San Diego Superior Court Judge Denies Medical Marijuana Collective Cultivation Defense, Defendant Headed for Appeal

By Terrie Best – San Diego Americans for Safe Access Court Support Coordinator

July 20, 2013

San Diego, CA – In a grueling week-long trial, a superior court Judge prohibited defense counsel from bringing evidence to support that cannabis patients may lawfully collectively cultivate medical cannabis under the Medical Marijuana Program Act (MMPA). And so, a jury found one defendant with a valid medical cannabis recommendation from his doctor, guilty of cultivation.

Further, after a post-verdict informal polling of the jury, several of the twelve jurors expressed concern upon hearing they had been denied portions of the law in their jury instructions.  Attorney Laura Sheppard, an independent contractor for the San Diego County Public Defender’s office and defense counsel for the convicted Robert Orlosky vowed to appeal the conviction on several grounds.  Most egregious of these was the denial of the pre-trail MMPA motion.

Judge Peter C. Deddeh denied Ms. Sheppard’s request to defend her client under the MMPA, because the judge believed the MMPA doesn’t apply to individual users of medical cannabis. This even though Robert Orlosky’s roommate, David Jones, was assisting in the grow operation of the fewer than 20 cannabis plants and this collaboration clearly constituted a collective covered in the MMPA.

Taking full advantage of this ruling throughout the trial, San Diego County Deputy District Attorney, Jorge DelPortillo repeatedly objected to questions posed to witnesses about California’s medical cannabis collective laws.  Each time DelPortillo objected, the judge went along with him and in sidebars admonished Ms. Sheppard that HE himself would instruct the jury on the law as it applies to cannabis collectives.  Yet, when it came time to add this language to the jury instructions just prior to jury deliberation, Judge Deddeh refused to do so.

In another appealable issue, despite Ms. Sheppard’s objections, the judge allowed Robert Orlosky’s roommate, David Jones to be called as a witness by the prosecution which put him at risk for indictment in federal court. The judge erred in his ruling saying since David had already plead guilty in state court, he could not then be tried in federal court as this would constitute double jeopardy. This notion is patently wrong and Ms. Sheppard has laid record to appeal both this and the missing MMPA defense.

23 year old Robert Orlosky was charged with felony cultivation of marijuana, felony possession of marijuana with intent to sell and since Robert had a firearm – used for hunting – these two felonies carried firearm enhancements.

The jury did not find Robert guilty of the possession for sales charge and that was good news. However, the instructions given to them included a lesser offense charge: felony possession of over an ounce of marijuana. The jurors turned in a guilty verdict for that lesser offense as well as the felony cultivation charge with the firearm enhancement attached.

The trial of Robert Orlosky began on Monday, July 15, 2013 and was disquieting to me from the beginning. I had never been in Judge Deddeh’s courtroom, never seen either Laura Sheppard or Jorge DelPortillo try a case and I had never met the defendant.

There were concerns about the gun enhancement as that always bodes ill for medical cannabis patients. And, the testifying roommate was upsetting too.  I had mixed feelings deciding to writing about the case and I’m glad I changed my mind.

The first thing I noticed was how passionate Ms. Sheppard was about her client’s case and just how innocent Robert Orlosky is of the charges levied against him.  Robert is a handsome and very young- looking 23 year old with a slight build and painfully sweet face.  He has suffered much in his young life having broken his pelvis in a fall from a tree and weeks later, suffering a gunshot wound when his friend accidently pulled the trigger, shooting a bullet through Robert’s groin area and into his femur where it remains today.

In the treatment that followed, Robert had to endure exploratory surgery to very private parts of his body – I can’t imagine the trauma of that to a young man, to any man.  Since there were nine men on the jury I felt the question of whether Robert was a candidate for medical cannabis pain management was put to rest at the sight of the first gruesome picture of Robert’s wounds.

The Prosecution’s case against the young man consisted of the usual NTF agent testimony. First we heard from Matt Stevens of the San Diego County Sherriff’s office testifying to flying over the rural property where Robert and David rented a trailer, spotting some plants and raiding the property. We also heard from DEA Special Agent Lurty who testified to interrogating David Jones.

 In addition to the plants, the agents found a small kitchen scale, some drying cannabis, a bin of trimmed leaves and a couple of hunting rifles.  Deputy DA DelPortillo – whom I have taken to calling Jorjito since he’s as stubborn and temperamental as any youngster – is a small, well dressed, arrogant little man.  He strutted around the room desperate to prove a case of sales with just the amounts of cannabis and the presence of the scale as evidence.

I first saw Jorjito in action during a pre-trial 402 hearing where he tried to disqualify Dr. Michelle Sexton as an expert witness for Robert’s defense.  Dr. Sexton testified to her BA in horticulture and four years of medical school for a medical degree in naturopathic medicine at Bastyr University. After graduation, Dr. Sexton did her post-doctorate fellowship when she was awarded an individual grant and hosted in a pharmacology lab at the University of Washington. There she studied the endogenous endocannabinoid system, pain management and the body’s immune system.

Since then, Dr. Sexton has worked in private practice in the state of Washington where she treated cannabis patients and could legally recommend cannabis treatment.  Dr. Sexton also gives talks on the endogenous endocannabinoid system and most currently she’s in private practice here in San Diego.  Sadly, the state of California does not allow naturopathic doctors to recommend cannabis.

Jorjito DelPortillo insisted on the 402 hearing, all the while telling the defense he was certain Dr. Sexton would qualify as an expert witness anyway.  This prickly move would cost the public defenders’ office money but Jorjito kept Dr. Sexton on the stand for a good drubbing about just how she could be certain Robert was in pain.  The prosecutor seemed intent on dragging testimony out of the doctor to prove that she couldn’t diagnose pain without relying on the patient reporting it during her medical examination.  Leaving one wondering how Jorjito thought pain diagnosis is possible at all without the patient’s participation.

