Pubdate: Sat, 19 May 2007
Source: Orange County Weekly (CA)
Copyright: 2007 O.C. Weekly Media, Inc.
Author: Nick Schou


Ten Years After California Legalized Medical Marijuana, OC's War on 
Cannabis Continues

All Richard "Shaggy" Quell and his girlfriend wanted to do was shower
affection on their wounded cat, Kushy. The pet had just survived an
operation after losing a vicious fight with a fellow feline. When they
got the call on April 17 that Kushy was ready to go home, they rushed
to the veterinarian and returned to their Anaheim apartment at about 7
p.m. Waiting for Quell in the parking lot of his apartment complex was
a uniformed Anaheim police officer.

Tipped off by a fellow cop, who smelled something funny when he
happened to be at the complex on another call, the officer asked if
Quell was growing marijuana in his apartment.

"I said, 'Yes, but legally,'" Quell says he told the cop. "I'm working
for one of the compassionate clubs in Hollywood, Kushmart. I have 70
caregiver slips. That gives me permission to grow six plants per
patient, and I have less than 150 plants."

Although the cop didn't have a search warrant, Shaggy says he invited
him in for a tour of his apartment-and his garage, where the officer
discovered 138 flowering plants of high-grade marijuana. Before long,
several other cops were taking the tour. Shaggy says the officers
quickly determined that all of the pot was in his locked garage and
were impressed with his paperwork stating he was growing cannabis for
legitimate medical-marijuana patients under California's 1996
Compassionate Use Act, Proposition 215.

In January 2004, the California Legislature passed SB420-aptly named
given that 420 is pothead code for getting high-stating that each
medical-marijuana patient is allowed to grow, or have grown for them
by a caregiver, up to six flowering cannabis plants. Given that Shaggy
had 70 patient slips and fewer than half of the 420 total plants those
patients were allowed to possess under SB420, he figured he was well
within the limits of the law.

A few hours later, one of the cops called the Orange County district
attorney's office. After a brief conversation, the officer told Quell
their orders were to confiscate his pot plants, growing lights,
patient slips, and even his own doctor's note saying he was allowed to
smoke cannabis. The good news: They were going to leave without
arresting him.

"I could tell the officers didn't want to be there," Quell says. "One
of them said he believed I didn't think I was breaking the law, and
that I was being extremely cooperative. He said that was going in his

The officer in question, Sergeant Tim Miller, supervisor of the
Anaheim Police Department's street narcotics unit, refused to comment
on the incident because the case is still ongoing. He said that
California's health and safety code allows "qualified caregivers" to
possess up to eight ounces of marijuana or six flowering plants per
patient. "Where you run into trouble is whether someone meets the
definition of a caregiver," he says, adding that the law defines one
as "an individual who has consistently assumed responsibility for
housing, health and safety of a patient."

The cops left Quell with 138 buckets full of dirt in his garage and
the knowledge that if the DA's office wanted to file charges against
him, he'd be receiving his court date in the mail. The pot plants
represented an entire crop of medicine that Quell was just weeks away
from delivering to Kushmart, the Hollywood club that employed him and
paid his rent. Now he has no job and no cash-and he says his
girlfriend is about to leave him.

"My whole world is upside-down, he says, adding that he's desperately
seeking legal representation. "It's been three weeks, and I haven't
heard anything from the DA's office. That's why I'm so freaked-out.
It's the fact that I don't know what's going on. I've had no contact
from them. That's the scariest thing to me: The fact that I don't
know. This has been the worst month of my life."

On the same day Anaheim cops took Quell's pot, the Orange County Board
of Supervisors held a hearing on whether to implement a voluntary
statewide identification-card program set forth by SB420. The ID cards
would supposedly protect legitimate patients from being arrested or
having their medicine confiscated by cops. At the hearing, dozens of
medical-marijuana advocates urged the board to vote in favor of
Supervisor Chris Norby's resolution to initiate the ID card program,
which 33 of California's 58 counties have already done.

Norby says he's pushing for ID cards for both legal and humanitarian
reasons. "SB420 requires counties to do it," he says. "And we're doing
it for humanitarian reasons because to deny somebody something that
would relieve their agony and pain is cruel." Norby also hopes that
implementing the ID-card program will help build support for changing
federal law to support the medical use of marijuana. "If we pass this
now, we will help lead the federal government to the right policy," he
says. "This will push the feds to a more enlightened position on this
and allow people the full panoply of God's gifts to relieve their suffering."

