Pot Activist's restoration of felony drug conviction is a "death sentence"

Activist's felony drug conviction is restored
By Art Campos, The Sacrmaento Bee, June 27, 2003

The 3rd District Court of Appeal has reinstated medical-marijuana activist Steven Wynn Kubby's felony conviction for possessing mescaline.
The decision reverses a Placer Superior Court judge's 2001 ruling that reduced the conviction to a misdemeanor. The state appellate court's unpublished decision Monday said Judge John L. Cosgrove incorrectly reasoned that mescaline possession could be treated similarly to a related charge against Kubby for possessing psilocyn, or psychedelic mushrooms.

Cosgrove reduced the psilocyn conviction from a felony to a misdemeanor because the crime is considered under the law as a "wobbler" -- one that could be interpreted as either a felony or misdemeanor. The state appeals court said rules of statutory interpretation "do not permit a court to rewrite (the law) and ignore its plain language, which unambiguously makes mescaline possession a felony."

Kubby's attorney, J. David Nick of San Francisco, couldn't be reached for comment Thursday. The ruling pleased Christopher M. Cattran, the Placer County deputy district attorney who prosecuted Kubby.

"I was confident when Judge Cosgrove reduced the charge to a misdemeanor (that) he did so without legal authority and the sentence would be overturned on appeal," he said. Kubby, 56, is considered a fugitive by Placer County. He is wanted for failing to report to jail in July 2001 to serve a 120-day sentence on the mescaline and psilocyn convictions. He fled to Canada and lives in the community of Sechelt in British Columbia.

Kubby contends that the four-month jail term awaiting him in Placer County would be tantamount to a death sentence, because he would be unable to receive marijuana therapy for adrenal cancer. Narcotics officers raided Kubby's home in Olympic Valley in 1999, finding 265 marijuana plants. Kubby said he needed the marijuana to help treat his cancer and that the therapy was approved by a physician.

He was prosecuted for possessing marijuana for sale and for cultivation, but the charges were dismissed after a jury voted 11-1 for acquittal. However, Kubby, a former Libertarian Party candidate for governor, was convicted of possessing small quantities of mescaline and the psychedelic mushrooms.

Cosgrove granted Kubby's request to have the convictions reduced to misdemeanors and then placed him on three years' probation and ordered him to serve 120 days in jail. But Kubby fled the country after the U.S. Supreme Court ruled in May 2001 that selling or possessing marijuana for medical use is illegal.

Dan Gong, assistant deputy district attorney for Placer County, said his office is not likely to have Kubby extradited from Canada. "He's been granted three years' probation and faces minimal jail time here," Gong said. "Frankly, it wouldn't be worth the time, effort or expense to extradite him."