1 Guillermo Avina

5302 Dartmouth Ave

2 Westminster, CA. 92638
Pro Se, Sui Juris
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7 ________________________________________________________________________________
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9 SUPERIOR COURT OF CALIFORNIA

10 FOR THE COUNTY OF ORANGE, SANTA ANA COURTHOUSE

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PEOPLE OF THE STATE OF CALIFORNIA, )
Plaintiff, ) Docket No.
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vs. ) MOTION TO DISMISS
14 GUILLERMO AVINA ) COUNT ONE THROUGH
Falsely Accused. ) FOUR OF THE
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At all times by Special Visitation, and not by ) INFORMATION AND
16 General Appearance, conferring no jurisdiction ) RETURN OF PROPERTIES
whatsoever, and, throughout challenging this courts ) [Penal Code §995]
17 jurisdiction until such time as Plaintiff proves beyond a )
reasonable doubt that jurisdiction exists )
18 ) Charges: HS11359, HS11358,
19 ) 23152(a), 23152(b)
)
20 )
______________________________________________ )
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Defendant, GUILLERMO AVINA (“Mr. Avina”), appearing Pro Se Sui Juris hereby submits the
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following Memorandum of Points and Authorities in support of his Motion to Dismiss Counts One
26 through Four of the information and Return of Properties:
27 I. FACTUAL BACKGROUND:
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On January 19, 2011 at approximately 3:00am, Mr. Avina was pulled over on Macarthur
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Blvd in Newport Beach, California by Newport Beach Police for an improper lane change. The
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officers, Preasmyer Badge #1294 and A. Yim Badge # unknown, accused Mr. Avina of Driving
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Under the Influence (“DUI”). Officers waited over an hour and a half before conducting any sobriety
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tests, likely because they knew that holding a person for that amount of time at 3:00 am would make
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the person more willing to do whatever it takes to get home. Eventually, after failing to follow legal
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procedures for conducting a proper DUI examination, the officers placed Mr. Avina under arrest for
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DUI. Mr. Avina believes that the DUI arrest was not only procedurally faulty but also unjustified
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under the circumstances; however, this motion does not concern the faulty DUI charges instead it
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focuses on the invalid penal code violations.
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During the faulty DUI investigation, one of the officers also stated, “I smell Marijuana.”
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Upon hearing the officer’s concern, Mr. Avina immediately informed both arresting officers that he
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was in possession of a valid California State Medical Marijuana Identification Card issued by the
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Orange County Health Department (“Orange County Health Department Card”). The officers
15 blatantly ignored Mr. Avina’s valid identification card in clear ignorance of California Health and
16 Safety Code §§ 11362.7, 11362.71, 11362.765, 11362.77 and 11362.775. The Orange County
17 Health Department Card is the most legitimate form of identification for a medical marijuana patient
18 in this state, and for an officer to blatantly ignore the protection of the card without claiming it was
19 false is a violation of the law as discussed below. Based on the following arguments, this court
20 should dismiss counts one through four of the information because Mr. Avina’s conduct did not
21 violate any California penal code sections. Mr. Avina’s conduct was absolutely within his legal
22 rights.
23 II. ARGUMENT:
24 A) Mr. Avina’s Orange County Health Department Card must be accepted UNLESS
25 officers have reasonable cause to believe it is fraudulent:
26 Officers, after stalling for over an hour and a half, eventually placed Mr. Avina under arrest
27 for DUI, and subsequently searched his vehicle without Mr. Avina’s consent. When medical
28 marijuana was found in Mr. Avina’s vehicle, Mr. Avina again informed and showed the arresting
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officers his valid Orange County Health Department Card which is in strict compliance with The
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Compassionate Use Act of 1996 and subsequent California legislation in 2003 that allowed for a
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state issued identification card. Mr. Avina further communicated to the police that he was a valid
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primary caregiver as defined by California Health and Safety Code § 11362.7(d). The falsely
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accused made it clear to the officers, as was reflected in their police report, that Mr. Avina was a
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primary caregiver for numerous valid California medical marijuana patients, including AIDS, HIV
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and terminally ill cancer patients. Therefore, the approximate pound of medical cannabis found in
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Mr. Avina’s car was well within the statutory limits for a primary caregiver to possess. The
