MEMORANDUM OF POINTS AND AUTHORITIES REGARDING DEFENDANT’S ABILITY TO USE THE MEDICAL MARIJUANA DEFENSE (PROP 215 and SB 420) VIA TESTIMONY OF A CONFIDENTIAL INFORMANT
STATEMENT OF FACTS
Defendant is charged with providing medical marijuana to a friend that he knew to be a recommended and approved patient. Defendant is a grower and transporting member for a collective, authorized by the collective to grow, deliver and receive compensation for medicine. This motion does not target the identity of the confidential informant. Defendant has known the CI for well over 20 years and knows him to be a medical patient within the meaning of the medical marijuana program act (SB 420). The CI is a member of the defendant’s collective. Defendant has checked CI’s MMJ recommendation myriad times over the years. CI engaged in a lawful transaction with Mr. D and had it monitored by the police. CI recorded phone calls with Mr. D that tell tales of a lawful transaction.
Defendant has previously brought a motion for a redacted copy if CI’s medical recommendation. We were given the current recommendation, but not the one that was in place for December 5, 2013 (the date charged as the offense date). Accordingly, the People have not even complied with discovery orders already made.
Since the initial discovery order, the People have taken the position that the CI will not be called or mentioned at preliminary hearing, that the People are taking the position that it is Mr. D’ burden to prove his defense. Indeed, it is there province to do so. However, in this case, we do not know where the CI lives, so we cannot subpoena him into court to prove that he was a lawful patient, a part of the same collective that Mr. D belongs to, and was purchasing marijuana within the course and scope of that collective.
In other words, we must be given the CI’s address and whereabouts to subpoena him into court to prove our defense, unless the People wish to agree that CI was a lawful patient with a valid medical recommendation who had been a member of the same collective as Mr. Dfor many years. If the People will not stipulate to these facts, the defense must have a live witness.
The defense will also intend to call other witnesses to prove the existence and validity of the collective. Even so, CI is the most important – indeed the defense will likely rise and fall with him. Because the Police chose to turn this lawful transaction into a “CI” situation, and because the People took so long to charge this case, Defendant has lost touch with CI. CI, knowing that he betrayed a long term friend, has dropped out of sight from all common social groups and has moved his residence. Defense Counsel has given the Prosecutor the name and date of birth of the CI. She has failed to produce him. Defendant will be denied the substantial right to put on the medical marijuana defense at preliminary hearing if the CI is not produced.
Defendant only uses the term CI in this motion to allow the People to use their discretion and get rid of this clear-cut case of a lawful medical marijuana transaction without burning their snitch.
I. THE PEOPLE MUST DISCLOSE THE MEDICAL INFORMATION – AS IT RELATES TO A MARIJUANA AFFIRMATIVE DEFENSE – OF AN INFORMANT WHO PARTICIPATED IN THE ALLEGED CRIME AND IS THE SOLE MATERIAL WITNESS TO DEFENDANT’S CONDUCT.
This case requires the state’s confidential informant privilege to give way to Defendant’s right to a fair trial. The privilege, set forth in Evid. Code §§ 1041-1042, allows the state to “refuse to disclose the identity of a person who has furnished information [to law enforcement] purporting to disclose a violation of a law of . . . this state.” (Evid. Code § 1041(a).) However, this privilege is far from absolute. § 1042(d) specifically provides that a defendant may “demand disclosure of the identity of the informant on the ground the informant is a material witness on the issue of guilt,” and requires the court hold an evidentiary hearing. If the court finds a “reasonable possibility that nondisclosure might deprive the defendant of a fair trial,” the court must either order disclosure or dismiss the case. (§ 1042(d); see also People v. Lawley (2002) 27 Cal.4th 102, 159 [“the prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant”].)
The “most important principle” that springs from the case law governing the disclosure of informants’ identities “is that the prosecution cannot successfully invoke the privilege for nondisclosure of an informant’s identity if the defendant demonstrates a reasonable possibility that the informer could give evidence on the issue of guilt that might result in defendant’s exoneration.” (People v. Tolliver (1975) 53 Cal.App.3d 1036, 1043 [emphasis in original].) “Obviously, the participant-informant presents the clear-cut example of an informant who is a material witness on the issue of guilt or innocence.” (Ibid.) “Disclosure is required where the informer participated in the crime with which the defendant is charged.” (People v. Williams (1958) 51 Cal.2d 355, 358-359.)
Here, there is much more than a “reasonable possibility” that the informant is a material witness on the issue of guilt. Rather, the issue is “clear-cut”: the informant was a direct participant in the alleged narcotics transaction. The informant is the only person who can competently testify about what happened and what arrangement had been previously made. Moreover, the reasons for the CI to end a 20 year friendship in a pool of lies is equally relevant. What crime was the CI working off? Why did the CI lie to the police to get defendant caught up in this mess? These are questions to which the defendant is entitled to an answer.
