A state appellate court in Sacramento has ruled that “concentrated cannabis” qualifies as marijuana for purposes of medical use.
A unanimous three-justice panel of the 3rd District Court of Appeal disagreed this week with an earlier ruling by El Dorado Superior Court Judge James R. Wagoner and reversed the judge’s decision that a medical marijuana patient violated probation by possessing concentrated cannabis.
Sean Patrick Mulcrevy, of Cameron Park, was charged in 2013 with unlawful possession of concentrated cannabis, a misdemeanor, and was alleged to have violated his probation because of his failure “to obey all laws.”
Wagoner reviewed the existing legal authority indicating that concentrated cannabis is covered by California’s Compassionate Use Act, or CUA, the 1996 voter initiative approving medical use of marijuana with a doctor’s recommendation. But Wagoner rejected the authority as “unsound” and ruled that “the (CUA) does not apply to concentrated cannabis” because the act does not define marijuana, refer to concentrated cannabis or incorporate statutory definitions of either term.
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According to the state’s Health & Safety Code, concentrated cannabis is “the separated resin, whether crude or purified, obtained from marijuana.”
A probation search of Mulcrevy by a sheriff’s deputy turned up 0.16 grams of “honey oil” – a form of concentrated cannabis, 0.05 grams of “dabs” – another form of concentrated cannabis, and 3.33 grams of marijuana.
Mulcrevy, 22, had a physician’s recommendation for use of marijuana and its active ingredient, THC, to treat migraine headaches and acid reflux. He had purchased the marijuana, dabs and honey oil in a medical marijuana store.
Wagoner extended Mulcrevy’s probation by two years, but stayed execution of the sentence pending appeal.
In an opinion issued Wednesday, the justices concluded that Wagoner violated Mulcrevy’s right to defend himself when the judge prevented Mulcrevy from presenting a defense based on the CUA.
Concentrated cannabis “is covered by the CUA, and there is insufficient evidence (Mulcrevy) violated his probation in light of that conclusion,” the justices stated in their unpublished opinion. “Therefore, we also conclude the court’s error was not harmless and we reverse the trial court’s judgment.”
The opinion was authored by Associate Justice M. Kathleen Butz, with the concurrences of Presiding Justice Vance W. Raye and Associate Justice Cole Blease.
The CUA does not define marijuana or concentrated cannabis, the justices noted. But, they added, the terms had already been defined in other sections of the law when the CUA was approved by voters 18 years ago. Marijuana was defined as “all parts of the plant Cannabis sativa L.,whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.” Hemp was excluded from the definition.
Cannabis sativa L. is the name conferred on the plant in 1753 by Carl Linnaeus, a Swedish scientist who laid the foundation for how groups of biological organisms are classified.
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