Pubdate: Wed, 08 Sept 1999
Source: Los Angeles Times (CA)
Copyright: 1999 Los Angeles Times.
Contact:  (213) 237-4712
Author: Daniel Yi


Courts: Judges fail to rule on Prop. 215 claim of O.C. defendant that he
was distributing the drug only for medical purposes.

The first Orange County resident to try to use Proposition 215's
medicinal-marijuana provisions as a defense to drug sale charges has won an
appeals court reversal of his conviction.

But in ordering a new trial for David Lee Herrick, the state Court of
Appeal in Santa Ana did not address whether he had been improperly denied a
defense under Proposition 215.

The appellate court found instead that an Orange County prosecutor had
"engaged in willful misconduct" and misled the jury during his closing

Even so, medicinal-marijuana advocates hailed the decision.

"While it is unfortunate that the appellate court did not reach a decision
on the issue of medical marijuana, which has statewide implications, it is
nevertheless an important decision," said J. David Nick, a San Francisco
attorney who has represented medicinal-marijuana defendants.

The prosecutor, Deputy Dist. Atty. Carl Armbrust, has retired and could not
be reached for comment Tuesday. The district attorney's office called
Armbrust's action an "inadvertent mistake."

"The jury rightfully convicted Mr. Herrick of selling marijuana, and we
believe that he is guilty," spokeswoman Tori Richards said. "If this matter
does come back to us for retrial, we will have to review the case to decide
whether . . . we want to proceed."

Herrick, who is in Soledad State Prison, could not be reached for comment,
but his current attorney, Stephen Gilbert, said he was pleased with the

What Armbrust did was "fairly egregious," Gilbert said.

Herrick, 49, a member of the Orange County Cannabis Co-op, was convicted in
May 1998 on two counts of felony marijuana sale and was sentenced to four
years in prison.

He was arrested two years ago outside a Santa Ana motel room where, police
officers said, they found seven bags of marijuana marked with the cannabis
club's logo and stamped "Not for sale. For medicinal use only."

The co-op was formed after the passage in 1996 of the medicinal-marijuana
initiative, which made it legal for patients to grow and use marijuana with
a doctor's approval.

But Orange County prosecutors argued that the measure did not make the sale
of marijuana legal. Herrick and other co-op members maintained they had
accepted donations but had not charged anyone for the drug.

Similar criminal charges later landed the founder of the club, Marvin
Chavez, 42, in prison. Chavez was sentenced in January to six years for
selling and transporting the drug. His conviction is being appealed.

A third case involving another club member, Jack Schachter, 42, will go to
trial this year.

Herrick's attorney, Sharon Petrosino, had asked the trial judge to admit
confiscated donation slips from the cannabis club as evidence that there
were no records of the alleged sales. The judge denied the motion.

The attorney, during her closing argument, used the fact that the slips
were not introduced to infer that the prosecution was hiding something.
Armbrust countered in his summation that the defense could have brought in
the evidence itself--even though he knew the judge had barred the slips' use.

In its written decision, the appellate court concluded that Armbrust's
comment "undermined the defense's credibility and eroded its argument."

The state attorney general's office has 40 days to file an appeal with the
California Supreme Court; otherwise the case will be returned to Orange
County Superior Court for a possible retrial.

- ---
MAP posted-by: Keith Brilhart