Pubdate: Fri, 16 May 2014
Source: Press Democrat, The (Santa Rosa, CA)
Copyright: 2014 The Press Democrat
Author: Glenda Anderson

Mendocino County's Payment Program for Marijuana Defendants Under


A unique Mendocino County program aimed at reducing court backlogs by
offering marijuana defendants lesser criminal charges in exchange for
sizable restitution payments is at the center of a growing debate over
its fairness and legality.

The program has piqued the interest of a federal grand jury, which is
investigating the $3.7 million in payments generated from defendants
to local law enforcement agencies since District Attorney David Eyster
created the program soon after taking office in 2011, according to a
grand jury subpoena recently leaked to The Press Democrat.

Critics say the program, which some dub the "Mendo Shakedown," looks
like extortion and that it creates the appearance of an unequal
justice system.

"To put it bluntly, it looks like a criminal defendant charged with
serious conduct can simply buy a misdemeanor disposition if he gets
caught and has the money set aside to cover for that contingency,"
Mendocino County Judge Clay Brennan said last year during a Fort Bragg
court hearing on one of the program's plea agreements.

Others with concerns about the program include attorneys, law
enforcement officers and medical marijuana advocates.

Supporters contend the program is a creative and successful way to
reduce the logjam of marijuana cases caused by confusing and
conflicting marijuana laws while compensating police agencies for
costs associated with enforcing those laws.

"I think the way the district attorney has utilized the 11470 program
is brilliant," said Mendocino County Supervisor John McCowen,
referencing state Health and Safety Code Section 11470.2, the
program's official name, although it is significantly different than
the original code section. Defense attorneys, a retired state senator
and the county's sheriff are among the program's defenders.

Eyster is the only district attorney in California known to be
operating such a program, which he contends is allowed within state

He said he created the program by applying welfare law to the Health
and Safety Code, which was intended to provide funds to clean up
environmental degradation and toxic chemicals left behind by
methamphetamine and marijuana operations, according to state
legislative analyses of the bill.

In doing so, he made several changes that critics say are questionable
at best. They include requiring payments before, rather than after
convictions; eliminating a requirement to calculate actual costs
created by defendants' legal indiscretions; and allowing defendants to
plead to lesser criminal charges after they pay restitution fees that
have been as high as $100,000.

Eyster said his program is working well. It has reduced the time it
takes for marijuana cases to be resolved in Mendocino County to three
months from 15, according to the District Attorney's Office. Some 350
people have taken plea agreements under the program, the office reported.

Even critics agree it has done its intended job of relieving court

Under Eyster's program, defendants pay $50 for each marijuana plant
illegally in their possession, regardless of size, and $500 per pound
of processed pot, typically in exchange for a misdemeanor guilty plea
of possession of more than an ounce of marijuana, Eyster said.

Defendants are also subject

to having money and property seized under asset-forfeiture

In avoiding felony convictions, those defendants are able to keep
their guns.

Some of the people arrested with particularly large amounts of
marijuana - more than 2,000 pounds in one case - have pleaded guilty
under the program to a felony charge, but the felony is usually a
"wobbler" that can be reduced to a misdemeanor following a successful
probationary period, Eyster said. That charge also allows defendants
to serve their sentences in the local jail, rather than prison. In two
large cases, those sentences were suspended, according to court records.

Those who qualify for a misdemeanor but who can't pay may end up with

Mendocino County Supervisor John Pinches' daughter, Angela Pinches,
reportedly had about 100 mostly small marijuana plants when she was
arrested in 2011. Unable to raise the restitution money, she accepted
a plea agreement to a charge of maintaining a place where marijuana is
stored or manufactured - the same "wobbler" offered to Matthew Ryan
Anderson, a former Willits man who had more than 2,000 pounds of pot
and who paid $100,000 under the restitution program, according to
court and police reports. Both had their jail sentences suspended.

Those who stay out of trouble for a few years can petition to have
their misdemeanor charges wiped from their criminal records.

While on probation, they are allowed to continue growing marijuana if
they have a doctor's recommendation, they stay within the county's
25-plant limit and they purchase zip ties from the Sheriff's Office
that identify each of their plants as medicinal, Eyster said. The
Sheriff's Office currently charges $25 per zip tie, officials said.