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arresting officers, believing that a pound of medical cannabis could not be for personal use,
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subsequently arrested Mr. Avina without realizing that he could legally possess that amount of
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medicine for care of his ill patients.
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The fundamental purpose of the state issued identification card is to protect medical cannabis
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patients from the exact harms suffered by Mr. Avina. What more is a medical marijuana patient to
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do to protect himself from arbitrary and unjustified arrests by officers who likely do not know the
15 very laws they are sworn to protect? The law is quite clear. Once the Orange County Health
16 Department Card is presented to an officer, he or she is supposed to accept the card unless the officer
17 has a reasonable belief that the card is fraudulent. See California Health and Safety Code §
18 11362.71(e) reads in full, “No person or designated primary caregiver in possession of a valid
19 identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of
20 medical marijuana in an amount established pursuant to this article, unless there is reasonable cause
21 to believe that the information contained in the card is false or falsified, the card has been obtained
22 by means of fraud or the person is otherwise in violation of the provisions of this article (emphasis
23 added).”
24 At no time during the traffic stop did the officers communicate to Mr. Avina that they
25 believed his Orange County Health Department Card was fake or that he was violating any other
26 provision of the law. Instead of checking the validity of Mr. Avina’s state issued identification card,
27 the officers tried to check an old expired medical marijuana recommendation. That old
28 recommendation of course came up expired, and that seems to be the officers’ only basis for the
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subsequent marijuana based arrest. Officers, in ignorance of the law, failed to accept Mr. Avina’s
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Orange County Health Department Card which is a clear violation of §11362.71(e) mentioned
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above. Officers cannot simply ignore a state issued Orange County Health Department Card unless
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they have reasonable grounds for doing so and here they did not.
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B. All counts of the information should be dismissed because Mr. Avina fully complied
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with all California statutory regulations:
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The arresting officers were in complete contravention of the law. Mr. Avina clearly
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communicated to the officers why he was in possession of medical cannabis and provided his legal
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justification for the possession. Pursuant to California Health and Safety Code Section 11362.78, a
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state or local law enforcement agency or officer must not refuse to accept the State issued
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identification card unless the agency or officer has reasonable cause to believe the information
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contained in the card is false or fraudulent. Officers blatantly ignored Mr. Avina’s rights when they
15 arrested him without any legitimate justification. California Health and Safety Code § 11362.765
16 also specifically prohibits prosecution for patients who carry the state medical cannabis patient
17 identification card. Additionally, the California Attorney General “Guidelines for the Security and
18 Non-Diversion of Marijuana Grown for Medical Use” (August 2008), clearly outline for officers the
19 correct procedures when they encounter a medical marijuana patient. The Attorney General
20 Guidelines, Section III (B)(4), unambiguously states,
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“When a person invokes the protections of Proposition 215 or the MMP and he or
22 she possesses a state medical marijuana identification card, officers should:
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a) Review the identification card and verify its validity either by calling the telephone
24 number printed on the card, or by accessing DPH’s card verification website
(http://www.calmmp.ca.gov); and
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b) If the card is valid and not being used fraudulently, there are no other indicia of illegal
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activity (weapons, illicit drugs, or excessive amounts of cash), and the person is within
27 the state or local possession guidelines, the individual should be released and the
marijuana should not be seized. Under the MMP, “no person or designated primary
28 caregiver in possession of a valid state medical marijuana identification card shall be
 1 subject to arrest for possession, transportation, delivery, or cultivation of medical
marijuana.” (§ 11362.71(e).) Further, a “state or local law enforcement agency or officer
2 shall not refuse to accept an identification card issued by the department unless the state
3 or local law enforcement agency or officer has reasonable cause to believe that the
information contained in the card is false or fraudulent, or the card is being used
4 fraudulently.” (§ 11362.78.)
5 Therefore, Plaintiff did wrongfully arrest, seize and incarcerate Mr. Avina without probable