Ultimately, the board voted 4-1 to study Norby's proposal for the next
90 days. By the time that happened, however, both the OC Sheriff's
Department and the DA's office had announced they would continue
confiscating cannabis from Prop. 215 patients no matter what the
supervisors had to say about it.

Assistant Sheriff Steve Bishop, a spokesman for Sheriff Mike Carona,
told the supes his department would ignore ID cards and continue its
policy of confiscating cannabis and doctor's prescriptions and
forwarding them as evidence to the DA's office for prosecution. DA
Tony Rackauckas showed up in person to denounce medical-marijuana
users as lawbreakers who want to "escape from the realities of life
and get high for a while."

Some OC medical-marijuana activists actually agree with Rackauckas and
Carona about the wisdom of implementing the voluntary statewide
ID-card program-but for entirely different reasons. "They're not
making child molesters get cards, so why should we?" argues Andy
Kinnon, a medical-marijuana activist and pastor with the Northern
Lights Church in south Orange County. "A lot of people like the cards
because it gives you the recognition you need, but others feel it will
be turned over the federal government. And it's not going to stop the
cops from confiscating cannabis. This whole thing has gone too far.
It's harassment."

In the past few years, dozens of cannabis clubs from San Francisco to
Los Angeles have been raided by federal agents who confiscated their
crops. Orange County also has roughly 20 dispensaries and co-ops, all
of which are listed on the CANORML (California National Organization
for the Reform of Marijuana Laws) website,, and
several of which boast delivery services. But many medical-marijuana
activists, including Kinnon, denounce pot dispensaries, especially the
high-profile LA clubs, for taking advantage of Prop. 215 by selling
expensive cannabis. "I see them as 'pot-repreneurs,'" Kinnon says,
adding that his organization only advises patients on establishing
co-ops. "I'm against all these dispensaries popping up all over the

As the bizarre showdown between OC's two top cops and the elected
officials who pay their salaries suggests, one thing is clear: Quell
isn't the only Orange County resident who is confused about what's
legal and what isn't when it comes to medical marijuana. Federal law
prohibits the possession, transportation, cultivation and use of
medical marijuana. And state law-both Prop. 215 and SB420-supposedly
protects Californians with doctor's notes.

But that only matters if local officials, who aren't sworn to enforce
federal law, are willing to enforce state law. And in Orange County
perhaps more than anywhere else in California, local officials have
made it clear that state laws they don't agree with will not interfere
with their righteous war on weed. Which means that, more than a decade
after California voters overwhelmingly approved the medical use of
marijuana, patients and caregivers who think they are following the
law often find themselves on the wrong side of it.

OC medical-marijuana patients who spoke to the Weekly say they're
stuck in a Catch-22 of chronic proportions. If you can prove you're
covered by Prop. 215 and are obeying the limits of cannabis possession
outlined in SB420, it's unlikely you'll go to jail, they say. But if
you're unlucky enough to be pulled over or otherwise confronted by
police or sheriff's deputies in Orange County, and you have pot and a
doctor's note with you, chances are you can kiss your cannabis goodbye.

If you're 20 years old, live in Laguna Hills, wear a Mohawk haircut
and have medical marijuana in your car, it's probably not wise to
drive around town with expired registration tags on your rear license
plate. Joel Cymerint learned that lesson on March 10, the same day a
sheriff's deputy pulled him over. Since Cymerint had marijuana in his
car, he says he was reaching for his doctor's note when the deputy
yanked him out of the car and forced him to the pavement.

"He really hassled me," says Cymerint, who smokes cannabis with a
vaporizer to relieve asthma. "His excuse is he thought I was going for
a gun. He grabbed my crotch two or three times and asked me if I was
hiding anything in my rectum. I sat on the curb, told him where my
medicine was in the car, and he took it, put me under arrest and wrote
me a ticket."

Although Cymerint insists he only had two grams of high-grade pot in
his car, the deputy wrote him a ticket for possessing concentrated
cannabis, which is cop-speak for what most people call hashish or
liquefied pot resin. Court records show the deputy also charged
Cymerint with possession of a controlled substance without a
prescription, possession and use of false evidence of age, and failure
to prove current registration for his car.

"I've never been in trouble before," he says. "I've had a doctor's
recommendation for three years, and I've seen three different doctors,
and they all agree cannabis is good for my asthma. I use a regular
inhaler, too, but I don't like it because it increases my heart rate
and gives me anxiety."

