Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC143401
STEIN, J.
On September 1, 2005, defendant, then 19 years old, was charged with residential burglary (Pen. Code, § 459) and receiving stolen property (Pen. Code, § 496, subd. (a)). The charges followed defendant’s arrest for breaking through the locked front door of the home of an acquaintance, and taking a two-foot-tall marijuana plant, two dried brown poppy pods and an 18-inch folding knife. Defendant explained “he was ‘pissed at the victim’ because of statements made by the victim about the defendant’s girlfriend.” Defendant pleaded guilty to the charge of receiving stolen property. The charge of burglary was dismissed with a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.) The matter was put over for sentencing and referred to the probation department for a sentencing report.
Defendant’s probation officer noted defendant had an extensive history of criminal conduct as a juvenile, but this was his first crime as an adult offender. Defendant’s record as a juvenile included referrals for substance abuse, possession of paraphernalia, possession of marijuana and possession of marijuana for sale. Defendant reported he did not use alcohol, but regularly used marijuana “to help him deal with stress, sleeping and his appetite.” He had been a chronic user of methamphetamine, but stated he no longer used that substance. He had experimented with cocaine and mushrooms. Defendant had been provided with numerous drug treatment opportunities as a juvenile but had not participated in drug treatment as an adult. Defendant’s probation officer believed defendant’s “main issue” to be his substance abuse. He recommended defendant be placed on supervised probation, asserting, “However, it also appears necessary . . . to provide the defendant with the necessary life-skills that will enable him not only to live a law-abiding life but also to adequately deal with his apparent substance abuse issues. Without such tools, the defendant is likely to continue with his criminal behavior.”
On January 30, 2006, the court suspended imposition of sentence and placed defendant on probation for a period of three years on the condition, among others, he not use, transport or possess any nonprescribed or illegal drugs or associated paraphernalia, and that he enroll in a treatment program as directed by his probation officer.
In June 2006 defendant tested positive for marijuana use. Defendant then sought and obtained a form letter from Peter Cotsirilos, M.D., reporting Dr. Cotsirilos had examined defendant and “[h]e/she was found to have a medical condition, that in my professional opinion, would benefit from the use of medical cannabis.” Dr. Cotsirilos’s letter provides no further details, neither identifying the “medical condition” from which defendant was found to suffer nor the basis for Dr. Cotsirilos’s opinion defendant’s medical condition would benefit from the use of medical cannabis. Defendant’s probation officer told defendant to obtain a state-issued medical marijuana card, later explaining the policy of the probation department was “not [to] violate” cardholders for using marijuana. It appears defendant again tested positive on August 14. Defendant, presumably, had not obtained a marijuana card, as proceedings then were instituted to revoke his probation.
The trial court, citing Health and Safety Code section 11362.795, declined to revoke defendant’s probation for his past use of marijuana, but modified the terms of probation to prohibit defendant from using marijuana without a court order indicating defendant had no other alternative. Defendant appeals, contending the modified condition of probation was arbitrary and capricious and constituted an abuse of the trial court’s discretion.
All further statutory references are to the Health and Safety Code.
For the reasons we will state, we find neither error nor abuse of discretion in the court’s decision to refuse defendant’s request to modify the terms of his probation to allow him to use medical marijuana. We also find nothing wrong in advising defendant he might wish to make some showing he suffers from a condition that cannot be alleviated without the use of medical marijuana. That advice, however, should not have been made a “condition” of probation, and we therefore strike the condition, modifying the order so that it denies the People’s petition to revoke probation, denies defendant’s request for modification of probation and modifies the condition of defendant’s probation to prohibit defendant from using, transporting or possessing any nonprescribed or illegal drugs, or any marijuana, or associated paraphernalia, and that he enroll in a treatment program as directed by his probation officer.
As so modified, we affirm the order.
Discussion
Medical Marijuana
Sections 11357 and 11358 make it a crime to possess or cultivate marijuana. In 1996, the electors approved an initiative that added section 11362.5, the Compassionate Use Act of 1996, to the Health and Safety Code, with the purpose, in part, of ensuring “that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.” (§ 11362.5, subd. (b)(1)(A).) An additional purpose of the act is to “ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.” (§ 11362.5, subd. (b)(1)(B).) To these ends, section 11362.5, subdivision (d) provides, “Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” The Supreme Court, in People v. Mower (2002) 28 Cal.4th 457, explained that “[a]s a result of the enactment of section 11362.5(d), the possession and cultivation of marijuana is no more criminal—so long as its conditions are satisfied—than the possession and acquisition of any prescription drug with a physician’s prescription.” (Id. at p. 482.)
