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People v. Busch (Cal. Ct. App. - Aug. 4, 2010)

By Shaun Martin

Farmer goes to Store and says: "I'd like to make a purchase." Store says: "Sure. We're a full-service facility. We've got lots of alfalfa. Also some high-grade marijuana, if you're into that sort of thing."

Farmer responds: "Heck, I'll give it a shot. Maybe it'd be fun to get high while feeding the cows. Give me a joint and a bale of alfalfa." Store says: "Sold." Farmer receives 5 grams of marijuana in a joint, and what he honestly believes to be a bale alfalfa in a burlap sack. But due to an accidental mix-up in packaging, Store actually gives Farmer a five-pound bale of marijuana instead.

Farmer never looks inside the burlap sack, which he places in his back seat (alongside the joint), and never knows that he's got five pounds of weed instead of five pounds of legume. But on the way back to the farm, he's stopped by the cops for speeding. The officer asks: "Do you have any illegal drugs." Farmer says: "Darn it. Yes. There's a joint in the back seat." Farmer consents to a search, at which point the officers discover -- and for the first time, Farmer learns of -- the five-pound bale of marijuana.

The above events are undisputed: Store has a videotape of everything, and Farmer is totally credible. Possession of less than 28 grams of marijuana is a midemeanor punishable by a fine of $100. Possession of five pounds of marijuana is a felony punishable by four years in prison.

Farmer's charged with the felony. Can Farmer be put in the pokey for four years?

The Court of Appeal, in an opinion by Justice Sims -- joined by Justice Raye and the future Chief Justice of the California Supreme Court, Justice Cantil-Sakauye -- says yes.

I've changed the facts of the opinion, of course. But that's the Court of Appeal's holding. Farmer is just as guilty as Andrew Busch. Both knew they had weed. So both can be convicted or all the weed they had, even if they didn't know the full extent (e.g., weight) of it.

Interesting holding. You can see (if only based on precedent) why the case comes out that way. But you can also see (I hope) the problems with it. Because for anyone who thinks it's "just" for Farmer to be put in prison for years for committing an offense that he sincerely and rationally thought was only a $100 crime; well, we'll have to respectfully disagree on that. Yet it's equally hard to find a principled distinction between the Farmer's case and Busch's. Even though there's a huge part of us that doesn't want to allow people who knew they were transporting drugs to quibble at trial about whether they really "knew" that the drugs they were transporting were 10, 20, 50 or 50.425 kilos.

So it's a tough issue. But a holding -- like the Court of Appeal's here -- that would allow Farmer to be convicted of a felony due to Store's unknowable mix-up just seems wrong. So, for me, I'd have written a more nuanced holding here. Rather than the abjectly categorical one that the Court of Appeal issues. Which doesn't seem to me required by either the text of the statute, its intent, or considerations of due process and fair play.

Seems to me like Farmer should only go down for $100. And if Busch is truly like Farmer, ditto for him, and that's something meaningful that we'd want the jury to decide.

Full post as published by California Appellate Report on August 06, 2010 (boomark / email).