Date: 08-15-2011

Case Style: State of Oklahoma v. James Cabeza Debaca, Jr.

Case Number: CF-2011-2065

Judge: Bill Musseman

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Stuart Ericson

Defendant's Attorney: Kirsten Ingrid Bernhardt

Description: The State of Oklahoma charged James Cabeza Debaca, Jr. with cultivation of marijuana in violation of 63 O.S. 2-509 and unlawful possession of drug paraphernalia in violation of 63 O.S. 2-405.

Title 63 O.S. Section 2-509 provides:

A. All species of plants from which controlled dangerous substances in Schedules I and II may be derived are hereby declared inimical to health and welfare of the public, and the intent of the Legislature is to control and eradicate these species of the plants in the State of Oklahoma.

B. It shall be unlawful for any person to cultivate or produce, or to knowingly permit the cultivation, production, or wild growing of any species of such plants, on any lands owned or controlled by such person, and it is hereby declared the duty of every such person to destroy all such plants found growing on lands owned or controlled by him.

C. 1. Whenever any peace officer of the state shall receive information that any species of any such plants has been found growing on any private lands in the State of Oklahoma, he shall notify the sheriff and county commissioners of the county wherein such plants are found growing. Within five (5) days of receipt of such notice, the county commissioners shall notify the owner or person in possession of such lands that such plants have been found growing on the said lands and that the same must be destroyed or eradicated within fifteen (15) days. When the fifteen (15) days have elapsed, the reporting peace officer shall cause an investigation to be made of the aforesaid lands, and if any such plants be found growing thereon, the commissioners shall cause the same to be destroyed or eradicated by either cutting and burning or by applications of herbicides approved for such purpose by the Department of Agriculture in accordance with Section 2-505 of this title.

2. Whenever any such plants are destroyed or eradicated by order of the commissioners as provided herein, the cost of the same shall, if the work or labor be furnished by the commissioners, be taxed against the lands whereon the work was performed, and shall be a lien upon such land in all manner and respects as a lien of judgment, if the owner is charged with a violation of subsection B of this section. If the violation of subsection B of this section is by a person other than the owner of the land, without the knowledge of the owner, the costs shall be paid by the initiating law enforcement agency.

D. Knowingly violating the provisions of subsection B or subsection H of this section is hereby declared, as to the owner, or person in possession of such lands, to be a felony and punishable as such by a fine not to exceed Fifty Thousand Dollars ($50,000.00) and imprisonment in the custody of the Department of Corrections for not less than two (2) years nor more than life. The fine provided for in this subsection shall be in addition to other punishments provided by law and shall not be in lieu of other punishment. Any person convicted of a second or subsequent violation of subsection B or subsection H of this section is punishable by a term of imprisonment twice that otherwise authorized and by twice the fine otherwise authorized. Any sentence shall not be subject to statutory provisions for suspended sentences, deferred sentences, or probation, except when the conviction is for a first offense.

E. It shall be the duty of any peace officer of the State of Oklahoma who receives information of such plants growing in the State of Oklahoma, to make notice, in writing, to the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control and the future destruction or eradication of the annual growth of such plants shall be supervised by the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control. Any destruction or eradication of the annual growth of such plants supervised by the Bureau shall be by cutting and burning the same or by destruction and eradication through applications of herbicides approved for such purpose by the Department of Agriculture.

F. Any application of herbicides authorized by this section shall be made pursuant to the provisions of Section 2-505 of this title.

G. In lieu of the eradication procedures provided for in subsections B and C of this section, all species of plants from which controlled dangerous substances in Schedules I and II of the Uniform Controlled Dangerous Substances Act may be derived, may be disposed of pursuant to the provisions of subsection C of Section 2-505 of this title.

H. Except as authorized by the Uniform Controlled Dangerous Substances Act, it shall be unlawful for any person to manufacture or attempt to manufacture any controlled dangerous substance by cooking, burning, or extracting and converting or attempting to extract and convert marihuana or marihuana oil into hashish, hashish oil or hashish powder.