Section 11362.5 provides in full:
It follows section 11362.5 may provide a defense to probation revocation proceedings instituted as a result of a defendant’s use or possession of marijuana. In People v. Tilehkooh (2003) 113 Cal.App.4th 1433 (Tilehkooh), the defendant was found guilty of the misdemeanor offense of possession of marijuana. (Id. at pp. 1435-1436.) He was placed on probation on the conditions, among others, he obey all laws, and not possess or consume controlled substances. (Id. at p. 1438.) The defendant obtained a letter from a physician recommending cannabis use for his medical condition. He showed the letter to his probation officer together with a marijuana user’s identity card. Notwithstanding the letter, the trial court revoked the defendant’s probation for possession and use of marijuana after the defendant tested positive for marijuana consumption. (Id. at pp. 1438-1439.) The Court of Appeal reversed. It recognized that by reason of section 11362.5, defendant’s use of medical marijuana violated no state law. The court reasoned that as a purpose of section 11362.5 is to ensure that qualified medical marijuana users are not subject to criminal prosecution or sanction as a result of their use of medical marijuana (§11362.5, subd. (b)(1)(B)), and as probation revocation is a criminal sanction, “[s]ection 11362.5 provides a ‘defense in court’ in a probation revocation proceeding because if successful it would obviate any need for the criminal sanction of revocation.” (Id. at p. 1443.)
That conduct is not criminal, however, does not prohibit a sentencing court from imposing a condition of probation forbidding the conduct where the totality of the circumstances warrants imposing that condition. “In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.] ‘The court may impose and require . . . [such] 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.’ [Citation.]” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) “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 . . . .’ ” (People v. Lent (1975) 15 Cal.3d 481, 486.) “[P]robation conditions which regulate conduct ‘not itself criminal’ [must] be ‘reasonably related to the crime of which the defendant was convicted or to future criminality.’ [Citation.] As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or ‘ “ ‘exceeds the bounds of reason, all of the circumstances being considered.’ ” [Citations.]’ [Citation.]” (People v. Carbajal, supra, at p. 1121.)
In People v. Bianco (2001) 93 Cal.App.4th 748 (Bianco), the defendant pleaded guilty to a felony charge of cultivating marijuana, and later was placed on probation. Before the sentencing hearing, the defendant obtained a recommendation from a physician that he use marijuana to help alleviate pain the defendant was suffering due to serious medical problems. The trial court nonetheless imposed a condition that the defendant not use or possess any controlled substances unless prescribed by a physician, and that he not use or possess marijuana. (Id. at pp. 750-751.) The appellate court upheld the condition, in part because federal law makes possession of marijuana a crime even if state law does not. (Id. at p. 753, citing 21 U.S.C. § 844 & federal cases recognizing there is no medical necessity defense under federal law for marijuana.) It reasoned the condition therefore was directed at the defendant’s future criminality, and, accordingly, was valid. (Id. at pp. 752-753.) The court further explained that even apart from federal law, it would uphold the condition, finding it to be directly related to the defendant’s criminal conduct of unlawfully cultivating marijuana and also to the goal of ensuring defendant did not commit subsequent criminal offenses. It took note of evidence suggesting defendant was susceptible to drug addiction, finding, “Under these circumstances, the probation condition is reasonably related to the goal of precluding future criminal (and nonmedical) use or possession of marijuana.” (Id. at p. 754.)
The court that decided Bianco later backed away from the suggestion a California court can or should condition probation on obeying federal laws, pointing out California courts are neither obligated nor authorized to enforce federal law. (Tilehkooh, supra, 113 Cal.App.4th at pp. 1445-1446.) The concurring and dissenting opinion in Bianco also disputed the majority’s conclusion the defendant could be barred from lawfully possessing marijuana for valid, medicinal purposes “simply out of concern that he also may possess marijuana for nonmedical purposes.” (Bianco, supra, 93 Cal.App.4th at p. 756.) Nonetheless the Bianco court’s basic premise remains valid: that an individual is legally entitled to use or possess a substance does not, in and of itself, make it an abuse of discretion for a sentencing court to prohibit the individual from using or possessing a substance.
