Pubdate: Sun, 08 Apr 2001
Source: Auburn Journal (CA)
Copyright: 2001 Auburn Journal
Author: Gus Thomson, Journal Staff Writer
Bookmark: (Kubby, Steve)


A Placer County Superior Court judge said Friday he wants to have a closer 
look at whether California's Proposition 36 could apply to Steve Kubby's 
sentence on drug charges.

Judge John Cosgrove considered a motion by Kubby to commute a 120-day jail 
sentence that had been imposed March 2 for misdemeanor convictions for 
possession of a magic mushroom stem and peyote buttons. He decided to hold 
a hearing April 27 on the potential of applying Prop. 36 to Kubby's case.

"It may cause some modification," Cosgrove said. "I think it deserves a look."

Passed last year by California voters, Prop. 36 mandates treatment instead 
of jail time for the first two convictions on drug possession charges. At 
sentencing, Cosgrove had denied a motion by Defense Attorney Carol Hagin to 
delay sentencing until after July 1, when the proposition takes effect.

Kubby said he can't afford home monitoring  the alternative to 120 days in 
the Placer County Jail. And he said that if he did serve the jail sentence, 
that he feared for his life.

A hearing date was set for 1:30 p.m. April 27 in Cosgrove's court.

Kubby was tried last year on possession-of-marijuana-for-sale charges 
connected with a Jan. 19, 1999, raid on his Olympic Valley home that netted 
265 pot plants. He and his wife had doctors' recommendations to use and 
grow marijuana under Proposition 215.

Cosgrove declared a mistrial after a jury deadlocked 11-1 in favor of 
acquittal. But Kubby was convicted on felony magic mushroom and peyote 
possession counts that Cosgrove reduced to misdemeanors at the sentencing.

Kubby described any jail time in Placer County as "a death sentence" 
because law enforcement officers and jailers consider his use of marijuana 
as medicine to keep him alive a "fraud." Kubby has been diagnosed with a 
rare form of adrenal cancer and testified pot has kept him from dying.

Kubby said it was unlikely he would get help from jail personnel if he told 
them he was having a stroke or heart attack.

Saying that the last two years of litigation have resulted in his own 
bankruptcy and a financial situation where he doesn't know whether his 
family will have food to eat by the end of the month, Kubby asked Cosgrove 
for "closure."

"I believe you have the key in your hand to end this nightmare," Kubby said.

Deputy District Attorney Chris Cattran told Cosgrove that the court doesn't 
have jurisdiction to modify probation unless there is a change in 

"The facts are still the same as they were at a rather extensive sentencing 
hearing," Cattran said. He also argued that Prop. 36 has no bearing on the 
case because charges were filed in January 1999 and proceedings were 
delayed mostly by the defense.
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