Defendants may be eligible for the restitution program more than once,
Eyster said.

He said he doesn't know why the U.S. Attorney's Office is
investigating the program because no one there has contacted him. The
subpoena seeks financial documents that are held by the county
auditor's and sheriff's offices.

U.S. Attorney's officials did not respond to repeated requests from
The Press Democrat for information about the investigation.

District Attorney's Office spokesman Mike Geniella said the office
doesn't collect the money. Defendants pay the restitution to the
arresting agencies, which later pay a 5 percent administrative fee to
the District Attorney's Office.

Mendocino County Sheriff Tom Allman's office has collected a majority
of the program's revenue - $3.3 million - because it conducts a
majority of the marijuana raids. The money has been used for emergency
dispatch equipment, overtime and remodeling the Willits sheriff's 

While it's not been used to directly fund environmental cleanup,
Allman said it has paid for overtime for deputies to accompany
volunteer groups that have been going into public forests to clean up
after illegal marijuana gardens.

The three city police departments in the county said they plan to use
their restitution funds primarily to pay for their canine programs. Of
the police departments, Ukiah's has received the most restitution
funds - $261,960.

The Willits Police Department has collected $88,275 and the Fort Bragg
Police Department has collected $31,500. State Parks has received
$10,000; state Fish and Wildlife has received $1,400; the Coyote
Valley Police Department has received $750; and the county's Planning
and Building Department has received $4,000, according to the District
Attorney's Office.

Allman said he is supportive of the program and unconcerned by the
federal investigation, which included examinations of several other
marijuana-related revenue-generating programs from which his office

News of the federal inquiry into the other programs first surfaced
last year. However, the scope of the investigation, including the
restitution program, was not clear until recently, when the grand jury
subpoena came to light.

"I welcome a look," Allman said about the scrutiny of the restitution
program. "The more the federal agencies learn about how we're
complying with the law, the less I'm concerned they'll think we're
misinterpreting the law."

The money is being taken from people who abuse the system and given to
the agencies forced to deal with the problem, Allman said.

"I will hang my hat on that all day long," he said.

In addition to the 11470.2 restitution program, the federal subpoena
seeks information on millions of dollars the Sheriff's Office has
received from seizing assets from drug suspects; selling zip ties to
medical marijuana growers; and a program that formerly issued permits
for up to 99 plants. The permits were scrapped in early 2012 after
federal authorities threatened to sue the county. The program earned
more than $800,000 for the Sheriff's Office in its nearly two years of

The subpoena seeks all records on those programs since January

Former state Sen. Barry Keene, who three decades ago introduced the
legislation for Section 11470.2 of the state Health and Safety Code,
supports the restitution program.

He said Eyster's interpretation of the law is an innovative way to
deal with the explosion of marijuana cases, conflicting medical pot
laws and legislators' failure to straighten out the situation.

California voters legalized marijuana for medical use in 1996, but
recreational use is still outlawed. State and local laws implementing
the voter-approved ballot measure, Proposition 215, have conflicted
with federal law, which prohibits both medical and recreational use of
marijuana, often resulting in tension between federal law enforcement
agencies and their counterparts in California.

Keene said he contemplated whether Eyster's practice of reducing
sentences in exchange for payment derived from illegal marijuana is a
good or bad practice.

"I don't have a problem with that because it has been a long-standing
practice to require and allow people, in many cases, to pay fines to
stay out of jail," he said in an email response to questions about the

Critics of the program say it's detrimental to the court system to
create the appearance of a two-tiered justice system.

"The whole thing stinks. The guy who has money is not supposed to walk
just because he has the money," said Tom Johnson, a Ukiah attorney who
does not currently practice criminal law.

Most local criminal defense attorneys were reluctant to be interviewed
on the record about the program. Several said they have concerns but
did not want their names in print because they have active marijuana
cases and want to maintain a good working relationship with Eyster.