At his arraignment, Cymerint pleaded not guilty to all charges and
showed a court commissioner his doctor's note. The commissioner told
him to choose a public defender and show up in court in a few weeks.
"When I showed him my paperwork, the commissioner was very
respectful," Cymerint says. "The deputy treated me like dirt."

David Lucas, who says he smokes cannabis to treat post-traumatic
stress disorder but refused to elaborate, has twice lost his pot after
being pulled over. A few years ago, Newport Beach police confiscated
his marijuana after citing him for failing to make a complete stop on
a street on Balboa Island. He showed up in court to contest the
ticket, and the prosecutors dropped the case. He says the same thing
happened on Oct. 25, 2006, when Huntington Beach police pulled him
over and confiscated a bag of marijuana and his pipe. Lucas claims
police falsely alleged the pot weighed more than an ounce.

"I gave them my medical slip," Lucas says. "And they said it's not
worth the paper it's written on-there's no such thing as medical
marijuana." After several court hearings, prosecutors dropped the
charges. Superior Court records show the case was closed without any
charges filed, but Lucas says he never got his marijuana back. "It's
like we live in Russia," he says. "It's almost communism. We have
laws, but they don't follow them or respect them."

Former forklift operator Brian Castillo Garces probably wishes all he
had to worry about was getting his pot back. He says he smokes
cannabis to treat injuries-a broken left foot and fractured right
hand-he suffered during a workplace accident in August 2006. On Oct.
18, police showed up at the Mission Viejo condominium he shared with
five other people. "The search warrant was for cocaine and for someone
who didn't live there," Garces says. "I had seven plants growing in
the house and a half-ounce in my safe, and they made me open that and
confiscated everything."

Police also took Garces' doctor's note, but when they tried to confirm
it, the doctor's office said he wasn't a patient, Garces says.
Apparently, police erroneously told the doctor his last name was
Castillo, not Garces. When Garces showed up in court, deputies
arrested him for cultivation and possession of marijuana with the
intent to sell. He's currently awaiting trial. "They're pretty serious
charges," he says. "It's all a big-ass misunderstanding."

Sue Clemmons is now a convicted felon thanks to her misunderstanding
of Prop. 215 and SB420. Both Clemmons and her husband are ex-postal
workers. She says she smokes marijuana to treat arthritis, a condition
she developed after sorting mail for 33 years. On Sept. 6, 2006, she,
her husband and 20-year-old son, were all arrested by Santa Ana cops
for growing marijuana in their back yard. Apparently, a next-door
neighbor, who happened to be a parole officer, saw the plants, which
numbered 17. That would have been legal under SB420, which allows each
patient with a doctor's note to grow up to six flowering plants, but
only Clemmons-and not her husband or son-had a doctor's note.

After all three Clemmonses were hauled off to jail, strip-searched and
placed in holding cells for several hours, they were released on bail
because none of them had any prior arrests. Clemmons says she
witnessed a female deputy yank an inmate by her hair and lead her out
of the holding cell for laughing out loud. Each pled guilty to
cultivating marijuana to avoid a jury trial and the possibility of
spending three years in prison.

"I never thought I'd be retired and turned into a senior delinquent,"
Clemmons says. "If people knew how they treated people in the OC Jail,
they wouldn't believe it. That's why I took a deal. I didn't want to
go back."

Sheriff's officials failed to respond to an interview request by
presstime. DA spokeswoman Susan Schroeder acknowledged that there is a
lot of confusion when it comes to medical marijuana. She refused to
comment on specific cases, but said her office follows the law as set
by Prop. 215. "We take each case on an individual basis and try to
determine if there's a valid legal defense," she said. "We're not
taking sides. We're just following the law."

Nobody personifies the confusion over medical marijuana in Orange
County more than Benny Toves "Rasta Ben" Guerrero, a Native American
whose Guamanian ancestors called themselves the Taotao Tano, or People
of the Land. Guerrero, who lives in Buena Park, is also a Rastafarian
with dreadlocks that hang a few inches from the ground. Like all
disciples of Jah, he views cannabis as a sacrament. He says he has the
biblical quotations to prove it.

