Lead Opinion
I. INTRODUCTION
Aftеr appellant pled no contest to one charge of possession of a concealed firearm (Pen. Code, § 12025, subd. (a)(2))
II. FACTUAL AND PROCEDURAL BACKGROUND
In the late afternoon of July 29, 2008,
On November 6, appellant signed, and his counsel approved, a “Waiver of Constitutional Rights and Declaration in Support of Defendant’s Motion to Change Plea” (hereafter waiver form). In it, appellant agreed to plead no
Appellant also initialed the paragraph stating that his attorney had read and explained the entire form to him, which his counsel verified a few lines later. Appellant also signed the form at the end, as did the court.
Apparently sometime between December 1 and 10, appellant was interviewed by a deputy probation officer.
The probation officer’s report was received by the court on December 10, a week before appellant’s sentencing hearing on December 17.
At that hearing, defense counsel objected to the drug abstention condition as inappropriate under the circumstances, and requested both that appellant be allowed to continue using marijuana and to keep his medical marijuana card during his probationary term. After a pause to allow appellant and his counsel
The court’s final judgment and sentence included a restitution requirement regarding the Mervyn’s embezzlement and only a three-day jail term, satisfied by credit for time already served. Appellant was ordered to abstain from the use of alcohol and illegal drugs and agreed, both verbally and in writing, not to use marijuana while on probation and to surrender his medical marijuana card.
The following day, December 18, appellant filed a notice of appeal which specifically stated that he was appealing from “the sentence or other matters occurring after the plea . . . specifically (1) the court’s requirement that he choose between a jail sentence and being allowed to take marijuana for his medical condition pursuant to Health and Safety code section 11362 et sec [szc]; (2) imposition of drug testing terms and (3) no drug/alcohol terms.” No certificate of probable cause was requested or secured, however.
III. DISCUSSION
Appellant’s position on appeal is essentially the same as that asserted at the sentencing hearing and in his notice of appeal, i.e., that the court erred in insisting that appellant had to choose between the conditions of probation recommended by the probation department, including giving up marijuana use and his medical marijuana card, or not receiving probation at all and thus serving a prison term.
The People contend that these arguments lack merit because (1) appellant waived his right to appeal by his written and verbal waiver of November 6, (2) appellant did not secure a certificate of probable cause before filing his appeal, and (3) the court did not abuse its discretion in imposing such a condition of probation for appellant, inasmuch as he specifically agreed to it at the December 17 sentencing hearing. Because we agree with the People’s final contention, we do not reach their other two.
The combination of several factors leads us to conclude that the trial court did not abuse its discretion in imposing the no-marijuana-use condition.
It has long been the law in California that a trial court is vested with substantial discretion in deciding the appropriate conditions of probation in any individual case. In December of last year, our Supreme Court, in an opinion authored by the Chief Justice, upheld a probation condition requiring a defendant who had pled guilty to two counts of DUI (driving under the influence) to notify his probation officer of the presence of any pets in his residence. In so doing, the court summarized the applicable principles thusly: “ ‘Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. [Citations.] The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.] The primary goal of probation is to ensure “[t]he safety of the public . . . through the enforcement of court-ordered conditions of probation.” [Citation.]’ [Citation.] Accordingly, the Legislature has empowered the court, in making a probation determination, to impose any ‘reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . .’ (Pen. Code, § 1203.1, subd. (j).) Although the trial court’s discretion is broad in this regard, we have held that a condition of probation must serve a purpose specified in Penal Code section 1203.1. [Citations.] If a defendant believes the conditions of probation are more onerous than the potential sentence, he or she may refuse probation and choose to serve the sentence. [Citation.] Additionally, at the sentencing hearing, a defendant can seek clarification or modification of a condition of probation. [Citations.] [f] We review conditions of probation for abuse of discretion. [Citations.] Generally, ‘[a] condition of probation will not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .” [Citation.]’ [Citation.] This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself
One of our sister courts has also summarized essentially these same principles in these words: “Section 1203.1 gives trial courts broad discretion to impose conditions of probation to foster rehabilitation of the defendant, protect the public and the victim, and ensure that justice is done. [Citations.] ‘A condition of probation will not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. . . .” [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.’ [Citation.] As with any exercise of discretion, the court violates this standard when it imposes a condition of probation that is arbitrary, capricious or exceeds the bounds of reason under the circumstances. [Citation.]” (People v. Jungers (2005)
As noted above, at the time of his detention and arrest, appellant was carrying a loaded .38-caliber revolver while in the company of a 16-year-old friend. He had had that gun since, he told the police, he found it a week earlier in some bushes. Later, he told the probation officer that the gun “made him feel safe and that he was afraid somebody might try to attack him,” that he had been shot at “about one week prior to finding the gun,” that he had shared it with a friend he was either unable or unwilling to identify, and that he was planning to give the gun to a female friend “to keep it safe for him.” At the time, appellant was out of work, having been discharged by Mervyn’s four months earlier for embezzling $2,000, and had committed to both that store and the Fairfield Police Department to repay that sum to the store.
The trial court was obviously concerned with the combination of appellant’s (1) recent embezzlement of monies and consequent loss of (apparently) his first job, (2) carrying a loaded .38-caliber revolver which had been stolen in a nearby town the preceding year, (3) admission to allowing another friend (whom he was unable to identify by either name or residence) to also carry the weapon, (4) plans to allow a female friend to do the same so as to “keep it safe for him,” and (5) regular use of marijuana.
In considering these factors, the court first made clear that it did not credit appellant’s version concerning how he came into possession of the gun. Then it added, in very much the same vein: “Well, here is my problem. If I put him in jail, he won’t be smoking his medical marijuana. This gentleman had a firearm, with a most implausible explanation for it, one that if he really expects the Court to believe this, he might as well ask me to believe in Santa Claus. [j[] I don’t believe any part of this, T found it in the trash or the bushes.’ I don’t believe one word of this. This was a gun that was stolen less than a year ago out of Vacaville. He’s got it. A handgun like this is good for one thing, and that’s shooting somebody. So if he’s in a situation where he needs to have a gun to shoot somebody, he’s got real problems going on in his life, and smoking dope isn’t helping him. That’s the bottom line, [f] So I’m willing—I mean, he has a really, almost no criminal history. He’s a young man. Obviously, he’s got potential, but he keeps smoking dope and carrying firearms, and he’s going to have a lot of problems in this life, if he lives very long. [][] If he can give me one good reason why he’s carrying this gun, I’d like to hear it. But I see what he told probation, and he may think that he’s sort of gaming them. ...[][] So I have every justification, if I wish to put him in jail for a while. I don’t really know that that would be the best solution here for this defendant. As I said, he’s a young man. He obviously has made a mistake, and he’s made a couple of mistakes here recently, this mistake, the embezzlement that he is involved in, but it’s certainly not too late for him to get things turned around. He doesn’t have a serious record. In my opinion, smoking dope isn’t going to help any of this. ... [f] So if he
A few minutes later the court twice offered to allow appellant to use Marmol, “but if he doesn’t want to do that, he doesn’t have to. You’re right. So the choice is his.”
