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Q: Can I appeal a court’s denial of a motion for return of medical marijuana if my possession case is dismissed?

A: No, when medical related charges are dismissed by a court because the marijuana was legally possessed pursuant to Health and Safety Code § 11362.5 and defendant’s motion for return of the marijuana seized by the police is denied, the defendant can seek a review of the ruling through a petition for a writ of mandate but may not pursue his review by appeal as in a civil action for full recovery of his property.

This motion is a non-statutory motion to return property that would have been used as an exhibit in a trial had the charges not been dropped. Although the trial court has the authority to hear the motion, the right to appeal is completely statutory and a judgment or order is not appealable unless expressly made available by statute. An order denying a motion for return of property is not among the matters for which an appeal is permitted under Penal Code 1237. The proper avenue for appeal is through a petition for a writ of mandate or in a civil action for recovery of property with a right to appeal from any adverse civil judgment. (People v. Hopkins. 171 Cal.App.4th305; February 20, 2009)

Q: Can I be fired from my job if my boss finds out that I smoke medical marijuana?

A: Yes, the Compassionate Use Act of 1996 does not appear to apply in the employment context. Under California Law, an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions. Medical marijuana remains illegal under Federal law and nothing in the Act applies to the employment context to give protection in that context. Rather, the Act’s provisions are limited to exempting medical marijuana users and their primary care-givers from California criminal liability. Thus the employee has no basis to claim an exception for the use of marijuana in his employment.

In short, under current California law, because medical marijuana use still remains illegal under the Federal law, a California employer may base a hiring or firing decision upon an employee’s medical marijuana use.

Ross v. Ragingwire Telecommunications, Inc., California Supreme Court; January 24, 2008.

Q: Can someone who is accused of a crime get access to a police officer’s personnel file in order to challenge the officer's conduct or credibility?

A: Yes, under certain circumstances. Criminal defendants have a right to discover information in a police officer’s personnel file that can assist in the preparation of a defense in a criminal case. Appropriate procedures for this process have been established by the legislature and appellate court decisions.

The discoverable information can include citizen’s complaints filed against a police officer regarding excessive force, assaultive conduct, illegal searches, disciplinary action imposed on a police officer, patterns of fabricating evidence, etc. In a recent case, a court reversed a conviction because the police department and a city attorney did not provide the police officer’s entire file to the defendant. The decision as to what will be provided to the defense is made by the trial court by reviewing the police officer’s personnel file and making a decision as to what is to be given to the defendant and what is to be withheld.

Q. My wife was sentenced to jail recently and we think she's pregnant. Does she have a right to see her own doctor while she's in jail?

A. Absolutely! First, any female prisoner in a local jail has the right to ask for and receive the services of any physician or surgeon of her choice to determine if she is pregnant. Although the Superintendent of the facility can adopt reasonable rules and regulations regarding medical examinations, if a prisoner is found to be pregnant, she is entitled to a determination of the extent of medical services needed and to the receipt of these services from a physician or surgeon of her choice. The expense of a physician or surgeon provided and chosen by the jail will be paid by the jail. Any expenses of a physician or surgeon, chosen by a prisoner and whose services are not normally provided by the jail, have to be paid by the prisoner.

Q. I was convicted of a crime and placed on probation. As a condition of probation, I was ordered to pay money to the victim as restitution. I then violated my probation and my probation was revoked. Do I still have to pay the restitution money?

A. Yes! The California Constitution requires that restitution (money) be ordered in every case where a person is convicted and a victim suffers a loss unless compelling and extraordinary reasons exist to the contrary. Penal Code 1202.4 implements this constitutional requirement and also provides that if the amount of the loss cannot be determined at the time of sentencing, the restitution can be ordered at a later time at the direction of the court.

As long as the restitution was properly ordered as a condition of your probation, it survives the revocation (canceling) of your probation. Having voluntarily agreed to the terms of your probation, you cannot use your own breach of those terms as a basis for evading the restitution order of the court. In short, you are not entitled to be rewarded as a result of your violation of a probation condition.

Q. My friend was accused of assault and battery, went to trial and lost. The lawyer just seemed to sit there and the prosecutor was much more aggressive. If the lawyer's representation was really bad, can my friend get a new trial?

A. A new trial will only be granted when either the trial court or an appeals court decides that your friend received ineffective assistance of counsel from his lawyer. To win this argument, your friend must show that his representation fell short (1) when measure against a reasonably competent lawyer and (2) when the poor performance resulted in prejudice (seriously contributed to his conviction). This prejudice must be so significant that the adversarial process of the trial could not be relied upon for producing a fair result.

When making this decision, the court is reluctant to second guess the tactical decisions made by the trial lawyer. The final question is whether or not the decisions that were made by the lawyer were so bad, considering all of the surrounding circumstances of the trial, that the trial did not produce a fair fight or just result. A trial is an adversarial process by nature and if one side's representation is so poor that it wasn't a fair fight, a new trial can be granted. Your friend should contact an attorney who specializes in criminal appeals to determine whether his right to a competent attorney and a fair trial have been violated to the extent that he is entitled to get a new trial.

Q. In a trial, can the District Attorney tell the jury what a police officer's testimony would be without having the police officer testify in court?

A. No. A prosecutor commits misconduct during closing argument when she invites a jury to guess about evidence that was never presented at trial. By telling a jury that, for example, a second police officer would have testified exactly as the first police officer did, the effect is to deny the defendant his United States Constitutional Sixth Amendment Right to confront and cross-examine a witness.