Update: Marijuana Not a "Farm Crop" After All!

In a recent post I talked about a case where a juvenile defendant was found to have committed "grand theft marijuana" on the basis that the stolen marijuana was worth less than $400 (the statutory minimum for felony grand theft) but fell within an exception for "farm crops" of a value exceeding one hundred dollars.

This morning the judge heard further argument on the "farm crop" issue. I started out by citing Heydon's Case, a vintage precedential gem from Sixteenth Century Olde Englande. Heydon's Case announced the "Rule of Mischief," a maxim of statutory construction which invites the court to determine statutory intent from an examination of the "mischief" sought to be remedied by the legislation. The prosecutor immediately demanded to know if I had Shepardized that case. The judge expressed some doubt as to whether Heydon's Case was good law in "this country." After fending off those objections by bragging that "we" brought the English common law with us to America two hundred years ago, and have been citing it ever since, I then proceeded to the particular mischief of the latter part of the twentieth century which prompted the addition of the "farm crop" exception to the grand theft statute.

According to the Agricultural Council of California---the proponent of the "farm crops" exception in 1982---raids of commercial farmlands by produce pilferers posed such a threat to the state's farming industry that deterrent legislative action was urgently needed. Clearly that kind of "mischief" was entirely different to my client's mischief---nabbing pot plants from the back yard of a medicinal marijuana "patient."

Okay, said the judge (after I threw in a little lenity and ejusdem generis for good measure.) Theft of homegrown marijuana was not intended to be covered by the statute. Great, I thought, so now the kid gets a misdemeanor petty theft instead of a felony?

Nope. Not that simple. The judge dismissed the grand theft charge and found the kid guilty of felony receiving stolen property. Hold on, I cried. Isn't the defendant entitled to a conviction of misdemeanor petty theft as a lesser included offense of grand theft? And doesn't People v. Tatum stand for the proposition that a thief cannot be convicted of receiving his own booty? (Apparently "booty" is a legal term of art. I had to struggle not to pronounce it "boo-TAY.")

Well maybe, said the judge.

Back again next week, so the judge can figure that one out over the weekend. I'm hoping this case will one day get resolved once and for all, so I can finally take a murder case or two off the back-burner.