Kubby trial comes to a close
Auburn – Bringing some semblance of closure to one of the more contentious cases in Placer County legal history, a Superior Court judge at the request of the District Attorney’s Office dismissed marijuana-possession-for-sale charges Friday against pot activist and former Libertarian Party gubernatorial candidate Steve Kubby.
But Kubby, 54, will serve a 120-day jail sentence likely through electronic monitoring in his home on misdemeanor convictions for possession of a magic mushroom stem and peyote buttons.
Kubby brushed back tears as his wife, Michele, embraced him in relief after Judge John L. Cosgrove announced the District Attorney’s Office decision not to pursue a second trial on charges stemming from a January 1999 raid at the couple’s Olympic Valley home. The raid netted 265 marijuana plants from an indoor grow.
Outside the North Auburn courtroom, supporters, many of whom had sat through the lengthy legal battle, greeted a smiling Steve Kubby. He pumped an arm in the air as he emerged into a hallway filled with print and television reporters.
“For once, I am speechless,” Kubby said, after praising the efforts Friday of defense attorney J. David Nick and expressing pleasure with the District Attorney’s Office decision to also file a motion to dismiss similar pot-possession-for-sale charges against Rocklin dentist Michael Baldwin and his wife, Georgia.
Prosecutor Chris Cattran said his office decided not to retry the case based mainly on the vagueness of Proposition 215 and the initial 11-1 juror deadlock.
“The defense tries to make (pursuing charges against the Kubbys) out as vindictiveness,” Cattran said “But a crime occurred and we have an obligation to charge crimes and follow through.”
The Kubbys contended during a four-month trial that the pot found in their home was for their own medicinal use under Prop. 215, a law passed in 1996 by California voters that allows people to grow and possess marijuana if they have a doctor’s recommendation.
Steve Kubby was a key player in getting the proposition on the ballot and has been a high-profile supporter since its passage. Both Kubbys had doctor recommendations – he for a rare form of adrenal cancer and she for irritable bowel syndrome. A mistrial was declared in January after 11 jurors favoring acquittal gave up on efforts to persuade a lone juror holding out for a conviction to come over to their side.
While the most serious charges were expected by the defense to be dropped after the January jury impasse, Friday’s sentencing continued the combative courtroom climate so prevalent during the trial, with Cosgrove serving as arbitrator between two diametrically different takes on what Prop. 215 stands for.
On Friday, Cattran attempted to block Nick’s motion to drop the jury’s conviction on magic mushroom and peyote charges to a misdemeanor from a felony.
Nick visibly bristled when Cattran argued the defense attorney’s arguments on apparent incongruities in the peyote possession charge versus a more lenient peyote cultivation Penal Code section were groundless and a mere exercise in “mental gymnastics.”
Unlike several other occasions, including one where he was fined $200 for an outburst against Cattran within earshot of jurors, Nick stayed silent and Cosgrove eventually ruled that reductions on both convictions to misdemeanors were warranted.
The defense did lose out on two motions, one to delay sentencing until July, when Proposition 36 comes into effect. Prop. 36 mandates treatment instead of jail time for the first two convictions on drug possession charges. The other was to rule out a search-and-seizure provision that eventually would be attached by Cosgrove to Kubby’s three-year probationary term.
Outside the courtroom, Kubby said he was not satisfied with the search-and-seizure condition. He added that he will be considering a lawsuit against the county based on his belief that his civil rights were violated.
The Kubbys plan to move to British Columbia, Canada’s Sechelt Peninsula after the 120-day sentence is completed. Nick said Kubby will apply for electronic monitoring and will be required to serve all but three of the 120 days. Kubby was jailed for three days after his arrest.
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