Mendocino County's payment program for marijuana defendants under investigation

While on probation, they are allowed to continue growing marijuana if they have a doctor's recommendation, they stay within the county's 25-plant limit and they purchase zip ties from the Sheriff's Office that identify each of their plants as medicinal, Eyster said. The Sheriff's Office currently charges $25 per zip tie, officials said.

Defendants may be eligible for the restitution program more than once, Eyster said.

He said he doesn't know why the U.S. Attorney's Office is investigating the program because no one there has contacted him. The subpoena seeks financial documents that are held by the county auditor's and sheriff's offices.

U.S. Attorney's officials did not respond to repeated requests from The Press Democrat for information about the investigation.

District Attorney's Office spokesman Mike Geniella said the office doesn't collect the money. Defendants pay the restitution to the arresting agencies, which later pay a 5 percent administrative fee to the District Attorney's Office.

Mendocino County Sheriff Tom Allman's office has collected a majority of the program's revenue — $3.3 million — because it conducts a majority of the marijuana raids. The money has been used for emergency dispatch equipment, overtime and remodeling the Willits sheriff's substation.

While it's not been used to directly fund environmental cleanup, Allman said it has paid for overtime for deputies to accompany volunteer groups that have been going into public forests to clean up after illegal marijuana gardens.

The three city police departments in the county said they plan to use their restitution funds primarily to pay for their canine programs. Of the police departments, Ukiah's has received the most restitution funds — $261,960.

The Willits Police Department has collected $88,275 and the Fort Bragg Police Department has collected $31,500. State Parks has received $10,000; state Fish and Wildlife has received $1,400; the Coyote Valley Police Department has received $750; and the county's Planning and Building Department has received $4,000, according to the District Attorney's Office.

Allman said he is supportive of the program and unconcerned by the federal investigation, which included examinations of several other marijuana-related revenue-generating programs from which his office benefits.

News of the federal inquiry into the other programs first surfaced last year. However, the scope of the investigation, including the restitution program, was not clear until recently, when the grand jury subpoena came to light.

"I welcome a look," Allman said about the scrutiny of the restitution program. "The more the federal agencies learn about how we're complying with the law, the less I'm concerned they'll think we're misinterpreting the law."

The money is being taken from people who abuse the system and given to the agencies forced to deal with the problem, Allman said.

"I will hang my hat on that all day long," he said.

In addition to the 11470.2 restitution program, the federal subpoena seeks information on millions of dollars the Sheriff's Office has received from seizing assets from drug suspects; selling zip ties to medical marijuana growers; and a program that formerly issued permits for up to 99 plants. The permits were scrapped in early 2012 after federal authorities threatened to sue the county. The program earned more than $800,000 for the Sheriff's Office in its nearly two years of operation.

The subpoena seeks all records on those programs since January 2010.

Former state Sen. Barry Keene, who three decades ago introduced the legislation for Section 11470.2 of the state Health and Safety Code, supports the restitution program.

He said Eyster's interpretation of the law is an innovative way to deal with the explosion of marijuana cases, conflicting medical pot laws and legislators' failure to straighten out the situation.

California voters legalized marijuana for medical use in 1996, but recreational use is still outlawed. State and local laws implementing the voter-approved ballot measure, Proposition 215, have conflicted with federal law, which prohibits both medical and recreational use of marijuana, often resulting in tension between federal law enforcement agencies and their counterparts in California.

Keene said he contemplated whether Eyster's practice of reducing sentences in exchange for payment derived from illegal marijuana is a good or bad practice.

"I don't have a problem with that because it has been a long-standing practice to require and allow people, in many cases, to pay fines to stay out of jail," he said in an email response to questions about the law.

Critics of the program say it's detrimental to the court system to create the appearance of a two-tiered justice system.

"The whole thing stinks. The guy who has money is not supposed to walk just because he has the money," said Tom Johnson, a Ukiah attorney who does not currently practice criminal law.

Most local criminal defense attorneys were reluctant to be interviewed on the record about the program. Several said they have concerns but did not want their names in print because they have active marijuana cases and want to maintain a good working relationship with Eyster.