As noted, appellant then specifically made such a “choice” and opted to agree to the no-marijuana condition and give up his medical marijuana card. This choice and agreement were then made explicit on the final page of the order of probation filed on December 17. There, appellant affixed his signature underneath the statement: “The terms and conditions of probation have been explained to me and I fully understand them and agree in every particular to abide by them.” This statement—again, followed by appellant’s signature—appears directly beneath this handwritten condition: “Deft, agrees not to use marijuana while on probation. He also agrees to surrender medical marijuana card.”
We agree with this exercise of the court’s discretion for four specific reasons, two of them based on the record and two based on the applicable statutes and cases interpreting them.
The first reason is that the trial court obviously felt—and we believe correctly—that considerable doubts had been raised regarding appellant’s credibility. The premises for these doubts were that (1) at age 17 or 18, he embezzled $2,000 from his first employer; (2) he claimed to have found a stolen and loaded .38-caliber Smith & Wesson “in the bushes” a few weeks earlier; and (3) he could not give the probation officer either the name or the address of the other youth with whom he had supposedly shared possession of the loaded gun. These combined factors clearly led the court, quite justifiably we think, to doubt appellant’s “medical marijuana for a headache” claim.
But another, separate, reason reinforces these doubts. Despite the fact that that issue was both inquired into by the probation officer and then discussed in that officer’s report to the court, no evidence or argument was offered, or for that matter even hinted at, to support appellant’s claims that he (1) had migraine headaches, (2) had consulted a doctor regarding them, and (3) used marijuana only at bedtime four times a week. Thus, neither the letters from appellant’s parents, pastor, and a neighbor, nor even his own letters to the court, mention his use of marijuana, much less the reasons for it, i.e., alleged migraine headaches. Nor did appellant’s counsel оffer to supply any such evidence to the court. Indeed, the only evidence anyplace in the record on this subject was a copy of the “recently obtained” medical marijuana card attached at the end of the deputy probation officer’s report.
In sum, we find that this trial court clearly exhibited both a reasonable and a balanced perspective regarding appellant’s personal situation. On the positive side, it stressed his relative youth, his “doing well in school,” and the fact that he had “almost no criminal history.” It also offered, not once but twice, to allow appellant to take Marino! if that would aid in solving his claimed headache problems.
A third basis for our finding no abuse of discretion by the trial court rests on case law relevant to the type of specific condition involved here. The appellate courts of this state have traditionally interpreted the broad language of section 1203.1, subdivision (j) (section 1203.l(j)), as justifying reasonable probationary conditions. These have regularly included conditions precluding the use of either alcohol or drugs during the term of probation. Thus, in People v. Balestra (1999)
This court, in a decision joined in by our now dissenting colleague, cited Balestra approvingly. In People v. Brewer (2001)
But perhaps the most pertinent authority here is People v. Bravo (1987)
The holding of Bravo is still very much the law in California. (See, e.g., People v. Woods (1999)
Interestingly, no published appellate decision to date has discussed or even cited this provision (although a few unpublished ones have had occasion to consider it). It was one of many provisions of an extended statute adopted by the Legislature in late 2003 (effective on Jan. 1, 2004) that purports to define and regulate the use of marijuana for medical purposes, including provision for the issuance and use of a medical marijuana card. (See Stats. 2003, ch. 875.) The only reasonable interpretation of section 11362.795(a) is that a trial court has discretion to impose a no-marijuana-use probation condition on the holder of a medical marijuana card. This is so both because of the general law, discussed above, regarding the broad authority vested in a trial court regarding such matters and also because of the specific language of the statute. Thus, and quoting the first paragraph of section 11362.795(a), since a trial court may “confirm” that the probationer is allowed to use marijuana while on probation, it would seem obvious that it may also not so “confirm.”
Finally, section 11362.795(a)(3)—also effectively ignored by the dissent— makes clear that, even now, appellant can attempt to resolve this matter to his satisfaction, i.e., by getting a physician’s written endorsement of his use of medical marijuana and then making a “request” to the trial court for a modification of the no-marijuana-use condition agreed to by appellant on December 17.
As the record before us establishes, appellant’s trial counsel never invoked section 11362.795(a) before the trial court nor did the court mention the statute in indicating its “reasons for the decision” on the record. However, the exchange at the sentencing hearing partially quoted above effectively satisfies almost all of the requirements of subdivision (a)(1) and (2) of the statute. Further, the lack of any “entry ... in the minutes of the court” regarding its “reasons for the decision” (§ 11362.795(a)(2)) was waived in that court by the lack of any request therefore by appellant. And it is certainly waived now by the lack of any mention of the statute anywhere in appellant’s briefs to this court.
The dissent appears to feel that we cannot rely on section 11362.795 because the court did not “provide appellant notice of the need for and a reasonable opportunity to produce . . . evidence demonstrating that his use of marijuana satisfied the conditions of the CUA.” (Dis. opn., post, at p. 862; see also, to same effect, id. at pp. 869-872 & 887.) As noted above (see fn. 6, ante), it was not the responsibility of either the trial court or the prosecutor to (1) cite section 11362.795 to appellant or his trial counsel, (2) invite them to present evidence of the “migraine headaches” rationale for the “recently obtained” medical marijuana card, or (3) suggest they consider making a
A few final points: First of all, the dissent seems to assume—principally from some of the legislative history of the 2004 Medical Marijuana Program Act (MMP)—that the entire purpose of the MMP was to liberalize the use of marijuana even further, and that nothing in it could conceivably have been intended to, еven in the slightest way, address the subject of controls on the use of marijuana. But as our Supreme Court has recently noted, the MMP was passed to “address issues not included in the [CUA], so as to promote the fair and orderly implementation of the [CUA] and to ‘[c]larify the scope and application of the [CUA].’ ” (People v. Mentch (2008)
Indeed, a case decided just a few months ago makes clear that various other provisions of the MMP were intended to and did impose additional controls on the use of marijuana. In City of Claremont v. Kruse (2009)
Second, notwithstanding the CUA, under California law possession of marijuana is still illegal. (See Health & Saf. Code, § 11357 (section 11357); Fisher, supra, 96 Cal.App.4th at p. 1151; cf. also Ross v. RagingWire Telecommunications, Inc. (2008)
Third, with regard to both the CUA and the MMP, any and all defenses to criminal charges filed against a defendant must be asserted and then established as affirmative defenses. (See, e.g., People v. Wright (2006)
Fourth and finally, the assertion and establishment of the legal right to use medical marijuana is exactly what is authorized by section 11362.795(a)(3), a
In summary, the combination of the provisions of Health and Safety Code sections 11357 and 11362.795 and the authorities cited above regarding the imposition of probation conditions, make it clear that there was nothing in the slightest “unlawful” or “unconstitutional”
IV. DISPOSITION
The judgment is affirmed.
Richman, J., concurred.
Notes
All further statutory references are to the Penal Code, unless otherwise noted.
All further dates are in 2008, unless otherwise noted.
This clearly seems to be the period during which this interview took place, both because of the dates shown for the approval and filing of the report and because it has attached to it a copy of appellant’s medical marijuana card, “recently obtained” by him a few days before his interview with the deputy probation officer, i.e., on December 1, 2008.