6 cause or any other legitimate reason in violation of not less than two state statutes and the

7 unambiguous Attorney General Guidelines.

8 California Health and Safety Code § 11362.71(e) prohibits arrest on specified marijuana

9 charges for those who voluntarily participate in the state issued identification program for medical

10 cannabis patients. Patients who voluntarily participate in the identification card program must meet

11 requirements listed in Health and Safety Code § 11362.76, and pay a fee pursuant to § 11362.715.

12 The incentive to pay the fee and go through the extra steps to get the identification card, is the

13 resulting higher level of protection from prosecution pursuant to § 11362.765. However, even

14 qualified patients without an identification card are also entitled to protections pursuant to §

15 11362.7(f). No less than the Supreme Court of California held that one purpose of the 2003

16 amendments to the Compassionate Use Act of 1996 was to prevent this type of unnecessary arrest.

17 See People v. Kelly (2010) 47 Cal.4th 1008, at1014. The Kelly Court, explained in its opinion that

18 the "heart" of the 2003 amendments is in the identification card program that provides an

19 "affirmative defense" and "protection against arrest." (emphasis in original). Therefore, the arresting

20 officers were obligated not to arrest Mr. Avina unless they had a reasonable belief that his Orange

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County Health Department Card was fraudulent. By failing to have evidence suggesting that Mr.

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Avina’s card was fake, officers had no legal justification for the arrest. Mr. Avina, by and through

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this motion, now asserts his affirmative defense to the wrongful charges.

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C. Mr. Avina is willing to waive his right to sue the police for violating CA Gov. Code §

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815.6 if all pending charges are dismissed and all wrongfully seized property is promptly

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returned to Mr. Avina.
As a result of the statutory scheme, Mr. Avina alleges that Plaintiff entities should be held
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liable pursuant to California Government Code Section 815.6 since Plaintiff agencies were under a
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mandatory duty not to arrest and not to prosecute, and their failure to perform those duties resulted in
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the very arrest and posting of bail that was supposed to be prevented. The relevant California
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Government Code § 815.6 states, “Where a public entity is under a mandatory duty imposed by an
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enactment that is designed to protect against the risk of a particular kind of injury, the public entity is
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liable for an injury of that kind proximately caused by its failure to discharge the duty unless the
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public entity establishes that it exercised reasonable diligence to discharge the duty.” Newport Beach
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Police Officers are under a mandatory duty to not arrest people who possess a valid state issued
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medical marijuana card. The Health and Safety codes mentioned throughout this motion are
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designed to protect against the particular kind of injury that Mr. Avina suffered, notable wrongful
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arrest and prosecution. Officers clearly failed to discharge their mandatory duty because Mr. Avina
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is spending time and money fighting the wrongful charges. It is apparent from the facts of this case,
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that the arresting officers cannot competently argue that they exercised reasonable diligence in
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discharging their duty when they failed to even investigate if Mr. Avina’s Orange County Health
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Department Card was in fact valid. The officers did not even question Mr. Avina about his
15 possession of the Orange County Health Department Card. Instead the ignored the card’s protection
16 and wrongfully arrested Mr. Avina.
17 If government agencies such as Newport Beach Police Department can ignore the rights that
18 are supposed to be conferred by the state issued identification card, then there is no purpose for the
19 legislation and there is no incentive for any individual, like Mr. Avina, to voluntarily participate.
20 Because Mr. Avina voluntarily participated in the program he will not assert its full protection. If the
21 Orange County District Attorney assigned to this case is willing to dismiss each and every count of
22 the information and promptly return the wrongfully seized property, Mr. Avina is willing to waive
23 his right to sue under California Government Code § 815.6 and any other code sections that allow
24 recovery for wrongful government actions.
25 Mr. Avina’s request for the return of his wrongfully seized property listed in the police report
26 is made on the ground that the properties are not evidence in any case currently pending against Mr.
27 Avina nor are they contraband of any kind. Since the underlying charges were wrongfully imposed
28 the seized items were also wrongfully taken and held. Money, medical cannabis and devises used to
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ingest medical cannabis were wrongfully taken from Mr. Avina at the time of his wrongful arrest.
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The money was legally obtained pursuant to California Health and Safety Code §11362.765 which
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states that a valid medical marijuana caregiver is allowed to be reimbursed for reasonable expenses
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incurred in cultivating the medicine. Because the state has no justification for seizing the property
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listed on the police report, Mr. Avina now asserts his right to have this court order the police
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authorities to return his property which is not contraband or evidence of a crime. There is no
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authority for the police or any other governmental agency to retain possession of property which is
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not contraband, stolen property or evidence. Absent a contrary showing, Mr. Avina is presumed to
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own the property which he possessed when he was arrested. See California Evidence Code § 637
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which states, “The things which a person possesses are presumed to be owned by him.”
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III. CONCLUSION:
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Mr. Avina was fully compliant with the applicable state laws. Therefore, he now invokes the
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protection of Proposition 215 (Compassionate Users Act), Senate Bill 420 (Medical Marijuana State
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I.D. Program) as well as all California Health and Safety Code §§ 11362.7 through 11362.83 which
15 codify those initiatives in regard to all pending charges. Mr. Avina requests that this court, in the
16 interest of justice, dismiss all charges with prejudice against him and order the offending Newport
17 Beach Police Department to promptly return all properties wrongfully seized in connection with the
18 wrongful arrest.
19

20 Guillermo Avina
Pro Se, Juris Sui
21 This Motion was created on March 23, 2011 in the city of Westminster, County of Orange, State of
California. I declare under the penalty of the state that all information in this motion is correct to the
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best of my recollection.
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