Ukiah attorney Don Lipmanson, one of the few willing to be interviewed on the record, said the program has done a good job of alleviating court congestion and said it works well for most of his clients because it usually costs them less than going to trial. But some of his clients struggle to find the money, borrowing from family and friends.

He'd like the program to be more flexible about considering individual financial situations. "In principle, it's sound but it needs to be entirely fair," he said.

Several defendants who've utilized the program also declined to comment for print. But a few spoke on condition of anonymity.

"This 'pay to get out of jail' thing, it's a scam," said one man, who was arrested in possession of a large amount of marijuana, an activity he contends is legal. "It's extortion when you really boil it all down."

Mendocino County judges, including Brennan, declined to be interviewed.

But Brennan made his concerns clear during a restitution hearing last year, according to Mendocino County court documents.

He refused to give his approval to a $42,600 misdemeanor plea agreement for a man caught with more than 800 small- to medium-sized pot plants, a semiautomatic pistol and a rifle. The defendant, Kyle Stornetta, a relative of a prominent local ranching family, also illegally had 56 wild ducks and 18 wild steelhead trout in his freezer, according to court documents.

Brennan said the restitution code being cited was designed to supplement, not supplant, criminal enforcement. He also took issue with the amount of the restitution, asking how it was determined. The code, Brennan said, states that it be based on actual enforcement costs.

"No matter what a person's opinion of the wisdom of our marijuana laws, the fact remains that they are the laws of the land and absent a real nexus of this amount and actual eradication costs, my concern is simply that with this number of plants involved, felonious conduct is being reduced to a misdemeanor upon the payment of a substantial amount of money," he said.

"It seems like it's extortion of defendants and it seems like it's just buying a misdemeanor and I can't abide by that," Brennan said during one of two hearings on the issue.

When the hearings failed to end in a resolution satisfactory to Eyster, he sidestepped Brennan's objections by dismissing the case and refiling the marijuana-related portion as a misdemeanor charge of possessing more than an ounce of marijuana. Stornetta also pleaded guilty to misdemeanor unlawful possession of wild steelhead, according to court documents.

Eyster said all plea agreements are now approved in the main courthouse in Ukiah, rather than in Brennan's Fort Bragg courtroom.

"I'm not going to deal with a judge who doesn't know what he's doing," Eyster said.

He said none of the other judges have refused to sign off on any of his plea agreements.

Critics also contend the program is a disincentive for marijuana growers to obey regulations and that it will bring even more illegal pot growers to the county.

"I don't think they're hitting them where it hurts. I think it's costing them less than their utility bill," and a lot less than if they were paying income tax on their pot revenue, Johnson said.

It does hurt legitimate medical marijuana patients who have been caught up in the legal system and who don't have a lot of money, said medical marijuana advocate Pebbles Trippet.

"Eyster will more or less shake down" patients with the deals, she said.

Eyster said he does not file charges against legitimate medical patients. He said he also cuts out people who are not eligible for the program, including those whose marijuana growing operations break environmental laws, steal water, use other people's property without permission or are motivated purely by greed.

District attorneys in surrounding counties, including Sonoma, Marin, Lake and Humboldt, have so far shunned the program.

"You want restitution, but you don't want to have a situation where you are basically rewarding those people with money and punishing those without," said Humboldt County District Attorney Paul Gallegos.

The grand jury investigation — a poorly kept secret among the legal community — has only exacerbated skepticism of the program.

"It's controversial, to say the least," said Lake County District Attorney Don Anderson.

Sonoma County District Attorney Jill Ravitch did not respond to numerous calls and emails requesting comment. Chief Deputy District Attorney Bud McMahon responded for her, saying his boss is no fan of the program and the county has steered clear of it.

Eyster said he's concerned neither by the naysayers nor the federal investigation.

"It's a well-researched program, supported by state law and it is functioning," Eyster said.

If the U.S. Attorney's Office is concerned about Mendocino County prosecution practices, Eyster said federal officials should accept an offer he made to hand over to them all marijuana prosecutions.

"That way, local prosecutors could focus on rape, murder, serious crimes," he said.

You can reach Staff Writer Glenda Anderson at 462-6473 or glenda.anderson@pressdemocrat.com.