We respectfully submit that the italicized sentence above responds adequately to our dissenting colleague’s assertion that: “Our high court has never suggested that a condition of probation that has no relationship to the crime of which the defendant is convicted, relates to conduct that is not itself criminal, and requires or forbids conduct that is not reasonably related to future criminality [citation] can nevertheless be legitimated by an ‘agreement’ of the sort appellant entered into with the trial court here.” (Dis. opn., post, at p. 875.) But, of course, that is precisely what the quoted holding from last year’s Olguin opinion does.
We will, hereafter, deal more specifically with the legal authority authorizing the type of probation conditions involved here.
Our dissenting colleague (1) argues that “[n]o witness disputed appellant’s statement that he suffers migraine headaches, which is specified in the [Compassionate Use Act] as an illness for which marijuana provides relief’ (dis. opn., post, at p. 869), (2) also argues that the trial court “expressed no interest in the validity of appellant’s medical marijuana card and never asked him to show that he genuinely suffered migraine headaches for which medical marijuana had been recommended or approved by a physician” (id. at p. 864) and “chose instead to avoid the question whether appellant’s use of medical marijuana was recommended or approved by a physician” (id. at p. 889), and (3) seems to assume that there was medical support for appellant’s claim of migraine headaches (see, e.g., id. at pp. 861, 871-872). All of these contentions and assumptions put the shoe on the wrong foot: no one produced—or even offered to produce—any evidence that appellant suffered from migraine headaches, nor was the word “physician” ever uttered by appellant or his counsel at the sentencing hearing or mentioned in any of the letters provided to the court on appellant’s behalf. As discussed further post, the CUA (Compassionate Use Act of 1996; Health & Saf. Code, § 11362.5) provides, and provides only, affirmative defenses to issues such as these. (See People v. Fisher (2002)
In his criticism of the trial court’s imposition of the probation condition, our dissenting colleague never mentions its “Marmol option” offer.
We thus respectfully suggest that our dissenting colleague is quite mistaken when he summarizes our holding of no abuse of discretion by stating that it is based on appellant’s agreement to the condition and on the basis that “appellant had the burden of proving his eligibility to use medical marijuana and failed to sustain it. . . .” (Dis. opn., post, at p. 860.) As the preceding portions of our opinion make clear, our finding of no abuse of discretion is based on much more than this.
Balestra was specifically cited approvingly by our Supreme Court in December 2008 in Olguin, supra,
In People v. Peck (1996)
We find nothing at all contrary in Justice Arabian’s concurring opinion in People v. Welch (1993)
Compare Balestra, supra, 76 Cal.App.4th at pages 68-69 and People v. Bianco (2001)
The dissent appears to contend that the term “confirm” in section 11362.795(a)(1) means that the entire subdivision should be interpreted negatively to the imposition of a no-marijuana-use probation condition, and in so doing focuses almost entirely on the term “confirm.” (See
The fact of the matter is that appellant can do precisely that at any time during his “period of probation” (§ 11362.795(a)(3)), i.e., right now. This obvious option is dealt with nowhere in the dissenting opinion.
The first MMP-imposed limitation cited by the City of Claremont court is found in Health and Safety Code section 11362.77, subdivisions (a) and (b), which limits the amount of marijuana a “qualified patient” can possess to “no more than eight ounces of dried marijuana” and “no more than six mature or 12 immature marijuana plants” if there is no doctor’s recommendation that these amounts are insufficient to meet the patient’s needs. (Ibid.)
Consistent with the City of Claremont court’s implicit holding that these additions to marijuana regulation made by the MMP are perfectly permissible, in County of San Diego v. San Diego NORML (2008)
The issue of the interaction between the CUA and the MMP, and the extent to which the latter could and did constitutionally affect the former, is involved in two now unpublished decisions of our sister court now under review by our Supreme Court. (See People v. Kelly (2008)
In attempting to apply the holding of Tilehkooh to the present fact situation, the dissent suggests that there is essentially no difference between the imposition of a probation condition and the revocation of probation. (See dis. opn., post, at p. 866.) But this seems to fly squarely in the face of both the relevant statutes and our Supreme Court’s interpretation of them. Thus, section 1202.7 provides that factors such as the “reintegration of the offender into the community” and “the needs of the defendant shall be the primary considerations in the granting of probation.” (§ 1202.7; see also § 1203.l(j); People v. Carbajal (1995)
See dissenting opinion, post, at pages 860, 873, 874-875, 884, 887.
Concurrence Opinion
I concur in the result reached by Justice Haerle that the judgment be affirmed. I write separately, however, to say that I would refrain from the discussion in the last five pages of Justice Haerle’s opinion, the pages discussing Health and Safety Code section 11362.795, subdivision (a), the “relatively new statute” that he asserts “further . . . supports” what the trial court did here, and the statute addressed in part V of Presiding Justice Kline’s dissent. I do not think that statute is a necessary or appropriate subject, for two reasons.
First, and fundamentally, the effect of the statute was not briefed by the parties: the statute was not even mentioned in either of defendant’s briefs, and was mentioned only in passing by the Attorney General, in one sentence without exposition.
Second, the statute is unnecessary to the opinion, in light of what happened below: defendant agreed to waive any claimed right" to smoke medical marijuana. Contrary to Presiding Justice Kline’s view of what occurred, I do not read the record as involving a trial court which “impose[ed] an unlawful condition of probation.” (Dis. opn., post, at p. 860.) I view the record as
What I perceive happened here is that an experienced and conscientious trial judge had before him a young man who, as the court stated, had “potential.” As the trial court also noted, defendant had no “serious” record, though agreeing to “restitution” for an “embezzlement” certainly smacks of “criminal conduct,” the words actually used by defendant’s counsel—which conduct apparently resulted in no “criminal record” only because of a benevolent district attorney. That young man, the trial court could also observe, was starting down, perhaps continuing down, a slippery slope, which may have begun with defendant’s admitted marijuana—not medical marijuana—use at ages 16 and 17. Then came the embezzlement. Then, and most seriously, defendant was found with a loaded gun, stolen months before, and defendant’s frankly preposterous story about how he found it. And then came the apparently recently obtained medical marijuana card for migraine headaches, headaches and medical marijuana utterly unmentioned by defendant’s parents or their pastor in their letters seeking leniency—the circumstance to which the trial court referred as “gam[ing] the system.” And so, the trial court in essence said, “Okay, young man, I’m going to call your bluff: Quit messing with the system and get your act together.” Defendant agreed.
People v. Blakeman (1959)
For almost 140 years California law has provided that “Any one may waive the advantage of a law intended solely for his benefit.” (Civ. Code, § 3513.) This maxim of jurisprudence has been applied in a variety of criminal cases, upholding waivers of significant rights. (See, e.g., People v. Johnson (2002)
Last year the Supreme Court confirmed all this, in Simmons v. Ghaderi (2008)
Here, an experienced, conscientious, thorough—and yes, stem—trial court exercised its discretion to get this young defendant on the straight and narrow, concluding as follows after describing defendant’s implausible story about the gun: “This statement of probation that he accepts responsibility for his actions, in this court’s opinion, that’s a joke. He hasn’t accepted anything. He wasn’t truthful with probation. . . . That is so unbelievable. I don’t know who he thinks really expects to believe a story like this, but I don’t. I don’t accept any part of it, and there’s obviously a reason he carries this gun. People don’t do anything without reasons. The reason is to shoot somebody. That’s why he had a loaded gun.
