persons to possess and smoke marijuana with a doctor's
recommendation. A few years ago, the Legislature amended the law by
passing SB420, which among other things provided a viable defense in
court for patients unable to grow marijuana themselves who join
collectives for that purpose.

In refusing to instruct the Kellys' jury on the law pertaining to
medical marijuana collectives, Lamb told the attorneys Monday: "If
they exceeded the definition of permissible conduct by a collective,
it doesn't matter whether they were a collective or not."

Both Foster and Robert Radcliffe, the father's lawyer, questioned how
the jury could make such a determination without being told what a
medical marijuana collective is.

Lamb said he was relying on a recent decision by the California
Supreme Court that upheld a trial judge's refusal to give a so-called
"caregiver" instruction to a jury in an unrelated medical marijuana
case.

Unlike the "caregiver" case, Foster argued there are "disputed issues
of fact" in the Concow case, specifically regarding "what their intent
was to do with the marijuana and whether they had too much for the
members of their collective."

Lamb told the attorneys he was considering asking Kellys' jury when
they deliberate today to make "special findings" on their verdict form
as to those two questions.

No reply, the judge said, would likely bar him from imposing any
punishment on the charge at the time of sentencing.

"He seems to think that you can be convicted of a felony in the state
of California and not be punished," Foster told a reporter outside of
court Monday.

Even assistant district attorney Helen Harberts, who is prosecuting
the case, registered concern such a course of action could result in
any convictions returned by the jury being overturned on appeal.

Lamb has asked to meet with the lawyers this morning to discuss the
matter further before he instructs the nine-man, three-woman jury on
the law and both sides deliver their closing summations.

"The judge is making an opinion on what personal needs are ... ,"
Michael Kelly said. "My doctor's recommendation, states as far as I
know, 'as needed,' and I can tell you I need a lot more now that they
have stolen three seasons of crops from me and my family."