The court in Tilehkooh reasoned, “Since the state does not punish a violation of the federal law ‘as such,’ it can only reach conduct subject to the federal criminal law by incorporating the conduct into state law. The People do not claim they are enforcing a federal criminal sanction attached to the federal marijuana law. Rather, they seek to enforce the state sanction of probation revocation which is solely a creature of state law. [Citation.] The state cannot do indirectly what it cannot do directly. That is what it seeks to do in revoking probation when it cannot punish the defendant under the criminal law.” (Tilehkooh, supra, 113 Cal.App.4th at pp. 1445-1446.)
Presiding Justice Scotland, in concurring and dissenting from the majority in Bianco, reasoned, “It seems to me that, if we consider only California law, which permits the cultivation and use of a limited amount of marijuana for medicinal purposes, the condition of probation that prohibits defendant from possessing or using any marijuana is not reasonably related to future criminality. The People do not contest defendant suffers from chronic pain resulting from cervical and lumbosacral disk disease; that he has ‘not responded to any of the usual medications prescribed for neuropathic lumbrosacral pain’; but that his pain is ‘relieved by the use of cannabis.’ Under this circumstance, if marijuana were not illegal under federal law, I believe that compelling defendant to forgo possessing and using the only substance that purportedly has relieved his chronic pain is not justified by the concern that he will possess marijuana for nonmedicinal purposes in the future. Balancing the evils—chronic pain versus the possibility of future possession of marijuana for purposes other than compassionate use—it would be unreasonable to bar defendant from lawfully possessing marijuana for medicinal purposes simply out of concern that he also may possess marijuana for nonmedical purposes, a possibility that is adequately addressed by the threat of future criminal prosecution.” (Bianco, supra, 93 Cal.App.4th at pp. 755-756 (conc. & dis. opn. of Scotland, P. J.).)
It is true section 11362.5 speaks of the “right to obtain and use marijuana.” (§ 11362.5, subd. (b)(1)(A).) That “right,” however, is not unqualified. Section 11362.5 itself warns against any assumption it creates an absolute immunity from criminal sanctions for the possession or use of marijuana, providing in subdivision (b)(2), “Nothing in this section 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.” The point was recognized in Tilehkooh, where in striking down the condition, the appellate court was careful to point out the sentencing court had made no claim that the defendant’s use or possession endangered others or that the defendant diverted marijuana for nonmedical purposes. (Tilehkooh, supra, 113 Cal.App.4th at p. 1440.)
We conclude sentencing courts retain the discretion, in appropriate cases, to regulate or even to prohibit the use of medical marijuana notwithstanding that a defendant has a doctor’s prescription for marijuana. As recognized by the court in Tilehkooh, supra, 113 Cal.App.4th 1433, the court does abuse its discretion by imposing a condition of probation that has no rehabilitative purpose other than to prevent the defendant from using medical marijuana and the only “future criminality” of concern is that the defendant might continue to use medical marijuana. In addition, the court may not substitute its opinion for the physician’s as to whether the defendant suffers from a medical condition, or whether the defendant’s suffering will be alleviated by the use of medical marijuana, or whether medical marijuana is the substance best suited to alleviate that suffering. It does not, however, follow that the court may not impose a condition of probation limiting or prohibiting the use of medical marijuana simply because a doctor concludes it will be of benefit to a defendant. That a doctor has prescribed the substance is a factor for the court to consider, but the doctor’s concerns are not the same as the concerns of a sentencing court. The doctor seeks to treat the patient. The court seeks to rehabilitate the defendant and to protect the public. Section 11362.5 does not require the sentencing court to blind itself to the defendant’s needs, addictions or circumstances or to the circumstances of the crimes of which the defendant was convicted simply because a physician recommends medical marijuana, any more than a court would be required to ignore those factors simply because a physician prescribes some other medication or drug. Were it otherwise, a court quite reasonably might choose to impose a prison term in lieu of probation in order to protect the safety of the public.
Section 11362.795As discussed above, a defendant is entitled to raise section 11362.5 as a defense to proceedings to revoke probation for marijuana use. Section 11362.795 also provides a method by which a defendant may seek a modification of an existing probation condition, providing, in relevant part:
“(a)(1) Any criminal defendant who is eligible to use marijuana pursuant to Section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation or released on bail.
“(2) The court’s decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court.
“(3) During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana.