“So I have every justification, if I wish to put him in jail for a while. I don’t really know that that would be the best solution here for this defendant. As I said, he’s a young man. He obviously has made a mistake, and he’s made a couple of mistakes here recently, this mistake, the embezzlement that he is involved in, but it’s certainly not too late for him to get things turned around. He doesn’t have a serious record. In my opinion, smoking dope isn’t going to help any of this. Every person I have ever seen, that sits around smoking dope, goes nowhere. You can’t function when you are loaded, and you know, there is a good reason why they call it dope.
“So if he wants to, you know, game the system, which I think is what’s really going on here with this medical marijuana for a headache. If he wants to do that, I agree with you, you know, we’ve got some appellate cases that say he can, I’m going to have second thoughts about his judgment, and that suggests to the Court that he’s not very serious about what has occurred or changing things.”
Following that, and another conference with his counsel, defendant agreed “to surrender his medical marijuana card and to not smoke medical marijuana while ... on probation.”
Dissenting Opinion
The majority finds imposition of the challenged condition was not an abuse of discretion because appellant “specifically agreed [to the condition] at the December 17[, 2008] sentencing hearing” (maj. opn., ante, at p. 844), and because appellant had the burden of proving his eligibility to use medical marijuana and failed to sustain it (maj. opn., ante, at pp. 848-850). I respectfully disagree.
A sentencing judge has no authority to impose an unlawful condition of probation simply by extracting an “agreement” to it from the defendant. What makes this case unusual is that the trial court—which in appellant’s presence told his counsel that if appellant did not “agree” to the condition “he’s going to jail, so that’s his choice”—induced appellant’s “voluntary” acceptance of the condition precisely because of its awareness that the condition was unlawful and the court’s apparent assumption that appellant’s “agreement” would constitute an enforceable waiver of the right to challenge the lawfulness of the condition. This court’s endorsement of that assumption permits imposition of conditions of probation that are unrelated to the crime of which a defendant was convicted, forbids conduct that is not сriminal, and requires conduct that has no relationship to a defendant’s future criminality. No modem California court has ever done such a thing, which is precedent shattering.
It is of course true that, as People v. Blakeman (1959)
The majority’s analysis not only flies in the face of settled case law, but also subordinates the will of the people expressed in an initiative to the incompatible “opinion” of a sentencing judge. The Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5)
My colleagues’ supposition that appellant is ineligible to use medical marijuana is not justified by his asserted failure to produce evidence of his eligibility to do so. First of all, appellant did produce prima facie evidence of his eligibility to use medical marijuana, and neither the probation department
The dramatic changes in the law conjured by the majority are not only legally untenable and likely to cause considerable mischief, but wholly unnecessary. As I shall explain, if the trial court felt it had reasonable cause to believe appellant was not genuinely eligible to use medical marijuana, as he claimed and his medical marijuana card indicated, it had the ability to address the issue and decide it on the basis of evidence. It failed to do so, however. That failure, which seems to me to have been deliberate, cannot be cured by the tendentious speculations of this court.
L
The Relevant Facts
It is at the outset of analysis necessary to be clear about the facts. Restriction of appellant’s use of medical marijuana was first addressed by the court at the December 17, 2008 sentencing hearing. At the commencement of the hearing, the court stated that its “inclination at this point is to follow the presentence report.” The report recommended that probation be conditioned on a blanket prohibition of the use of drugs or alcohol. However, it also stated that appellant had an unexpired “Medical Cannabis Patient Identification Card” and said he used marijuana for migraine headaches. The report included a copy of the verified medical marijuana card appellant produced and offered no view as to its validity or invalidity or whether appellant’s use of marijuana was protected by the CUA.
When the court inquired whether defense counsel had any comments regarding the recommendations made in the report, counsel objected to the recommendation that probation be conditioned on blanket prohibition of the use of drugs or alcohol and requested that appellant be allowed to continue his lawful use of medical marijuana while on probation. The court responded: “Let me just cut you off right there. If I let him use marijuana, he’s going to jail with no ASP [alternative sentence program], so that’s his choice. Why don’t you talk to him about that.”
After a 15-minute break, counsel reported to the court that she had discussed the matter with appellant and he had made a decision. Before revealing the
When counsel pointed out that the court was forcing appellant to “make a decision between his prescription medication, and, in essence, his freedom,” the court explained its “problem.” On the one hand, appellant “had a firearm, with a most implausible explanation for it, one that if he really expects the Court to believe this, he might as well ask me to believe in Santa Claus.” Refusing to “believe any part of this, T found it in the trash or in the bushes,’ ” the court stated that “[t]his was a gun that was stolen less than a year ago out of Vacaville. He’s got it. A handgun like this is good for one thing, and that’s shooting somebody. So if he’s in a situation where he needs to have a gun to shoot somebody, he’s got real problems going on in his life, and smoking dope isn’t helping him. That’s the bottom line.”
The court emphasized its willingness to grant appellant probation, because “he has . . . almost no criminal history. He’s a young man. Obviously, he’s got potential, but he keeps smoking dope and carrying firearms, and he’s going to have a lot of problems in this life, if he lives very long.” The court made clear its “opinion” that “smoking dope isn’t going to help [appellant]” and that “[e]very person I have ever seen, that sits around smoking dope, goes nowhere. You can’t function when you are loaded, and you know, there is a good reason why they call it dope.”
The court also expressed the view that “what’s really going on here with this medical marijuana for a headache” was “gam[ing] the system,” suggesting judicial disbelief appellant genuinely suffered any affliction for which medical marijuana provided relief. Apparently referring to Tilehkooh, supra,
“THE COURT: Is that what you wish to do, Mr. Moret? Do you wish to agree not to use marijuana while you are on probation?
“THE DEFENDANT: Yes.
“THE COURT: Are you willing to agree not to use marijuana? [][] Do you understand that I can’t order you not to use marijuana? Do you understand that?
“THE DEFENDANT: No, I didn’t know that, but—
“THE COURT: Well, your attorney is well-aware of it, and that’s what the appellate courts have said. If some doctor says that its okay for you to smoke dope, then regardless of what you are doing in your personal life, the crimes that you are committing, I’ll tell you one thing, that you are not going to smoke dope in jail, and you are not going to smoke dope in state prison, if that’s where you end up. They won’t allow it there.
“MS. GROGAN [defense counsel]: Your Honor, may I have one moment?
“THE COURT: Yes.
“MS. GROGAN: Your Honor, he understands what he is agreeing to. [][] Mr. Moret, do you agree to surrender your medical marijuana card and to not smoke marijuana while you are on probation?
“THE DEFENDANT: Yes.
“THE COURT: Okay. I’ll accept that.” (Italics added.)
Without determining that appellant’s use of marijuana was unprotected by the CUA, the court ordered only that appellant “not use marijuana while you are on probation.” The court expressed no interest in the validity of appellant’s medical marijuana card and never asked him to show that he genuinely suffered migraine headaches for which medical marijuana had been recommended or approved by a physician. State law directs that a state or local law enforcement agency or officer “shall not refuse to accept an identification card,” unless the agency or officer “has reasonable cause to believe that the information contained in the card is false or fraudulеnt, or the card is being used fraudulently.” (§ 11362.78.) As I have said, the probation department
As will be seen, none of the “factors” underlying the majority’s conclusion that the trial court did not abuse its discretion in fact support its decision. Appellant’s “personal situation” does not provide any reason to think his use of medical marijuana is unlawful or related to his offense or future criminality; there is no authority at all, let alone “substantial appellate precedent,” supporting the imposition of a condition of probation that is unrelated to the defendant’s offense or future criminality and restricts lawful conduct; and the 2004 statute Justice Haerle alone relies upon never came into play in the trial court and is inapplicable.
n.