"Marijuana is the herb-bearing seed for which it shall be your meat or
food in Genesis Chapter 1, verses 11 and 29," Guerrero says. "And in
Exodus 23 and 30, it gives the recipe for the holy anointing oil,
mistranslated from Hebrew to Greek as 'sweet cane.' Cannabis indica is
sweet cane in the sense that its stems are hollow and it is definitely
fragrant. It's also in Revelations Chapter 22, verse 2: It is the tree
of life of which the leaves shall be the healing of all nations."

On New Year's Day 1991, Guerrero, who had just flown from Los Angeles
to Guam to visit family members, walked off an airplane at A.B. Won
Pat Guam International Airport. U.S. Customs officials searched his
luggage and discovered a bag of cannabis. They arrested him for
importing marijuana, and Guerrero spent the next 15 days in jail.
After being convicted of the charges, he spent the following five
years under house arrest in Guam. Guerrero challenged his conviction,
saying that as a Rastafarian of Guamanian descent, his arrest violated
the U.S. Constitution's protection of Native American religious
freedom, as well as an 1898 treaty in which the Spanish Empire ceded
Guam to the United States.

In 2000, a high court in Guam reversed Guerrero's conviction, ruling
that his arrest violated "the defendant's right to free exercise of
his religion as protected by the United States Constitution and the
Organic Act of Guam and the Religious Freedom Restoration Act of
1993." Four years later, the court dismissed his case. Guerrero, who
routinely travels to Guam and the Caribbean for family visits and
Rastafarian conferences, says he always carries cannabis with him, as
it is an obligation of his church. He never has any problems. But in
Orange County, he says, despite his federal protection and the fact
that he has a doctor's note, he's still treated like an outlaw.

"I had a fire in my house in June 2002," Guerrero recalls. "The fire
department came through and found processed herb in a room and
cultivating plants in the back yard. They called the police, and they
arrested me that night." The DA's office later dismissed the case
because, Guerrero says, the lead investigator had resigned shortly
after he was arrested. Prosecutors preferred to drop the charges
rather than give Guerrero's attorney an explanation.

The city of Buena Park charged Guerrero with several building-code
violations relating to his house fire. On March 1, a jury convicted
him. He's currently appealing the conviction, arguing the city is
discriminating against him because of his religious beliefs.

Although he doesn't share Guerrero's federal right to smoke pot, Lake
Forest resident and medical-marijuana patient Josue Lopez can
certainly share his frustration with Orange County law enforcement. In
March 2005, he says, he was staying with some people he thought were
his friends when they "jumped" him. His "friends" were after the three
ounces of marijuana Lopez had in his backpack. Lopez called the
police, who interviewed the suspects but said they didn't have enough
evidence to press charges. Lopez got angry and started calling the
DA's office, demanding to speak to Orange County's top prosecutor,
Tony Rackauckas.

"I started calling the DA's office and told them off," Lopez says. "I
kept calling every 30 minutes, pestering him until I got a hold of
him. I told Rackauckas, 'You are not looking out for the best interest
of the people. You are just about getting rich, and maybe one day,
someone will get in there that knows what they are doing.'" Lopez says
Rackauckas informed him that his office felt it couldn't obtain a
favorable jury verdict.

Lopez grew to regret harassing Rackauckas on the telephone. On Aug. 4,
2005, sheriff's detectives arrested Lopez for cultivating and
possessing marijuana with the intent to sell. While Lopez claims he
was a "caregiver" to six people, the DA's office evidently
thought-given that he was not primarily responsible for housing,
feeding and clothing the patients he was supplying with cannabis-that
he wasn't a caregiver under the law. Facing three years in prison,
Lopez ultimately took a deal that put him in jail for six months. His
probation officer allows him to smoke marijuana to alleviate pain and
nausea from a hernia and back injuries from riding dirt bikes, but he
worries he'll be arrested again.

"We are like apples in the orchard," Lopez says. "And the cops are
there to take apples. We're always there, always around just to be
picked off. We're job security for them. If their numbers are down,
they can just bust people for marijuana."

In Orange County, police haven't limited themselves to busting
cannabis patients; they've also gone to extraordinary lengths in
trying to undermine medical-marijuana activists. Just ask Dr. Philip
Denny, one of the most prominent advocates of medical marijuana in
California. For the past eight years, Denny has worked primarily out
of his northern California offices in Redding and Sacramento, but in
January 2004, he opened a third location in Lake Forest. One day, a
man named John O'Brien visited his Lake Forest office and said he
worked in the pharmaceutical industry and had a plan to treat
chemotherapy patients with cannabis inhaled through vaporizers to
reduce the harmful effects of the smoke.

