Appeals court overturns local pot-limit conviction

Bruce D. Mello is seen in this mug shot photo from the San

A Hollister man found guilty in 2008 for cultivating marijuana
for sale recently had his conviction overturned by the Sixth
Appellate District. It followed a written concession by the state
attorney general’s office in November that the jury received
improper instructions relating to legislative limits
– which are the focus of an active California Supreme Court case
– on the number of plants growers can possess.
A Hollister man found guilty in 2008 for cultivating marijuana for sale recently had his conviction overturned by the Sixth Appellate District. It followed a written concession by the state attorney general’s office in November that the jury received improper instructions relating to legislative limits – which are the focus of an active California Supreme Court case – on the number of plants growers can possess.

A San Benito County jury in 2008 found Bruce D. Mello guilty of cultivating marijuana for sale, and in February of last year he was sentenced to a maximum of three years in state prison. The appellate court’s Dec. 21 ruling reversed the conviction and sent the case back to the San Benito County District Attorney’s Office for possible, further proceedings.

The sheriff’s office had arrested Mello, who held a medical marijuana card, in August 2007 after discovering 27 plants at the property in the first block of Hawkins Street. The number surpassed what is allowed in the state code, which calls for a maximum of 12 immature and six mature plants – the latter designation given when they start to flower or bud. Mello had told a deputy he had grown them along with two other residents. Mello also had faced charges alleging he had possessed a stolen, sawed-off shotgun found at the residence during the search. The charges, however, were dismissed during the trial, according to court records.

During that trial, attorney Art Cantu, appointed as a public defender, had argued unsuccessfully that the jury instruction regarding the limits was unconstitutional. He contended that because voters in 1996 approved the Compassionate Use Act that did not establish such restrictions. That argument became the focus of Mello’s appeal, which followed the attorney general’s opinion siding with the appellant.

While Mello’s appeals attorney Glen Boire could not be reached before press time, Cantu interpreted the attorney general’s decision to mean the office acknowledges the legislation approved in 2003, setting the limit, was unconstitutional.

“The jury never should have been given the limitation on the number of plants as stated in the code,” Cantu said. “Either way, they (the attorney general’s office) are still conceding that limitation is unconstitutional.”

A spokeswoman for the attorney general’s office said the only document filed was “a concession with the court of appeal.”

“That was just that we agreed with the appellant’s argument that there was an error in the jury instructions on the numerical limit on the amount of marijuana,” said spokeswoman Dana Simas.

Simas said the attorney general’s opinion did not equate to a concession on the constitutionality of the legislation itself.

“It was just to remand the trial back down to the trial court,” she said. “The D.A. can decide either to prosecute the case or not.”

It’s unclear whether the district attorney’s office might call for a retrial. District Attorney Candice Hooper when reached today noted how Deputy District Attorney Patrick Palacios is overseeing the Mello matter. She did not elaborate on the possibility for further proceedings, and Palacios could not be reached immediately for comment.

What progresses from here in the Mello case might depend on a similar matter heard in November by the California Supreme Court. That decision on the constitutionality of the state legislation – in its altering of the voter-approved Compassionate Use Act – still is pending.

The Supreme Court case, People vs. Patrick Kelly, originated in the Los Angeles area. An appellate court had reversed his conviction by the time the Mello case arose, but the Supreme Court also had agreed to hear the matter. It meant Cantu during the Mello trial was unable to cite the Kelly case in his argument for unconstitutionality.

“Unfortunately, I can’t take credit for inventing the argument, but I did do my due diligence to research the issue,” he said.

At the crux of the arguments over constitutionality is a voter-approved act that many consider vague in its provisions. Since the Compassionate Use Act didn’t specify a limit on the number of plants allowed by medical growers, the Legislature added 20 new code sections, including the limitation provision, which went into effect in January 2004.

Look back for more on this story, which will appear in the Pinnacle on Friday.

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