A Condition of Probation Restricting a Right Protected by the CUA Serves No Legitimate Penal Purpose
As indicated, appellant objected to the condition as unlawful on the basis of the reasoning and holding in Tilehkooh, supra,
The defendant in Tilehkooh had been placed on probation for the offense of maintaining a place for the use of a controlled substance. One of the conditions of his probation was not to possess or consume controlled substances unless prescribed by a physician, and to not use or possess any dangerous drugs or narcotics. After he informed his probation officer that he was using marijuana for a medical condition upon the recommendation of his physician, the trial court revoked his probation. The Court of Appeal reversed, concluding, as material, that the CUA provided the defendant a defense, and that revocation of probation for the medical use of marijuana serves no legitimate penal purpose.
In explaining its reasoning, the court emphasized that section 11362.5 (i.e., the CUA) did more than merely decriminalize the possession and use of medical marijuana. Subdivision (b)(1)(A) says the purpose of section 11362.5 is to “ensure ... the right to obtain and use marijuana for medical purposes.” Subdivision (b)(1)(B) says that in order to achieve that purpose, it is also necessary “[t]o ensure that patients . . . who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.” (Italics added.) As the Tilehkooh court observed, “[w]e are directed to give sense to all of the terms of an enactment. To do so requires that we give effect to the purposes of section 11326.5 to ensure the right to obtain and use marijuana. In particular, we must give effect to subdivision (b)(1)(A), which establishes a ‘right to obtain and use
In determining that the revocation of probation for the medical use of marijuana serves no rehabilitative purpose, the Tilehkooh court began by pointing out that “ ‘California Courts have traditionally been wary of using the probation system for any nonrehabilitative purpose, no matter how superficially rational.’ ” (Tilehkooh, supra,
The Tilehkooh court also noted that probation may be limited by other statutes, pointing out that California courts have upheld the specific limits on probation established by the Substance Abuse and Crime Prevention Act (Pen. Code, § 1210 et seq.) enacted by the voters in 2000 as Proposition 36, citing as examples People v. Davis (2003)
The majority attempts to contain the reasoning of Tilehkooh by declaring that the imposition of a probation condition is not a “ ‘criminal sanction’ ” within the meaning of the CUA, and by emphasizing that the Tilehkooh court held only “that a revocation of probation based on the use of marijuana was such a sanction and therefore subject to the defense provided by [the CUA].” (Maj. opn., ante, at p. 856.) This strained argument cannot succeed. “The essence of probation is the condition—a judicially imposed restriction upon the convict’s actions after release. The offender’s life is closely supervised by a probation officer; his breach of any of the restrictions may lead to revocation of the limited grant of freedom and imposition of the more coercive penalty prescribed for the crime.” (Note, Judicial Review of Probation Conditions (1967) 67 Colum. L.Rev. 181, fti. omitted.) If, as the majority acknowledges, probation cannot be revoked for violation of a probation condition restricting the use of marijuana that complies with the requirements of the CUA (because it serves no reformative or rehabilitative purpose), imposition of the condition is pointless. All it accomplishes is the placement of a legally unwarranted cloud over a probationer’s conduct.
Ignoring the reasoning of Tilehkooh, the majority suggests in a footnote that it may be inconsistent with that of People v. Balestra (1999)
Indeed, the trial court’s explanation of how the use of medical marijuana while on probation would interfere with appellant’s reformation and rehabilitation utterly ignores the CUA. The only explanatiоn offered by the trial court—that “[ejvery person I have ever seen, that sits around smoking dope, goes nowhere . . . [and] [y]ou can’t function when you are loaded . . .”— would justify restriction of the lawful use of medical marijuana in every case. The theory that led the sentencing court to impose the challenged condition is not shared by the voters who enacted the CUA. If the question were whether I agreed with that theory, I would, like Justice Holmes, “study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.” (Lochner v. New York (1905)
III.
No Evidence Shows That Appellant’s Use of Medical Marijuana Is Not in Accordance with and Protected by the CUA
In People v. Peterson (1973)
People v. Peck (1996)
The factual inquiries conducted in Peterson and Peck have no counterpart in this case. The absence of inquiry and evidence here is comparable to that in In re Bushman (1970)
There is no evidence or reason to think appellant’s use of marijuana was related to his offense or uncharged embezzlement or to any other questionable behavior, and he has never been charged with a marijuana offense or any other drug offense. No witness disputed appellant’s statement that he suffers migraine headaches, which is specified in the CUA as an illness for which marijuana provides relief. (§ 11362.5, subd. (b)(1)(A).) There is also no evidence that appellant’s use of marijuana was not recommended or approved by a physician to relieve the pain caused by appellant’s migraine headaches. Nor did the probation department or the prosecution question appellant’s
The majority, however, takes the view that appellant had the responsibility and failed to demonstrate his entitlement to use medical marijuana. The majority states, “no evidence or argument was offered, or for that matter even hinted at, to support appellant’s claims that he (1) had migraine headaches, (2) had consulted a doctor regarding them, and (3) used marijuana only at bedtime four times a week. Thus, neither the letters from appellant’s parents, pastor, and a neighbor, nor even his own letters to the court, mention his use of marijuana, much less the reasons for it, i.e., alleged migraine headaches. Nor did appellant’s counsel offer to supply any such evidence to the court. Indeed, the only evidence anyplace in the record on this subject was a copy of the ‘recently obtained’ medical marijuana card attached at the end of the deputy probation officer’s report.” (Maj. opn., ante, at p. 848.)
I recognize that medical use of marijuana under the CUA is “an affirmative defense to be proven by the defendant at trial” in a criminal prosecution (People v. Fisher (2002)
The identification card system under the MMP thus provides the holder of such a card protection beyond that available to other persons who may be entitled to use medical marijuana. The identification card serves as prima facie evidence of a right to protection under the CUA. Had appellant not possessed a medical marijuana card, it would have been incumbent upon him to demonstrate to the court that he was entitled to use medical marijuana. But the identification card issued to appellant under laws intended to facilitate protection of authorized medical marijuana users put an onus on the prosecution and the court to identify some reasonable cause for believing the card was not valid. The court was not free to ignore the card altogether, as it did.
The majority upholds the trial court’s decision in large part because it shares the trial court’s doubts about appellant’s credibility, which led it to question “ ‘[this] medical marijuana for a headache’ claim.” (Maj. opn., ante, at p. 848.) Because nothing in the CUA condones the use of marijuana for nonmedical purposes, legitimate doubts about appellant’s credibility and possible “gam[ing] the system” would certainly have justified judicial inquiry into the validity of his medical marijuana card and eligibility to use medical marijuana. The court could have treated appellant’s request to use medical marijuana while on probation as a request pursuant to section 11362.795, subdivision (a)(1), for the court to “confirm” that he is allowed by the CUA to use marijuana for medicinal purposes, and refuse to so “confirm” if it found his use was not in compliance with the CUA; in which case the court’s decision and the reasons for the decision would have to be stated on the record and an entry stating those reasons made in the minutes of the court. (§ 11362.795, subd. (a)(2).) If the court refused to “confirm” that appellant was qualified to use medical marijuana, it certainly could have imposed the challenged condition.
