Pubdate: Tue, 01 Feb 2011
Source: Record, The (Stockton, CA)
Copyright: 2011 The Record
Author: Dana M. Nichols


Man Sold Pot to Card Holder

SAN ANDREAS - Prosecutors have dropped drug dealing, cultivation and
possession charges against a medical marijuana advocate in a case in
which a Calaveras County sheriff's deputy used a legitimate medical
marijuana card to induce the man to sell the drug.

Court records show that Jay R. Smith, 37, pleaded no contest Friday to
a single charge of aiding and abetting another person to commit a felony.

Smith was sentenced to pay a $160 fine and serve 90 days in jail but
will not be subject to probation. The plea bargain means he will be
able to continue his work advocating for medical marijuana patients,
Smith said.

Smith's arrest Jan. 4, 2010, prompted protests by medical marijuana
users and providers. At the time, Smith was operating K Care
Collective, a medical marijuana vendor.

Smith and court statements by law enforcement officers agree on the
basic details of what happened: Calaveras County Sheriff's Deputy
Steve Avila posed as a legitimate medical marijuana user named Robert
Shaffer of Ione and contacted Smith seeking to buy marijuana.

Avila had gained possession of Shaffer's medical marijuana
identification card in late 2009 during an earlier drug case against

Smith said that when he called Shaffer's doctor, Dr. Philip A. Denney
of Carmichael, the card proved to be legitimate. So he agreed to sell
marijuana to Avila, not knowing that the officer had borrowed
Shaffer's identity.

Both Denney and Shaffer both later objected that they had not
consented to Avila's use of the card and did not know of Avila's plans.

Smith reportedly delivered the marijuana to the man he thought was
Shaffer in the Valley Oaks Center parking lot in Valley Springs.

Then-Sheriff Dennis Downum said meeting someone in a parking lot for a
sale is not within the guidelines for legal medical marijuana.

Prosecutors agreed and pressed the case.

Smith said he pleaded no contest to save money. He said he had already
spent $45,000 on attorneys, and going to trial would cost an
additional $12,000, far more than the $160 fine in the plea bargain.

Court documents did not indicate who the other person was who
committed a felony allegedly aided by Smith.

"The charge is a trade-off. There was nothing discussed in there about
who that person was. And Shaffer had nothing to do with my case," Smith 

Deputy District Attorney Seth Matthews, the prosecutor who signed the
plea agreement, was out of the office Monday afternoon and unavailable
for comment.
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