Any attempt to prove a violation of Health & Safety Code § 11379 beyond a reasonable doubt without giving Defendant the opportunity to question the informant and to have compulsory process is bound to violate this state’s hearsay evidence rules and the Sixth Amendment’s confrontation clause. (See Crawford v. Washington (2004) 541 U.S. 36.). That is, failure to disclose the informant’s identity, medical marijuana recommendation and the surrounding reasons for his becoming a CI will deprive Defendant of a fair trial. Defendant is therefore entitled to discovery of the informant’s identity.
In sum, the confidential informant in this case is a material witness on the question of guilt. Therefore, fundamental fairness and Evidence Code § 1042 require disclosure of the informant’s identity. This court must order the People to disclose it. If they do not, the case must be dismissed.
II. DEFENDANT HAS A SUBSTANTIAL RIGHT TO PRESENT HIS MEDICAL MARIJUANA DEFENSE AT his PRELIMINARY HEARING.
“Medical marijuana” is an affirmative defense. The defendant is required to assert the affirmative defense and raise a reasonable doubt that the possession was unlawful. (See People v. Mower (2002) 28 Cal.4th 457, 473 [finding that the statutory medical-marijuana defense (Health and Safety Code § 11362.5) did not create a “complete” immunity from arrest or prosecution for the illegal cultivation and possession of marijuana and law enforcement officers are not required to conduct an adequate investigation of the defendant’s status as a qualified patient or primary caregiver prior to his or his arrest].) People v. Mower authorizes the defense to be raised both at the preliminary examination and via Penal Code § 995 motions (motions to dismiss the information or indictment after a preliminary hearing or grand jury), and may also support a non-statutory motion to dismiss a misdemeanor. (Id. at p. 470 [stating that a “statutory provision that grants a defendant a limited immunity from prosecution may serve as a basis for a motion to set aside an indictment or information prior to trial, as well as a basis for a defense at trial”]; see also People v. Konow (2004) 32 Cal.4th 995 [finding that, at any time in the proceeding, a defendant may ask the court to dismiss an information or complaint “in the interests of justice” under Penal Code § 1385, even though that section does not itself provide a formal procedural device].).
To deny Mr. D the ability to raise his affirmative defense denies him a substantial right at the preliminary hearing stage. The fact “that a defendant has no right formally to move for dismissal under section 1385 does not negate the defendant’s substantial right to the magistrate’s consideration whether to exercise a power explicitly granted to the magistrate by that statute, nor does it mean that a defendant has not been denied a substantial right if the magistrate erroneously and prejudicially fails to consider whether to exercise that power.” (People v. Konow, supra, 32 Cal.4th at pp. 1001-02.) The Konow court noted:
In People v. Pompa-Ortiz (1980) 27 Cal.3d 519 . . . we held that the defendant had a “substantial right” to a public preliminary examination and that this right was “denied” when the preliminary examination was closed [citations omitted], [and] we cited several decisions standing for the proposition that “denial of a substantial right at the preliminary examination renders the ensuing commitment illegal and entitles a defendant to dismissal of the information on timely motion.”
(Id. at pp. 1022-23 [internal footnote omitted].) The California Supreme Court concluded that “the superior court may set aside an information under section 995 when the magistrate erroneously and prejudicially failed to consider whether to dismiss a complaint in furtherance of justice under section 1385, and thereby denied the defendant a substantial right affecting the legality of the commitment.” (Id. at p. 1027.)
Here, Defendant has a “substantial right” to present his medical marijuana defense. However, that right will be denied unless the court acts.
III. DEFENDANT HAS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO PRESENT THE EXCULPATORY TESTIMONY OF CI.
D has a constitutional right to compel the Collective Witnesses to be witnesses at his preliminary hearing. Both the Sixth Amendment right to compulsory process and the Fourteenth Amendment right to due process of law provide the basis for this right. The Supreme Court has recognized the relationship between the Sixth and Fourteenth Amendments in this context: it is a “fundamental element of due process” that an accused “has the right to present his own witnesses to establish a defense.” (Washington v. Texas (1967) 388 U.S. 14, 19.) Just as denying a defendant’s request to put on the stand a competent witness with personal knowledge “relevant and material to the defense” violates the Sixth Amendment, (see id. at p. 23), so does a state prosecutor’s suppression of evidence “material to guilt or to punishment” violate the Fourteenth. (Brady v. Maryland (1963) 373 U.S. 83, 87.)
In the instant case, the witnesses are crucial to D’s right to mount a medical marijuana defense. CI has unique personal knowledge with respect to his role in the Collective, as well as the details of this transaction and the preceding transactions. The testimony of the Collective Witnesses is not just “relevant” or “material” to a medical marijuana defense; it is absolutely necessary. It is D’sconstitutional right to require their presence.
In that CI has already received immunity for the transaction charged herein, there are no 5th Amendment issues in this case.
 “In all criminal prosecutions, the accused shall enjoy the right to . . . have compulsory process for obtaining witnesses in his favor . . . .” (U.S. Const., 6th Amend.)
 “[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .” (U.S. Const., 14th Amend.)