Dr. Sexton’s testimony included a thorough discussion of Robert’s injury and the painful condition of having a bullet lodged in his bone.  She told the court how he faired very poorly on opiate treatment and how he came to use medical cannabis as an alternative to the debilitating and mind-numbing opiate therapy.  Jorjito was very fixated on dosage recommendations. He insisted on an exact formula, such as that used in the pharmaceutical world.  Dr. Sexton did her best to provide that and came armed with studies which she quoted from.

In one of his less disappointing moves, Judge Deddeh allowed Dr. Sexton’s testimony at trial where she did equally well, smiling sweetly at Jorjito’s pointed questions and scoldings.

In Laura Sheppard’s cross examination of Jorjito’s witnesses we learned that the cannabis plants pulled from the ground had been taken to a DEA lab and destroyed.  However, Robert had harvested four plants prior and the bud, trim and debris from that harvest were found inside Robert and David’s home.   This is what the San Diego District Attorney’s Office based their case on.  Making it abundantly clear it is a big mistake to keep useless trim around the house.   The jurors were told but apparently did not believe that trim and fan leaves are without medical value.

The prosecution rested at the end of the day on Tuesday having proven the existence of cannabis which Jorjito, armed with rubber gloves, pulled from DEA boxes to show the jury.

It should be noted that the DEA played several tricks with the evidence.  They took a picture of six individually packaged bags of medical cannabis at the scene of the raid to make it appear they were packaged for sale.  Then back at the lab the agents dumped this cannabis into one bag so that each individual bag could not weighed.  But, when dividing the bulk back into six bags again in the evidence room it became obvious to defense expert witness William Britt that no matter how it was repackaged, none of the six parts weighed an even amount and thus it was unlikely they were packaged for sale.

William Britt also testified to the low THC potency of cannabis leaves and stems; how outside cannabis grows are often vulnerable to the elements, and the typical growing season for cannabis in southern California.

Ms. Sheppard did an amazing job presenting evidence that Robert was a legal patient in pain, growing as much cannabis as he would need for a year.  Between Dr. Sexton and William Britt her expert witnesses educated the jury that patients often separate and store cannabis but it doesn’t mean they are selling; that patients use small kitchen scales, consistent with what Robert possessed, to measure dosages and that is also not evidence of sales.

At the end of the defense case, Robert took the stand as well.  After being treated as a criminal, having his private medical issues discussed at length in front of strangers and watching the judge continually refuse to allow his attorney to fully defend him, I think Robert did very well on the stand.

The young defendant explained he had gotten some seeds at the Spring Valley swap meet along with a brochure on how to grow, stuck the seeds in the dirt and hoped for the best.  He couldn’t afford to buy from dispensaries anymore and he hoped to grow enough cannabis for his and David Jones’ needs.  Consistent with his refusal to allow a collective cultivation defense, one thing the judge refused to allow Robert to testify to was that David had a medical cannabis recommendation too.

In his cross of Robert, Jorjito DelPortillo asked him if he was just smoking cannabis because he wanted to get high.  Jorjito badgered Robert about some small cash deposits from his bank account statement – only really serving to show the young man’s low income. Prosecution also tried to pick apart testimony of a tractor sale Robert had made and received cash for. DelPortillo even pulled out a photo of Robert’s room, pointing to some Seedless brand clothing and questioning him about that. It was disturbing to watch and I felt the jury squirming.

The defense rested early Thursday, July 18^th and after brilliant closing arguments by Ms. Sheppard and the most annoying I’ve ever seen by Jorjito,  the judge and both parties began to work on the jury instructions, the inadequacies of which led to finding Robert guilty of cultivation and simple possession of marijuana.

The jury deliberated for under four hours and I was certain of a not guilty verdict.  Being wrong and listening to the guilty verdict was shocking and devastating.  It was my first guilty verdict witnessed since Jovan Jackson was denied his medical cannabis defense and lost in court – a case that has since been successfully appealed.  I hope for this success in the Orlosky case as well.

I’ll admit it was also difficult to face those twelve misguided jurors and participate in the informal jury debrief after the verdict.  I managed to listen and determine most jurors did not want to include the gun enhancement and tried hard to find a way out.  They couldn’t.

It also became apparent that had the jury been told of the collective cultivation portion of the law, things would have been different for Robert.  It felt terrible to know District Attorney Bonnie Dumains’ office has again been able to argue to a judge that in her town cannabis patients can not avail themselves of full protection under California’s medical cannabis laws. I’m grateful to Laura Sheppard for her determination to appeal this injustice.

After the hearing, several supporters came together and discussed how to help defend patients in these trials. One member of San Diego Human Solution, Adela Falk said, “I am not going to go through another guilty verdict, let’s fix this.”

Adela was in court every day in support of Robert and while watching she came up with a brilliant strategy of using the federal government’s medical marijuana program to explain dosages.

The federal cannabis distribution program known as the IND, has four cannabis patient participants who each receive from 320 to 360 gram doses of cannabis monthly. That is roughly eight to nine ounces and the medicine is sent to them by the federal employee who administers the program.

Adela felt that the federal dosage structure should be the formula for what constitutes individual need in state court too.  Since prosecutors often try to convince jurors that patients have more cannabis on-hand than they require and therefore are selling it, the federal dosage standard would be an excellent way to educate jurors on individual use and prevent the DA’s fallacies from influencing the jury.

We all hope attorneys will investigate the viability of this kind of testimony in court and want to remind all patients and cannabis advocates to keep current on how these cases are being tried and to stay safe.