But the court did not employ that procedure, and the record provides no evidentiary basis for assuming appellant’s medical marijuana card was not valid and his use of marijuana does not satisfy the conditions of the CUA.
IV.
Appellant’s “Agreement” to the Condition Does Not Constitute an Enforceable Waiver of the Right to Challenge Its Unlawfulness
The challenged condition cannot be sanctified by appellant’s “agreement” to it at the sentencing hearing. Preliminarily, as all familiar with the criminal justice system are well aware, “[i]n the vast majority of cases, the offender will agree to almost any condition of probation in order to avoid extended incarceration.” (Polonsky, Limitations Upon Trial Court Discretion in Imposing Conditions of Probation (1973-1974) 8 Ga. L.Rev. 466, 486.) Courts that have analogized the transaction between the defendant and the trial court to a “bargain” or “contract” to act do so improperly, it is said, “because the analogy is not complete. The law of contract is posited upon the notion of an equаlity of bargaining position between parties which culminates in a voluntary agreement. However, defendants are not in a position to bargain with a court because virtually any condition is preferable to jail.” (Best & Birzon, Conditions of Probation: An Analysis (1962-1963) 51 Geo. L.J. 809, 832-833, italics added.)
As one court has explained, reviewing courts should not use waiver theory to avoid the need to inquire into the validity of a condition claimed to be unlawful on the ground the defendant consented to it because such consent “is a ‘hypothetical’ or a ‘nominal’ rather than real consent. The overhanging Damoclean sword of imprisonment prevents a true consent. The ‘waiver’ concept also fails to take into account the duty, the authority, nondelegable, of the trial court to imprison or grant probation on lawful terms. That power
Our Supreme Court has made clear that, where, as here, a proper objection was made at the sentencing hearing, “[a] criminal defendant need not reject probation and accept incarceration in order to seek review of an allegedly unreasonable or invalid search condition . . . .” (People v. Woods (1999)
The majority finds support for its decision in the statement in Justice Arabian’s concurring opinion in Welch that, “[i]f the trial court determines in the proper exercise of its discretion that it cannot achieve the rehabilitative goals of probation without imposing an objectionable condition, then it will be fully justified in denying probation on that basis if the defendant declines to accept it.” (Welch, supra,
The unfair waiver theory adopted by the majority is not, as my colleagues say, authorized by People v. Bravo (1987)
Bravo did not involve a claim that the search condition at issue was invalid under the Lent test, and there was no objection to the condition at the time of sentencing. On the contrary, the defendant overtly acknowledged that he was subject to the challenged search as a condition of probation, and made no claim that the waiver effected by his acceptance of that condition was involuntary; nor did he even claim that the search condition was unreasonable. (Bravo, supra, 43 Cal.3d at pp. 602-604.) His very different argument was that, notwithstanding the reasonableness and lawfulness of the search condition, “a ‘rule of reasonableness’ applied, permitting a search only if there were reasonable cause to believe he was currently involved in criminal activity.” (Id. at p. 604.) Bravo holds that a probationer who agreed as a condition of probation to submit to warrantless searches could not subsequently challenge such a search on the basis that it was conducted without reasonable cause to believe he was currently involved in criminal activity. In other words, the holding of Bravo is merely that the scope of the defendant’s consent to the search condition encompassed consent to a search without reasonable suspicion of criminal activity. (Id. at pp. 605-610.) The situation in Bravo is thus completely different from that here, where appellant is attacking the lawfulness of the challenged condition and made a timely objection, and the voluntariness of his consent to the condition is highly questionable. Nothing in Bravo suggests that a defendant cannot challenge a condition of probation invalid under the Lent test because he or she accepted it in order to avoid the more onerous alternative of prison or jail. On the contrary, the Bravo court expressly stated that the defendant’s consent would not have permitted a search “conducted for reasons unrelated to the rehabilitative and reformative purposes of probation or other legitimate law enforcement purposes” such as for “harassment or . . . for arbitrary or capricious reasons.” (Bravo, at p. 610; see People v. Robles (2000)
The general principle underlying Bravo and our opinion in Brewer
Except for People v. Juarez (2004)
Take, for example, People v. Olguin, supra,
In every one of the other cases cited by the majority, the opinion also makes clear that the challenged condition was in some fashion reasonably related to the reformation and rehabilitation of the defendant and therefore valid. (People v. Jungers, supra,
In People v. Johnson (2002)
As Justice Kennard explained, “the trial court required defendant’s waiver not just of credits for time spent at the Turning Point treatment program but also for time spent in county jail, both before sentencing and while awaiting placement in the program. The waiver was to give defendant an incentive to successfully complete the residential treatment program based on the knowledge that failure to do so would expose him to imposition of the six-year prison sentеnce unreduced by previously served custodial time. Here, defendant, who admittedly suffers from drug dependency, committed a serious residential burglary warranting maximum punishment, but the trial court’s grant of probation gave him a chance to get off drugs and to avoid state prison. On these facts, we cannot say that the trial court’s requirement of a waiver of custody credits as a condition of granting probation lacked any legitimate penal function.” (People v. Johnson, supra, 28 Cal.4th at pp. 1056-1057, italics added.) Because the condition imposed in Johnson provided the defendant “sufficient incentive to comply with the other terms of probation and to successfully complete the rehabilitation program” (id. at p. 1057), it passed the Lent test and the defendant’s waiver was enforceable.
Our opinion in Juarez, supra,
IV.
The Different and Novel Waiver Theories Advanced by the Attorney General Are Untenable
The majority’s analysis of this case is very different from that of the Attorney General. To begin with, like the district attorney, the Attorney General never suggests that appellant’s use of marijuana fails to satisfy the conditions of the CUA. Recognizing that marijuana use in compliance with the CUA is not criminal conduct, the Attorney General urges that the CUA nevertheless “did not completely abrogate the trial court’s discretion when placing conditions on probation.” According to the Attorney General, “[t]he requirement that appellant choose between the abandonment of his marijuana use during the term of probation or deprivation оf the drug during a term in jail was reasonably related to appellant’s rehabilitation and the protection of the public” or, alternatively, “the trial court cannot be said to have abused its discretion in providing defendant the opportunity to continue using medicinal marijuana other than during his jail term at his choice.” This argument is incomprehensible.
First of all, the Attorney General offers no satisfactory explanation as to how the restriction on medical marijuana is reasonably related to appellant’s rehabilitation and the protection of the public. The Attorney General’s conclusionary statement that the trial court in this case “articulated a well-reasoned summary of the facts and circumstances” that led to the condition is inexplicable. The factor that led to the condition was no more than the trial judge’s expressed “opinion” that “smoking dope isn’t going to help [appellant]” and that “[e]very person I have ever seen, that sits around smoking dope, goes nowhere.” Insofar as this opinion applies to medical marijuana, it conflicts with the stated purpose of the CUA.
