In re Joshua C.
Filed 8/6/13 In re Joshua C. CA1/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
In re Joshua C., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
Joshua C.,
Defendant and Appellant.
A136438
(Del Norte County
Super. Ct. No. JDSQ-11-6048)
Appellant
Joshua C. was found by the juvenile court to have illegally possessed marijuana
and was declared a ward of the court.
Joshua’s continued illicit use of marijuana was revealed in several
subsequent drug tests, resulting in multiple violations of his probation. Joshua sought to modify the terms of his
probation to allow use of marijuana for medicinal purposes. Following an
motion. We conclude the court acted well
within its discretion in doing so. We
also reject Joshua’s claim of ineffective assistance of counsel and affirm.
I. Background
On January
6, 2011, Joshua (then 14 years old) was discovered with marijuana and drug
paraphernalia in his backpack on school grounds. The backpack contained a zip lock bag holding
46.2 grams of marijuana, a small metal pipe with burned and unburned residue, a
lighter, rolling papers, and a “Keef (Kief) grinder.†Joshua told a school official another student
had put the items in his backpack and that he did not use marijuana. Joshua’s wallet, however, was decorated with
pictures of marijuana leaves and Joshua’s mother (Mother) reported that this
was not Joshua’s first involvement with marijuana.
On
March 23, 2011, the Del Norte County Probation Department (Probation)
filed a juvenile wardship petition pursuant to Welfare and Institutions Code
section 602, subdivision (a), alleging that Joshua committed
misdemeanor possession of more than 28.5 grams of marijuana (Health & Saf.
Code, § 11357, subd. (c)).
crime.
According
to the disposition report, Mother told Probation that Joshua suffered from
(ADHD) and “minor†autism, and he had trouble controlling his anger. She had taken him off prescribed medication
when he was about 12 years old. Joshua
said he started smoking marijuana when his prescription medications were
stopped and that he found marijuana to be more effective in controlling his
behavior. It alleviated his mental
health issues, anxiety and anger, and helped him sleep better at night. Probation opined that Joshua was
inappropriately self-medicating with marijuana and should return to his
prescription drugs and attend counseling.
At the May 2011 disposition hearing, the court declared Joshua a
ward of the court and placed him on probation in his parents’ home. He was ordered to obey all laws and submit to
drug testing.
On July 16,
2011, Joshua stole a bottle of alcohol from a Safeway grocery store and
violated a local curfew for minors. On
July 18 and 25, he failed to submit to drug testing. Probation filed a
Welfare and Institutions Code sections 602, subdivision (a) and 777
(July 27 Petition), alleging that Joshua had committed misdemeanor theft
of alcohol from Safeway (Pen. Code, §§ 484, 488), misdemeanor
violation of curfew (Crescent City Mun. Code, § 9.04.010), and misdemeanor
possession of alcohol (Bus. & Prof. Code, § 25662), and violated the
terms of his probation by failing to provide urine samples on July 18 and July
25. Joshua admitted the charges. On July 26, Joshua violated the curfew
imposed by his conditions of probation, and on August 8 he tested positive
for marijuana. Probation filed another
supplemental petition (August 15 Petition) alleging these violations of
probation, which Joshua admitted in September.
First Request for Permission to Use Medical Marijuana
An
October 2011 disposition report on the July 27 and August 15
Petitions states that Joshua had been prescribed medical marijuana to treat his
ADHD. “[Mother] reports that she is
[Joshua’s] caregiver and eventually plans to learn to cook with the marijuana,
but until then she has been providing marijuana to [Joshua] to smoke.
. . . [S]he does not want to treat [Joshua’s] ADHD with a stimulant,
such as Ritalin . . . .
She feels the side effects of taking Ritalin are too dangerous for
[him]. However, [Joshua] is currently
taking Wellbutrin to treat his depression which is considered a
stimulant.†Probation expressed serious
concerns about Joshua’s use of medical marijuana, citing information from the
American Council for Drug Education that smoking marijuana is more carcinogenic
than smoking tobacco, and that “marijuana use in teens is particularly damaging
to their learning capabilities and impacts the juveniles[’] ability to master
interpersonal coping skills or make appropriate life-style choices.†Probation noted that Joshua’s original
offense involved marijuana possession on school grounds and that only three of
his 17 drug tests while on probation were clean.