"He was interested in what I thought about the idea and whether I had
patients that might benefit from that sort of thing," Denny recalls.
"He never became my patient, but we talked once or twice."

On Feb. 26, 2006, a man identifying himself as James Grid visited
Denny's office, showing paperwork saying he suffered from a chronic
sinus condition. Based on the previous diagnosis, Denny provided Grid
with a physician's note stating that cannabis could help alleviate his
condition. But Grid's paperwork turned out to be fake, and Grid turned
out to be a Newport Beach narcotics detective named John Pallas.
Pallas, in fact, was working with the Orange County Sheriff's
Department in a sting operation against O'Brien, the medical-marijuana

According to a police report filed by Pallas, O'Brien had offered to
sell him marijuana if he received a physician's note from Denny.
O'Brien followed up on his offer, and Pallas arrested him for selling

After Denny discovered that Pallas had infiltrated his office with
phony paperwork, he wrote Pallas a personal letter. "Despite signing a
document stating that all the information you provided was true under
penalty of perjury, you skillfully lied and falsified documents in
order to obtain a medical cannabis recommendation," Denny wrote.
"Under such circumstances, I must advise that your recommendation is
invalid because it was obtained by fraud."

Denny says police have used similar tactics in northern California,
but that in Orange County, law enforcement's undercover behavior is
matched by its public crusade against cannabis. "What these guys do is
emblematic of the Orange County sheriff's political position," Denny
says. "This sheriff and his drug-war minions are willing to use their
offices to further their own political agenda. But the genie is out of
the bottle. There is no way they can stuff it back in. The fact that
the DA, the sheriff or the Board of Supervisors opposes cannabis isn't
going to stop it. But the poor patients will be made to suffer and
[be] intimidated and threatened and jailed until it gets resolved, and
I think it's a shame."

Nobody in Orange County has paid a higher price in the war on medical
marijuana than Marvin Chavez, a cannabis user who suffers from a
debilitating spine disease called ankylosing spondilitis, for which he
wears a back brace. Along with David Herrick, a former cop and combat
medic who learned about the benefits of medical marijuana in Vietnam,
Chavez co-founded Orange County's first cannabis co-operative 10 years
ago, shortly after Prop. 215 became law.

After a year of making speeches at city council meetings-hardly the
favored tactic of an underground pot merchant-Chavez finally won a
license for his co-op from the city of Garden Grove. Tipped off by his
public appearances, the city's cops infiltrated his group by posing as
medical-marijuana patients and caregivers with what turned out to be
forged doctor's notes. The narcs convinced Chavez to accept small
donations to his co-op in return for baggies of pot. Prosecutors
charged Chavez and Herrick with several counts of selling marijuana.

During his 1998 trial, Orange County Superior Court Judge Thomas
Borris-who later crashed his car into a tree while driving
drunk-prohibited Chavez from mentioning Prop. 215. DA prosecutor Carl
Armbrust, a stern septuagenarian who advised chronically ill patients
to ditch their pot and drink scotch to relieve their pain, threatened
to arrest a member of Chavez's co-op who failed to appear in the
courtroom until he learned the man had just died of cancer. Not
permitted to consider the applicable state law, a jury ultimately
convicted Chavez of selling pot; Borris sentenced him to six years in

Herrick also was convicted of selling pot and sent to prison, but his
conviction was reversed in 1999, when an appeals court ruled that
Armburst had engaged in prosecutorial misconduct. The following year,
Chavez walked out of prison in northern California pending the outcome
of his appeal. That same day, he learned that Jack Schacter, a friend
and fellow co-op founder who had been forced to testify against him,
had just died of AIDS. Chavez re-formed the co-op, and not
surprisingly, he found himself in trouble again. On Sept. 6, 2001-just
five days before the worst terrorist attack on U.S. soil-Santa Ana
police raided his house and confiscated his cannabis plants. A few
months later, he lost his appeal and went back to state prison.

The experience hasn't dimmed Chavez's desire to see the day when local
enforcement officials such as Carona and Rackauckas start obeying the
law. He says he plans to give his defunct OC cannabis co-op a third
chance, despite the proven risks. "What's really upsetting is they are
not giving us a chance to work together," Chavez says. "They are just
flat-out saying, 'We will arrest you, intimidate you, throw you in
jail and turn your lives upside-down.' I've paid my dues. It's 2007
now, but wow, here we go again."
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