Furthermore, the choice “between the abandonment of [appellant’s] marijuana use during the term of probation or deprivation of the drug during a term in jail” is no choice at all. Neither of the alternatives to acceptance of a medical marijuana restriction presented appellant (namely, prison or jail)
Finally, while the CUA does not explicitly address the conditions that may be placed on probation, it clearly declares that no “criminal prosecution or sanction” may be placed on the use of marijuana it authorizes. (§ 11362.5, subd. (b)(1)(B).) The Attorney General does not explain why a judicial restriction on the use of medical marijuana is not such a criminal sanction nor why, contrary to Tilehkooh, such a restriction is not barred by the CUA.
The Attorney General does not take issue with the reasoning and holding of Tilehkooh, but finds it distinguishable, arguing that “[i]n Tilehkooh, the court noted that the reason the defendant was placed on supervised probation was for maintaining a place for the use of a controlled substance and the record failed to convey what were the circumstances of the offense. [Citation.] Here, by contrast, the record clearly indicates the circumstances of the offense and the exact substance with which appellant was involved. Further, the trial court articulated a well-reasoned summary of the facts and circumstances that led to the probation order.”
This argument is as weak as the others the Attorney General advances. As the unknown circumstanсes of the offense for which the defendant in Tilehkooh was on probation were not relevant to the issue on appeal and the absence of this evidence did not factor into the court’s analysis, the significance of the Attorney General’s distinction is unclear. In any event, the Attorney General’s description of Tilehkooh as having “merely found a probation condition, which prohibited the lawful use of a prescription drug, did not serve a rehabilitative purpose where there is no claim that the probationer’s conduct endangered others or that he diverted marijuana for nonmedical purposes,” also accurately describes the situation in this case. In fact, the defendant in Tilehkooh was convicted of a drug offense and had a history of marijuana use, making the absence of rehabilitative purpose even more apparent in the present case, since appellant was not convicted of a drug offense.
The Attorney General’s statement that “appellant cannot satisfy the elements of the Lent test” because “[t]he court contemplated that only after appellant completely dissociated from the marijuana subculture would it be likely that he will not commit crimes in the future” begs the fundamental questions, which are how appellant’s continued use of medical marijuana in a manner that satisfies the conditions of the CUA relates to future criminality (which is a factual question) and, if that can be shown, how a restriction of such use can be reconciled with the CUA (which is a legal issue).
The written “Waiver of Constitutional Rights and Declaration” appellant filed in support of his motion to change his plea states: “Even though I will be convicted in this case as a result of my plea, I have the right to appeal the judgment and rulings of the court. [j[] I give up my right of appeal.” (Original boldface.) Appellant initialed the provision and signed the waiver form, acknowledging that his attorney had read and explained the document to him and that appellant entered the agreement freely, voluntarily, and knowingly. He also initialed the portions of the form stating that the maximum punishment was “3 years State рrison,” and that the prosecution would not file criminal charges against him for embezzling $2,000 from his former employer, Mervyn’s, but if appellant received probation on the instant offense it would be conditioned on payment of restitution to Mervyn’s for the uncharged embezzlement. According to the Attorney General, this was a “specific waiver” which operates to bar appellant from appealing any later sentencing error, presumably including the lawfulness of the challenged condition of probation.
The Attorney General’s contention rests chiefly on People v. Panizzon (1996)
After pointing out that the sentence imposed was exactly that specified in the plea agreement, the court stated that the defendant was really seeking “appellate review of an integral element of the negotiated plea agreement, as
In Panizzon, by contrast, the “[djefendant’s characterization of the issue on appeal as an ‘unforeseen or unknown error’ is off the mark because the sentence imposed by the court was neither unforeseen nor unknown аt the time defendant executed the Waiver and Plea agreement. Moreover, the essence of defendant’s claim is that his sentence is disproportionate to his level of culpability [citation], a factor that also was known at the time of plea and waiver. Thus, the real thrust of defendant’s claim concerns events predating entry of the plea and waiver.” (Panizzon, supra,
What was said of the defendant in Panizzon-—that he sought to “challenge] the very sentence to which he agreed as part of the plea” (Panizzon, supra,
The waiver incorporated in appellant’s motion to change his plea is accompanied by acknowledgments that “the sentence I receive is solely
The Attorney General argues that appellant’s reliance on In re Uriah R., supra,
The Attorney General relies upon a line of cases (having nothing to do with any issue raised in this case) stating that though a notice of appeal states that it is from the “sentence,” it must be considered as being from the judgment, “since the judgment and the sentence are in fact one in common parlance and contemplation.” (People v. Bauer (1966)
The Attorney General’s argument conveniently eliminates the difference between specific and general waivers of the right to appeal, which is at the
Nor is appellant’s appeal barred by the lack of a certificate of probable cause, as the Attorney General also maintains. The certificate of probable cause requirement (Pen. Code, § 1237.5) generally does not apply to matters occurring after entry of the plea such as the penalty to be imposed. In particular, the certificate requirement does not apply to “attacks on the trial court’s discretionary sentencing choices left open by the plea agreement” (People v. Williams (2007)
V.
Justice Haerle’s Interpretation of Section 11362.795 Distorts the Text and Purpose of the Statute, Which in Any Case Never Came into Play in This Case
Speaking only for himself, Justice Haerle maintains that the enactment of section 11362.795 in 2004, eight years after enactment of the CUA, vested the trial court with discretion to impose the challenged condition even if appellant’s right to use marijuana is protected by the CUA.
The reasoning that leads Justice Haerle to conclude that section 11362.795 grants a sentencing court “discretion to impose a no-marijuana-use probation condition on the holder of a [facially valid] medical marijuana card” (maj. opn., ante, at p. 853), focuses on the Legislature’s use of the word “confirm.” Since a trial court may “confirm” that a probationer is allowed to use marijuana while on probation, Justice Haerle points out, “it would seem obvious that it may also not so ‘confirm.’ ” (ibid.) Pointing out that the statute requires the court to place its “decision” (to confirm or not confirm) on the record and in the minutes of the court (which was not done here), Justice Haerle attributes to the verb “confirm” the meaning of the verb “decide” and untethers the judicial decision from the directives of the CUA. The protections of the CUA are unavailable, Justice Haerle says, because although the CUA bars the imposition of a criminal sanction for the use of medical marijuana, it does not specifically preclude a trial court “from imposing a ‘no-marijuana’ probation condition.” (See maj. opn., ante, at pp. 853-854, fn. 13.) This theory falls of its own weight.