“(4) The court’s consideration of the modification request authorized by this subdivision shall comply with the requirements of this section.”
Section 11362.795 uses the term “confirm” in subdivision (a)(1), but for all the reasons we have discussed, we do not read it as creating a mandatory duty on the part of the court to modify probation to permit the defendant to use marijuana. Rather, in the context of the entire section, and the statutory scheme, “confirm” means only that the court has the discretion to confirm a defendant’s claim that he or she is entitled to use marijuana.
Application of Law to Facts of This Case
Defendant’s crime involved the theft of a marijuana plant and two poppy seed pods. Although he stated he committed the crime to avenge an insult to his girlfriend, he could have avenged that insult many different ways. That he chose to take a marijuana plant and poppy seeds indicates his interest in mind-altering substances and his willingness to commit crimes in order to obtain them. Defendant’s probation officer believes defendant’s problems with substance abuse, and marijuana in particular, are a significant factor in his criminality, and defendant’s criminal history as a juvenile clearly supports that belief. It follows there is reason to conclude defendant’s marijuana use is directly related to his crimes and criminality, and substantial reason for prohibiting defendant from using marijuana wholly apart from the fact that marijuana use might be illegal in and of itself. On the other side of the balance is Dr. Cotsirilos’s recommendation. As discussed previously, a sentencing court should not substitute its opinion on medical matters for that of a defendant’s treating physician, but the court also need not read more into the recommendation than is stated. Here, there is little in the record to suggest defendant will suffer any harm from a probation condition prohibiting him from using marijuana. Dr. Cotsirilos did not identify the condition from which defendant suffers, the severity of that condition or whether marijuana provides the only, or even the best, form of relief for defendant’s condition. Defendant claimed only that he used marijuana to help him deal with stress, sleeping and his appetite. Under the circumstances, we find neither error nor abuse of discretion in the trial court’s decision to deny defendant’s request for a confirmation he is entitled to use marijuana or for a modification of the conditions of probation to allow defendant to use or possess medical marijuana.
Section 11362.5 provides little limitation on the type of medical condition allowing for the use of medical marijuana, stating a purpose of ensuring that “seriously ill” Californians have the right to obtain and use marijuana for the treatment of certain specified conditions, but also for “any other illness for which marijuana provides relief.” (§ 11362.5, subd. (b)(1)(A).) Later legislation establishing a program for issuing identification cards requires a person seeking a card identifying that person as a person authorized to engage in the medical use of marijuana, to provide written documentation by his or her attending physician that the person has been diagnosed with a “serious medical condition.” (§ 11362.715, subd. (a)((2).) Section 11362.7, subdivision (h) provides a list of medical conditions deemed “serious,” which, by reason of subsection (12), includes “[a]ny other chronic or persistent medical symptom that either: [¶] (A) Substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans with Disabilities Act of 1990 (Public Law 101-336). [¶] (B) If not alleviated, may cause serious harm to the patient’s safety or physical or mental health.”
The court’s order, however, went beyond a simple denial of defendant’s request, purporting to add a condition prohibiting defendant from using marijuana unless he obtains a court order showing he has no alternative to that use. This “condition” does not actually require defendant to do, or to refrain from doing, anything. Rather, it appears to be an effort by the court to advise defendant of what he must or should do to obtain a modification. That advice has no place in a probation condition. There also is no reason to fashion a condition that effectively directs a future tribunal how it should rule if defendant again requests a modification of probation. We therefore affirm the order denying defendant’s request for a modification of probation, but modify the condition so that it reflects the apparent intention of the court to prohibit defendant from using marijuana at this time notwithstanding Dr. Cotsirilos’s recommendation. Defendant, of course, remains free to seek modification again under section 11362.795.
Disposition
The court’s order is modified to deny the People’s petition to revoke defendant’s probation, to deny defendant’s request for a modification of probation and to modify the condition of probation to prohibit defendant from using, transporting or possessing any nonprescribed or illegal drugs, or any marijuana, or associated paraphernalia, and to require that he enroll in a treatment program as directed by his probation officer. As so modified the order is affirmed.
We concur: MARCHIANO, P. J., SWAGER, J.
“(a) This section shall be known and may be cited as the Compassionate Use Act of 1996.
“(b)(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:
“(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
“(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.
“(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.
“(2) Nothing in this section 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.
“(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.
“(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.
“(e) For the purposes of this section, ‘primary caregiver’ means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.”