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People v. Garcia-Gonzalez.

2020 COA 166. No. 20CA0980.  Criminal Law—Cultivation of Marijuana—Land—Residential Property—Enclosed, Locked Space.

November 25, 2020

The Pueblo Police Department executed a search warrant at a suspected residential marijuana grow operation. Officers found 32 mature marijuana plants growing in the home’s detached garage. Defendant was arrested and charged with (1) possession with intent to manufacture or distribute marijuana or marijuana concentrate, in violation of CRS § 18-18-406(2)(b)(I), (III)(A); (2) cultivation of marijuana, in violation of CRS § 18-18- 406(3)(a)(I), (III)(A); and (3) being a special offender, in violation of CRS § 18-18-407(1)(a). Defendant filed a motion to dismiss, and the district court dismissed the CRS § 18-18-406(3)(a)(I) charge. The court also ordered that a petty marijuana-cultivation charge under CRS § 18-18-406(3)(a)(II) and (IV) be added.

On appeal, the People argued that the district court interpreted the term “land” in CRS § 18-18-406(3)(a)(I) too narrowly, to mean “open land,” such as farmland or unsheltered fields. The People contended that the legislature intended “land” to broadly include residential property, buildings, and structures. CRS § 18-18-406(3)(a)(I) provides that it is unlawful for a person to knowingly cultivate, grow, or produce a marijuana plant on land the person owns, occupies, or controls, and a violation of this statute is a level 3 drug felony if the offense involves more than 30 plants. While a residence, including a garage, may be on land, the residence or garage could be an “enclosed, locked space” where marijuana can be grown pursuant to Colo. Const. art. 18, § 16(3)(b). Therefore, the use of “land” in this statute does not contemplate an “enclosed, locked space” because that would eviscerate the constitutional protection. Accordingly, the district court properly dismissed the CRS § 18-18-406(3)(a)(I) charge.

However, CRS § 18-18-406(3)(a)(II)(A) does not immunize a residential grow operation from potentially violating other statutory provisions, so the prosecution can proceed on the other charges.

The order was affirmed and the case was remanded to allow the prosecution to proceed on the other charges, including the added CRS § 18-18-406(3)(a)(II) charge.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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