First of all, the CUA does not specifically preclude a court from imposing any particular criminal sanction for the use of medical marijuana because it prohibits all such sanctions. The blanket prohibition on the imposition of criminal sanctions for the use of medical marijuana set forth in the CUA would be rendered nugatory if Proposition 215 had to specifically enumerate every
Furthermore, as used in section 11362.795, the word “confirm” does not have the meaning Justice Haerle attributes to it. According to the Oxford English Dictionary, the word “confirm” has two principal meanings: “To make firm or more firm, to add strength to, to settle, establish firmly” and, more pertinent here, “To make valid by formal authoritative assent (a thing already instituted or ordained); to ratify, sanction.” (Oxford English Dict. (2d ed. 1989) p. 709; see also Roget’s II, The New Thesaurus (1980) p. 187 [stating that to “confirm” is “[t]o assure the certainty or validity of: a suspicion confirmed by evidence”].) The Legislature’s use of the word “confirm” in section 11362.795, obviously contemplates a judicial inquiry into the largely factual question whether the defendant’s asserted right to use marijuana for medical purposes satisfies the conditions of the CUA. If, as Justice Haerle says, the statute can be construed to permit a judge to decide (i.e., “not confirm”) that a defendant may not use marijuana while on probation even if he or she is authorized by the CUA to use medical marijuana, then a judge could also decide (i.e., “confirm”) that a defendant is allowed to use marijuana while on probation even if he or she is not authorized to do so by the CUA, which is, of course, absurd. Justice Haerle’s analysis simply cannot be reconciled with Mower and Tilehkooh, which he ignores.
The absence of legislative intent to grant judges the right to restrict the use of medical marijuana by a person eligible to do so under the CUA is shown not just by the text of section 11362.795, but also by its legislative history. Section 11362.795 was part of Senate Bill No. 420 (2003-2004 Reg. Sess.) introduced by Senator John Vasconcellos in the 2003 legislative session and commonly known as the Medical Marijuana Program. “In uncodified portions of the bill the Legislature declared that, among its purposes in enacting the statute, was to ‘[c]larify the scope of the application of the [CUA] and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provided needed guidance to law enforcement officers.’ (Stats. 2003, ch. 875, § 1.) Additionally, the Legislature declared that a further purpose of the legislation was to ‘address additional issues that were not included within the act, and that must be resolved in order to promote the fair and orderly implementation of the act.’ (Id., § 1.) [f] To achieve the goal of ‘facilitating] the prompt identification of qualified patients and their designated primary caregivers,’ the Legislature established a voluntary program for the issuance of identification cards to such qualified patients. (§ 11362.71 et seq.) The Legislature extended certain protections to individuаls who elected to participate in the identification card program. Those
Considering that the overall purpose of the MMP is to “broaden the scope of the CUA in order to facilitate greater access to [medical] marijuana” (City of Garden Grove v. Superior Court (2007)
Justice Haerle’s belief that City of Claremont, supra, 177 Cal.App.4th 1153 demonstrates the constitutionality of his interpretation of section 11362.795 (maj. opn., ante, at p. 855 & fn. 15) is totally unsupported by the opinion. City of Claremont was an action to prevent the defendant from operating a medical marijuana dispensary anywhere within the city. The trial court concluded, and the Court of Appeal agreed, that the operation of such a dispensary without the city’s approval constituted a nuisance per se under the city’s municipal code and could properly be enjoined. For a variety of
Furthermore, because “the CUA expressly states that it does not supersede laws that protect individual and public safety . . .” (City of Claremont, supra, 177 Cal.App.4th at p. 1173; see § 11362.5, subd. (b)(2)), such as laws relating to public and private nuisances, the act “did not supersede the City’s moratorium on medical marijuana dispensaries, [which was] enacted as an urgency measure ‘for the immediate preservation of the public health, safety, and welfare.’ [Citation.]” (City of Claremont, at p. 1173.)
City of Claremont is predicated on the principle that “legislative enactments related to the subject of an initiative statute may be allowed” when they involve a “related but distinct area” (Mobilepark West Homeowners Assn. v. Escondido Mobilepark West (1995)
Finally, Justice Haerle’s reconstruction of section 11362.795 is really beside the point, because the procedure prescribed by that statute was never undertaken in this case. The court did not treat appellant’s request to be allowed to use medical marijuana while on probation as a request for confirmation that his use of marijuana satisfied the conditions of the CUA,
VI.
Because the trial court made no finding and there is no evidence that appellant’s right to use medical marijuana is not protected by the CUA, and restriction of that right has not been shown to serve any reformative or rehabilitative purpose, I would strike the challenged condition.
A petition for a rehearing was denied January 22, 2010, and the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied March 10, 2010, S179955. Kennard, J., Werdegar, J., and Moreno, J., were of the opinion that the petition should be granted.
All statutory references are to the Health and Safety Code unless otherwise indicated.
As I explain, post, at page 872, footnote 4, driving while under the influence of marijuana, which can be a crime even if the marijuana is used for medical purposes, could have been restricted as a tailored condition of appellant’s probation.
The majority strains to produce doubt about the validity of appellant’s medical marijuana card by suggesting that its recent date indicates it was obtained for improper reasons. However, medical marijuana cards must be renewed annually (§ 11362.745, subd. (a)), and there is no reason to assume from the date of the card that it was not a renewed card, or that appellant
Not all restrictions on the use of medical marijuana are barred by the CUA, because by its own terms nothing in the act “shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others” nor “to condone the diversion of marijuana for nonmedical purposes.” (§ 11362.5, subd. (b)(l)(C)(2).) Thus, for example, an offender believed to have used medical marijuana at a place or in a manner injurious to the health or offensive to the senses of any considerable number of persons, or which obstructs the free passage or use of any public park, can be restricted from doing so as a condition of probаtion, because preexisting law criminalizes such conduct. (Pen. Code, § 370; see also City of Claremont v. Kruse (2009)
Given the circumstances of this case, I need not address the interesting question whether a blanket restriction on the lawful use of medical marijuana or any other prescription drug can ever be imposed as a condition of probation; as where a prescribed medication is persuasively shown to make a particular defendant more likely than he or she would otherwise be to commit criminal acts, or where there is evidence use of the medication otherwise obstructs the reformation and rehabilitation of the defendant. It is enough for me to affirm that, at a minimum, a condition of probation restricting the use of a medication recommended or approved by a physician would have to be based on evidence demonstrating that the restriction served a legitimate penal purpose comparable to that relied upon in Peck, supra, 52 Cal.App.4th 351, which involved the use of marijuana for purposes that were not medicinal.
People v. Keller, supra,
Justice Arabian, whose concurring opinion in Welch was joined in by Justice Kennard, suggests appellant’s challenge could be made even if he had not objected below, because he challenges the unlawfulness, not merely the unreasonableness, of the condition. (Welch, supra,
Contrary to the intimation in the majority opinion (maj. opn., ante, at p. 851), our opinion in Brewer, supra,
None of the three other cases cited by Justice Richman (People v. Manriquez (1922)
The Attorney General also contends that, “[i]n the mind of a counseled criminal defendant entering into his plea bargain and in law, the judgment is the probation order containing the terms and conditions set by the court.” (Italics added.) Unlike the Attorney General, I cannot believe criminal defendants know or are told by counsel that any unspecified probation condition later imposed by the court would be unappealable because technically it is a component of the judgment.
Because Justice Haerle speaks only for himself on this issue and his interpretation of section 11362.795 is therefore not authoritative, it is appropriate to explain why the portions of his opinion and mine addressing this statute were not excluded from the opinions certified for publication. First, though section 11362.795 was enacted seven years ago, it has never previously been interpreted in a published opinion. The statute has, however, been interpreted and applied in a significant number of unpublished and therefore noncitable opinions. (Cal. Rules of Court, rule 8.1115.) Because published opinions construing the statute do not exist, and the unpublished opinions that do are easily obtained by interested lawyers and judges, the