Medical marijuana is not a novel concept for most San Franciscans, but it’s still beyond the pale for jurists and barristers: Until this spring, a medical marijuana cultivation case had not been brought to trial in San Francisco. That “first-of” status, as well as a recent state Supreme Court decision striking down state-mandated limits on how much medicine a patient can possess, made the recent case of Thomas and Errol Chang — a Sunset District father and son aged 62 and 30, respectively — doubly interesting to pot and legal advocates alike. The Changs historical trial for medical marijuana cultivation wrapped up last week — but none of the above reasons were why the story was featured prominently on SFGate’s front page Tuesday.
The San Francisco Police raided the Changs’ home near 32nd Avenue at Pacheco on August 12 of last year. During the bust, cops found an indoor grow operation, two firearms, and a tampered-with electricity box. All of these are mainstays of illegal marijuana grow houses — of which there have been scores busted in the Sunset — and all of this was duly noted by Chronicle crime reporter Jaxon Van Derbeken, whose story seemed to suggest that it was a lenient jury that took pity on a couple of down-on-their-luck pot growers and foiled efforts to bring them to justice.
Except for a few pertinent facts:
The cops seized the pair’s medical marijuana cards along with the pot (and left copies of the recommendations, which are essentially grow licenses, hanging on the walls in the home). The Changs didn’t jump their electrical box and steal electricity like most growers do — indeed, their PG&E bill jumped from $200 to $1,200 a month after the grow room was installed. The box was tampered with: Years ago, someone had installed a 240-volt line in order to run a washing machine. The guns? One was a shotgun, purchased at Big 5 Sporting Goods; the other was a 50-year old .22 caliber rifle rendered useless by a bent clip. So far, so legal.
And the pot? Most of the over 100 plants seized were under six inches tall. Even the best of the bunch were about a month away from harvest. Most were covered in powdery mildew, a kind of “pot rot” which is the bane of many a first-time grower — which the Changs were, having installed their grow system in their home in May, according to defense attorneys. Cops also netted a few ounces of usable pot — still in the bags from the cannabis clinics where the Changs had purchased it.
Yet despite all this, District Attorney Kamala Harris’s office came down hard on the Changs. The pair faced two charges each: One cultivation and one possession for sale, according to DA spokesman Brian Buckelew. In a pretrial hearing, prosecutors were “smugly” confident in victory according to defense attorney Jonah Chew. Their response to a plea deal was a 16-month prison term for the younger Chang, “forcing us to go to trial — it was their idea,” Chew said.
During the five-week proceedings, prosecutors centered their case on two basic facts, according to Chew and co-counsel Kenneth Quigley: That pot isn’t really a medicine, and that the Changs were growing enough to distribute and sell, not to smoke on their own. The Chronicle leapt on both, with Van Derbeken noting the pair needed “four cigar-sized joints” (also known as blunts, we hear) in order to combat their medical ailments, and that Oakland-based Dr. Hanya Barth’s practice is a cash-only operation, which, prosecutors suggested, means that medical marijuana is all hokum anyhow.
So: Bad and immature pot, legal guns, no stolen electricity, and recommendations posted everywhere, including in one of the SFPD’s evidence bags opened up at trial. Not exactly a slam dunk case — and so that’s why it shouldn’t be surprising a jury acquitted the Changs on March 11, Quigley said.
Representatives from the District Attorney’s Office have yet to respond to inquiries, namely why on earth they brought this trial forward.
Chew has his own theory. “They haven’t adjusted,” he said. “Law enforcement just hasn’t adapted to the fact that [medical marijuana] is legal.”
Update, 6 p.m.: DA spokesman Brian Buckelew just called, claiming it was the guns — and not the pot — that led to the DA bringing this case to trial. The younger Chang is a convicted felon, and in California felons may not possess firearms. “That’s why we brought the case,” he says. “The marijuana was secondary to the firearms.”
The jury acquitted the younger Chang on the firearms charge, too.
By Chris Roberts