Ukiah attorney Don Lipmanson, one of the few willing to be interviewed
on the record, said the program has done a good job of alleviating
court congestion and said it works well for most of his clients
because it usually costs them less than going to trial. But some of
his clients struggle to find the money, borrowing from family and friends.

He'd like the program to be more flexible about considering individual
financial situations. "In principle, it's sound but it needs to be
entirely fair," he said.

Several defendants who've utilized the program also declined to
comment for print. But a few spoke on condition of anonymity.

"This 'pay to get out of jail' thing, it's a scam," said one man, who
was arrested in possession of a large amount of marijuana, an activity
he contends is legal. "It's extortion when you really boil it all down."

Mendocino County judges, including Brennan, declined to be

But Brennan made his concerns clear during a restitution hearing last
year, according to Mendocino County court documents.

He refused to give his approval to a $42,600 misdemeanor plea
agreement for a man caught with more than 800 small-to medium-sized
pot plants, a semiautomatic pistol and a rifle. The defendant, Kyle
Stornetta, a relative of a prominent local ranching family, also
illegally had 56 wild ducks and 18 wild steelhead trout in his
freezer, according to court documents.

Brennan said the restitution code being cited was designed to
supplement, not supplant, criminal enforcement. He also took issue
with the amount of the restitution, asking how it was determined. The
code, Brennan said, states that it be based on actual enforcement costs.

"No matter what a person's opinion of the wisdom of our marijuana
laws, the fact remains that they are the laws of the land and absent a
real nexus of this amount and actual eradication costs, my concern is
simply that with this number of plants involved, felonious conduct is
being reduced to a misdemeanor upon the payment of a substantial
amount of money," he said.

"It seems like it's extortion of defendants and it seems like it's
just buying a misdemeanor and I can't abide by that," Brennan said
during one of two hearings on the issue.

When the hearings failed to end in a resolution satisfactory to
Eyster, he sidestepped Brennan's objections by dismissing the case and
refiling the marijuana-related portion as a misdemeanor charge of
possessing more than an ounce of marijuana. Stornetta also pleaded
guilty to misdemeanor unlawful possession of wild steelhead, according
to court documents.

Eyster said all plea agreements are now approved in the main
courthouse in Ukiah, rather than in Brennan's Fort Bragg courtroom.

"I'm not going to deal with a judge who doesn't know what he's doing,"
Eyster said.

He said none of the other judges have refused to sign off on any of
his plea agreements.

Critics also contend the program is a disincentive for marijuana
growers to obey regulations and that it will bring even more illegal
pot growers to the county.

"I don't think they're hitting them where it hurts. I think it's
costing them less than their utility bill," and a lot less than if
they were paying income tax on their pot revenue, Johnson said.

It does hurt legitimate medical marijuana patients who have been
caught up in the legal system and who don't have a lot of money, said
medical marijuana advocate Pebbles Trippet.

"Eyster will more or less shake down" patients with the deals, she

Eyster said he does not file charges against legitimate medical
patients. He said he also cuts out people who are not eligible for the
program, including those whose marijuana growing operations break
environmental laws, steal water, use other people's property without
permission or are motivated purely by greed.

District attorneys in surrounding counties, including Sonoma, Marin,
Lake and Humboldt, have so far shunned the program.

"You want restitution, but you don't want to have a situation where
you are basically rewarding those people with money and punishing
those without," said Humboldt County District Attorney Paul Gallegos.

The grand jury investigation - a poorly kept secret among the legal
community - has only exacerbated skepticism of the program.

"It's controversial, to say the least," said Lake County District
Attorney Don Anderson.

Sonoma County District Attorney Jill Ravitch did not respond to
numerous calls and emails requesting comment. Chief Deputy District
Attorney Bud McMahon responded for her, saying his boss is no fan of
the program and the county has steered clear of it.

Eyster said he's concerned neither by the naysayers nor the federal

"It's a well-researched program, supported by state law and it is
functioning," Eyster said.

If the U.S. Attorney's Office is concerned about Mendocino County
prosecution practices, Eyster said federal officials should accept an
offer he made to hand over to them all marijuana prosecutions.

"That way, local prosecutors could focus on rape, murder, serious
crimes," he said.
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