L.B. TANGLED IN MURKY MARIJUANA LAW

Drugs: Officials' mixed approach to Prop 215 leaves many who use medicinal
pot not knowing where they stand.

LONG BEACH -- Sipping coffee and thumbing through a 2-inch-thick stack of
documents, 69-year-old Nathan Smiley looks as though he could be planning
his retirement.

But the documents have nothing to do with 401(k)s or IRAs. They are court
transcripts and legal motions left over from his trial involving felony
marijuana charges in Long Beach Superior Court.

Two years ago, the white-haired Fontana man who walks with a limp was
arrested and charged with cultivating 19 marijuana plants in a rental
apartment in Long Beach. He says he had hoped marijuana would dull the pain
of his ailing hip, so he acquired a doctor's recommendation to try it.

Local prosecutors said they did not believe Smiley fit the description of a
legitimate patient under Proposition 215, the 1996 state ballot initiative
that legalized medicinal marijuana in limited circumstances.

They still don't.

After Smiley's trial ended in a hung jury, Long Beach Judge Richard Romero
dismissed the case last month "in the interest of justice.' But city
prosecutors convinced he was cultivating the drug illegally refiled the case
last week.

Whether or not Smiley is an ideal spokesman for medicinal marijuana, one
thing is certain: He has been pulled into one of the state's more
contentious and confusing areas of law.

Rife with ambiguity, Prop 215 still invokes a tangle of mixed messages from
city, state and federal agencies. And while police, prosecutors and judges
try to sort it out, people such as Nathan Smiley are left wondering where
they stand.

"My hindsight tells me that there was no attempt by the state of California,
county of Los Angeles (or) city of Long Beach to establish any procedures,
rules, issue any permits, give any permission, or in any way supervise the
raising of medical marijuana,' Smiley says. "But instead, they treat sick
people as if they were some kind of drug addicts.'

Now going into its sixth year on the books, Prop 215 is still a procedural
and jurisdictional nightmare. California's top prosecutor, Attorney General
Bill Lockyer, has given little guidance to implementing the vaguely worded
law, so local authorities must interpret the language for themselves. And
many agencies including the Los Angeles district attorney's office have
refused to draft policies that would put prosecutors on the same page and
take a stand on some of the law's murkier issues.

Some cities have taken up the cause themselves. San Diego recently became
the latest city in the state to issue proactive guidelines on Prop 215.
Among other things, city officials ruled on the amount of pot they deemed
suitable for a patient to possess: up to 1 pound.

Meanwhile, the federal government has begun to throw its weight around.
Because pot is still strictly off limits under federal law, the U.S.
Attorney has the authority to bring federal charges when the state can't or
won't. Most recently, that office won a possession case against
self-proclaimed "Guru of Ganja' Ed Rosenthal, who maintains he was growing
cannabis in San Francisco for the sick and dying.

Case By Case

Long Beach police say they abide by the law both its letter and its spirit
and they evaluate marijuana users on a "case-by-case basis.'

What that means is that officers look over suspects, eyeball their marijuana
and scan their doctors' notes the closest thing to a prescription patients
can get before deciding whether the suspects are more likely patients or
recreational users.

To activists, this procedure amounts to inappropriate "medical
determinations' by police officers. To police, it's the only way to enforce
a law with such obvious open-ended questions.

Like all other cases, officers make arrests based on what they believe the
evidence shows, says Officer Greg Schirmer, a spokesman for the Long Beach
Police Department. If police arrest a legitimate patient, he says, that will
get sorted out in court.

"As far as enforcement,' Schirmer says, Prop 215 "doesn't give (patients)
immunity from arrest, but it gives them limited immunity in a trial.'

In other words, the doctor's note may be raised as a defense at trial, but
it doesn't protect a person from arrest. If it did, every user with the
wherewithal to forge a physician's signature could argue immunity.

LBPD keeps no records on how many defendants have claimed Prop 215
exemptions, and the district attorney also was unable to track those cases.
But in the past two years, at least four cases were filed in Long Beach.

David Zink, an arthritis sufferer, was arrested in August 2000 after police
seized 30 cannabis plants from his garden. He was charged with marijuana
cultivation, possession for sale and manufacturing a controlled substance,
but prosecutors dismissed the case three months later for lack of evidence.

Smiley was arrested in February 2001 and charged with cultivation after
police found 19 plants in an apartment he had rented. His jury was hung 7 to
5 in favor of guilty, and a judge dismissed the case over the prosecution's
objection. The case has since been refiled.

Joseph Czuba said he was using marijuana to combat the effects of heart
palpitations and stomach ulcers when he was arrested in May 2001 and charged
with cultivation and sale of marijuana. A judge dismissed his case in April
2002 based on a defense motion.