Title 63 O.S. Section 2-405 provides:

Title 63. Public Health and Safety
Oklahoma Statutes Citationized
Title 63. Public Health and Safety
Chapter 2 - Uniform Controlled Dangerous Substances Act
Article Article 4 - Penalties - Offenses
Section 2-405 - Prohibited Acts E- Penalties

§ 2-405 . Prohibited Acts E- Penalties

Cite as: O.S. §, __ __


A. No person shall use tincture of opium, tincture of opium camphorated, or any derivative thereof, by the hypodermic method, either with or without a medical prescription therefor.

B. No person shall use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled dangerous substance in violation of the Uniform Controlled Dangerous Substances Act, except those persons holding an unrevoked license in the professions of podiatry, dentistry, medicine, nursing, optometry, osteopathy, veterinary medicine or pharmacy.

C. No person shall deliver, sell, possess or manufacture drug paraphernalia knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled dangerous substance in violation of the Uniform Controlled Dangerous Substances Act.

D. Any person eighteen (18) years of age or over who violates subsection C of this section by delivering or selling drug paraphernalia to a person under eighteen (18) years of age shall, upon conviction, be guilty of a felony.

E. Any person who violates subsections A, B or C of this section shall, upon conviction, be guilty of a misdemeanor punishable as follows:

1. For a first offense the person shall be punished by imprisonment in the county jail for not more than one (1) year or by a fine of not more than One Thousand Dollars ($1,000.00), or both such fine and imprisonment;

2. For a second offense the person shall be punished by imprisonment in the county jail for not more than one (1) year or by a fine of not more than Five Thousand Dollars ($5,000.00), or both such fine and imprisonment; and

3. For a third or subsequent offense the person shall be punished by imprisonment in the county jail for not more than one (1) year or by a fine of not more than Ten Thousand Dollars ($10,000.00), or both such fine and imprisonment.

F. Any person convicted of any offense described in this section shall, in addition to any fine imposed, pay a special assessment trauma-care fee of One Hundred Dollars ($100.00) to be deposited into the Trauma Care Assistance Revolving Fund created in Section 1-2522 of this title.

Outcome: NOW, THIS 8/15/2011 THIS MATTER COMES ON BEFORE THE HONORABLE BILL MUSSEMAN FOR SENTENCING AND DEBACA, JAMES CABEZA JR, APPEARS PERSONALLY AND BY HIS ATTORNEY OF RECORD, KIRSTEN BERNHARDT AND THE STATE OF OKLAHOMA IS REPRESENTED BY STUART ERICSON AND THE COURT REPORTER SHANNON HARWOOD IS PRESENT, CASE CALLED DISTRICT COURT ARRAIGNMENT; DEFENDANT PREVIOUSLY ARRAIGNED; DEFENDANT WAIVED JURY ,NON JURY TRIAL. DEFENDANT WAIVED PSI REQUEST. DEFENDANT ENTERED A PLEA OF GUILTY PLEA, COURT WITHHELD FINDINGS.

COUNT ONE COURT DEFERRED SENTENCING FIVE (5) YEARS UNTIL 8/5/2016 AT 9:00 AM ROOM 501; DEFENDANT NOT UNDER FORMAL SUPERVISION. DEFENDANT ORDERED TO COMPLETE A DRUG AND ALCOHOL EVALUATION. THE COURT ORDERED SIX (6) MONTHS OF RANDOM UAS. THIS SENTENCE IS ORDERED TO RUN CONCURRENT WITH CF-2010-3480. DEFENDANT ASSESSED COURT FUND IN THE AMOUNT OF $500.00 PLUS COST; $250.00 VCA AND $50.00 DA DRUG FUND FEE.

COUNT TWO DISMISSED COST TO STATE


DEFENDANT ADVISED OF APPEAL RIGHTS. EXECUTED RULE 8 FORM. BOND EXONERATED. ORDER OF DEFERRED ISSUED.

Plaintiff's Experts:

Defendant's Experts:

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