JUDGE WON'T RETURN MEDICAL POT TO CONCOW MARIJUANA COLLECTIVE

OROVILLE -- Backing the idea that an earlier proposed court order had
been a joke, a judge Wednesday formerly denied a defense motion
seeking the return of large amounts of seized medical marijuana
plants to a Concow collective.

Assigned Judge William Lamb pointed out no members of the purported
collective had petitioned the court for the pot's return, and that in
any event, he felt the amount confiscated by sheriff's officers
exceeded what was medically necessary by the group.

A jury earlier this year had acquitted Michael Kelly and his father,
Sean Kelly, of identical felony charges of illegal cultivation and
possession of marijuana for sale.

Jurors said they believed the pair were growing the marijuana on
their Concow property as part of a loosely-organized but lawful
16-member medical marijuana collective, several of whose members
testified during the pair's trial.

Michael Kelly was found guilty by the same jury of a related
misdemeanor charge of illegally diverting water from a small creek to
irrigate the plants.

When he failed to appear as directed for sentencing on the water
diversion count Wednesday, the judge postponed the matter until Sept. 29.

Lamb agreed, however, to hear a motion filed by Kelly's attorney,
Jodea Foster, seeking return of some 56 marijuana plants and more
than 200 clones, which sheriff's officers had removed during two
successive raids in 2008 and 2009 on two Concow parcels owned by the
father and son.

Last month, the assigned judge had presented a "proposed order" to
both sides during a meeting in chambers agreeing to return "52
ounces" of the seized pot to each member of the Concow medical
marijuana collective, but later insisted it was intended only as an
inside joke.

The unsigned typed document stated in part: "The court does not
warrant the medical efficiency of the substance provided" and added
the order would "remain in effect for 30 days or as long as supplies
last, which ever first occurs."

Kelly's attorney, Jodea Foster of Chico, told the Enterprise-Record
he was not led to believe at the time the proposed court order was
anything but real.

On Wednesday, Lamb told Foster and Assistant District Attorney Helen
Harberts that Michael Kelly had not shown himself during his trial to
be the lawful owner of the confiscated marijuana, and no members of
the purported collective had filed petitions with the court asking
for its return.

In any event, the judge told the lawyers that he believed the amount
being grown "was in excess of the needs" of the Concow group and thus
"was not subject to return."