Criminal law in California, and across the Nation, is in a state of flux. It has been my entire career and I think it will likely always remain that way. Laws change as the People that make them change. It is hard not to have a knee jerk reaction every January when the changes in the law are handed down; because change is hard. But change, I think, is ultimately how we do better in the criminal justice system.
My entire career in criminal law I’ve watched the laws evolve around marijuana and drugs. Cultivation of marijuana was a felony when I started practicing law. Then it changed to either a felony or misdemeanor depending on the number of plants or amount being cultivated. Currently as I write this, it is a misdemeanor (or infraction) unless there are also violations of certain environmental crimes occurring while the person is cultivating.
#22 involved a defendant who was cultivating marijuana on US Forest Service Land in a remote area of the Plumas National Forest. Law enforcement officers had to hike into the grow area and while doing so passed the irrigation system set up to water the plants, which was pulling water out of Bean Creek to irrigate approximately 350 marijuana plants. Following the irrigation system is what led officers to the defendant who was alone, sleeping on a cot, when they arrived.
The area was a rudimentary campsite with a cot, a small amount of dried beans, some cooking gear, a firepit, as well as fertilizer and plants growing both in the ground and in solo cups. Defendant was unarmed and had no communication devices with him. There was no vehicle associated with the location and officers testified at the trial and the hike was was of the harder access hikes they’ve ever had to do.
The plants at this location were small at the time officers arrived, but were still consuming 3-5 gallons of water every other day meaning that every other day approximately 1,059 gallons of water was being illegally diverted from Bean Creek for use in this plantation. At the time, given the yield the plants would have produced if allowed to mature would have resulted in $353,000.00 worth of marijuana.
Defendant was a Spanish speaker and interviewed on scene. He told officers he had been at the site for approximately 2 weeks and had been promised good money to come and work in the fields by an unknown individual defendant referred to as “Primo.” Defendant said he did not know he was going to work at a marijuana grow until he got here; he also said he knew it was illegal but he needed to make money. Defendant had been dropped off at the road and told to follow the water lines until he found the grow and when he got to the location he started to care for the plants.
This was a Cartel grow. It is pretty standard to have the Mexican Cartel drop individuals off at a remote location in our State and National Forests to take care of plants. They will have a set of workers prepare the land and set up irrigation, another tends to the crops, they could also rotate workers to harvest the marijuana and trim it for sale.
At the time my perspective on Cartel grows, as was pretty standard, was that all the workers were cogs in the machine necessary to keep the Cartel operating a substantial and profitable illegal enterprise. As such, workers were prosecuted with felonies, as well as both cultivation and possession of marijuana for sale. This defendant was charged this way, but the jury only found him guilty of a lesser misdemeanor of marijuana cultivation. The jury believed that the watering system had been prepared by someone else and this defendant should not be held responsible for the illegal watering system already in place.
Since this trial, and over the last several years, there has been a lot of information about human trafficking in the form of forced labor that has come to light because of these illegal grows. Around the time of this particular trial we started seeing an increase in defendants who were from out of the Country in our courts because of marijuana grows-mostly of Hispanic and Asian origin. The circumstances always seemed a bit similar to this case. They were offered work, not told where or what it was, and then dropped off in a remote location to tend to plants. Often we would hear that food and supplies were brought in weekly and left on the side of the road and that there was no way for the workers to leave or communicate with the outside world.
My perspective has since changed since this trial. Now, when deciding whether to file a felony, a misdemeanor, or at all, in these types of cases, the issue of forced labor is at the forefront of my mind. In deciding what to do I look at the circumstances of how a particular person got involved in a particular grow, the real life consequences of deportation should they be convicted of a felony, and whether or not their conduct justifies that level of charge. I also take into account the particular person’s actual role in the grow, the type of environmental damage actually caused by the grow itself, and whether we can link that damage to him or her.
Ultimately, this was one the jury got right with a misdemeanor and it helped me change my perspective on marijuana cultivation moving forward. It is also a good example of how prosecution evolves over time with the law as it changes. Prosecutors are given a lot of discretion in filing, charging, settling, and trying cases on behalf of the People and as there are changes in the law, and continuing research into areas affecting crime we, adapt so that our discretion aligns with what society believes is a just outcome. The jury saw it here and I see it now.