Marie Rutledge, a homeless woman who said she suffered from asthma, muscle
spasms and migraines, was arrested in May 2001 and charged with possession
and cultivation of marijuana, as well as public intoxication. Police found
two plants, as well as dried marijuana, in her car. She was convicted at
trial, but an appellate court recently overturned the conviction.

Allen Fields, head deputy of the Los Angeles district attorney's Long Beach
branch, says his prosecutors evaluate Prop 215 cases as they do any other
case. They look at police reports, inquire into the validity of the doctors'
notes and depend on witnesses to paint a picture of the individual's
circumstances.

"We only file those cases where we think it's a bogus issue in terms of
medical marijuana,' Fields says, "or we think somebody is cultivating for
the purpose of sale.'

Fields couldn't say whether he'd ever declined to file a case in which a
Prop 215 defense had been raised to police, but he said he respects the law
as written and enforces it as written.

"We look at all the factors of a case, and we try to do what's fair, and we
try to follow the law,' he says. "Like anything in law, it's a question of
interpretation.'

Judge Romero, who dismissed the Smiley case, says judges operate under a
similar philosophy. Declining to comment on the Smiley case specifically,
Romero says it's not uncommon for laws to allow a fair bit of wiggle room.
Prop 215 cases are no different, he says.

Fields' boss, District Attorney Steve Cooley, once considered issuing
uniform enforcement guidelines to his prosecutors about Prop 215 cases. Two
years ago, he said through a spokeswoman that he was working to draft
written guidelines that would "put prosecutors on the same page.' The office
created several working groups to look at the issue, but the plan for a
formal policy has since been abandoned.

Chief Deputy District Attorney Curt Livesay says any new Prop 215 guidelines
would simply instruct prosecutors to follow the law, exercise discretion and
treat these cases like any other.

State Law

According to the California Penal Code, the Compassionate Use Act of 1996
acts in the following way:

"To ensure that seriously ill Californians have the right to obtain and use
marijuana for medical purposes where that medical use is deemed appropriate
and has been recommended by a physician who has determined that the person's
health would benefit from the use of marijuana in the treatment of cancer,
anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine or
any other illness for which marijuana provides relief.'

It goes on to state that a patient or a patient's caregiver shall be exempt
from possession and cultivation charges.

In a landmark state Supreme Court decision last summer, the burden of proof
in these cases was shifted from the defendant to prosecutors. Now,
defendants must only provide "reasonable doubt' that they had legitimate
medical reasons for using cannabis, rather than proving that point by a
"preponderance of the evidence.'

But federal magistrates have made it clear that Prop 215 flies in the face
of federal law.

In May 2001, the U.S. Supreme Court held that the Oakland Cannabis Buyers
Cooperative had no medical-necessity defense to manufacture and distribute
marijuana. In addition, the court noted that marijuana was still considered
a schedule 1 drug with no accepted medical use.

The decision opened the door to many U.S. Drug Enforcement Agency
investigations into California medicinal-marijuana clubs, set up to dispense
marijuana to patients with doctors' notes. According to the Drug Policy
Alliance, a national organization supporting drug-policy reform, the U.S.
Attorney has filed at least 30 such cases, mainly in Northern California.

On Jan. 31, Rosenthal was convicted of felony drug possession after a San
Francisco jury found he had grown more than 100 cannabis plants. He now
faces five to 40 years in federal prison. The jury was not allowed to
consider Rosenthal's medicinal-marijuana defense.

To Long Beach patients' rights advocate Bill Britt, who uses marijuana to
counter the effects of epilepsy and post-polio syndrome, the Rosenthal case
is the most recent example of repeated violations of states rights.

"Unlike San Francisco,' he says, "we don't have to worry about the federal
government ... down here because our own law enforcement are ignoring the
law just as much as the federal government.'

Patients Scared

Patients here say they continue to live in fear.

"Potential patients are terrified,' Britt says. "Nobody can grow. Every
patient I know is looking for a place to grow. Everyone who does grow is
getting arrested.'

Attorney J. David Nick, who has handled hundreds of Prop 215 cases, agrees.
He says many of his clients are trying to live their lives legally and are
astonished when they find themselves the subject of criminal investigations.

Prosecutors "need to know the pain they've caused individuals who, in their
hearts, waited for this law to pass in order to be able to come out of the
closet and use this in a legal manner,' he says, adding that the
prosecutions often put undue financial burdens on individuals and taxpayers
as well.

Some cities, including San Diego, have developed task forces to enact Prop
215. Some have suggested creating registries or ID cards for
medicinal-marijuana patients, and giving them more specific parameters in
which to use marijuana such as how many plants are suitable and who
classifies as a "caregiver.'

Activist Diana Lejins contends Long Beach should follow suit.

Most "of the large cities in this state now all have some type of task force
or committee in place that is addressing this issue,' she says. "What we
need are guidelines.'