In a
written response to the disposition report, Mother wrote that Joshua was
“severely depressed for which we are treating with the help of his therapist
and medication. He has ADHD, insomnia
and high anxiety which are all part of the package. Our choice, based on his behavior, our family
and medical professionals to treat these is medical use of [cannabis].†She specifically requested a one-month trial
on medical marijuana under her personal supervision: “I will keep a log of how and when I give it
to him. I will not allow him to have any
[cannabis] during school hours. Evenings
seem best so far. He is sleeping well,
staying home with his family and doing his school work without much
provocation. His anger has subsided
considerably. I will also submit my log
to [Probation] weekly to make sure it coincides with his weekly urine test
levels.â€
At an October 12,
2011 disposition hearing, the court (Hon. Philip Schafer) denied her
request. The court continued Joshua as a
ward of the court, continued him in his parents’ home, and, in addition to all
previous orders, directed Joshua not to possess or consume marijuana in any
form. He was also ordered to participate
in alcohol and drug counseling. The
appellate record does not include a reporter’s transcript of this hearing.
On December
12, 2011, Probation filed another supplemental petition alleging Joshua
violated his probation by testing positive for marijuana on November 22 and 29,
2011. On December 14, 2011, Joshua
admitted the allegations. During the
hearing, Mother reported that Joshua was doing very well, getting good grades,
and attending counseling and drug and alcohol treatment, and that he had “cut
off†several people, who apparently were bad influences on him. The court ordered Joshua to spend 48 to 96
hours in juvenile hall for the dirty drug tests and referred him to drug
court. On January 13 and 20,
February 24, March 16, and April 6 and 27, 2012, Joshua was
again ordered to serve time in juvenile hall for testing positive for THC
(marijuana).
Second Request for Permission to Use Medical Marijuana
On
May 2, 2012, Joshua moved to modify the terms of his probation to allow
him to use medical marijuana. In support
of the motion, he submitted several documents:
a physician’s medical marijuana recommendation (MediCann Physician’s
Statement); a letter by his therapist, psychiatric social worker Vincent
Cappello; and declarations by Joshua and his mother. The MediCann Physician’s Statement stated in
its entirety: “This letter is to verify
that I am the attending physician for Joshua [C.] regarding the therapeutic
value of medical marijuana for him/her.
Additionally, this letter verifies that he/she has been diagnosed with a
serious medical condition and that the medical use of marijuana is appropriate
for that serious medical condition. [¶] This letter is a part of the
patient’s permanent record.†The
physician’s statement was signed by Mark Altchek, M.D., and provided the
doctor’s license number, statement date (Sept. 3, 2011), “Time Period
Covered†(until Sept. 3, 2012), clinic location (Eureka), patient
identification number, and patient’s date of birth. The Cappello letter stated that “Current
literature review has supported the use of marijuana to treat A.D.H.D. in lieu
of stimulant medication.†Joshua’s and
Mother’s declarations described Joshua’s medical conditions (mild autism, ADHD,
pain from a 2011 accident where he was struck by an automobile, and
depression), the ineffectiveness and adverse side effects of traditional
medication he had taken for these conditions (Adderall, Wellbutrin, Lexapro and
others, which caused insomnia, intestinal disorders, nausea, and irritability),
and the positive effects he had experienced on marijuana (ability to relax,
focus and sleep well at night; greater self control and less anger and
depression). These improvements occurred
under a regime in which Mother kept possession of the marijuana and gave Joshua
one gram of the drug after school and one gram at bedtime. Mother promised to continue this regime and
to ensure that Joshua did not go to school under the influence of marijuana;
did not go to a public place under the influence except in the company of his
parents; did not share the marijuana with anyone else.
On May 11,
May 25, June 8, June 22, July 6 and July 20, 2012, Joshua
was again ordered to spend time in juvenile hall after he tested positive for
marijuana. The court, however, agreed to
hold a hearing on whether to modify the terms of Joshua’s probation to allow
him to use medical marijuana. The court
advised Joshua, “I can almost guarantee you that if I don’t have a doctor’s
testimony that I find convincing I’m not going to be granting the motion.â€
After
numerous continuances, the hearing was finally held on August 7. Joshua’s counsel was unable to get
Dr. Altchek to testify, and called only Cappello and Mother to testify at
the hearing. Cappello testified that he
had 31 years of experience counseling children and adolescents, and was very
familiar with the literature on medical marijuana and adolescents, having
started his career working with teenagers with dual diagnoses (mental health
and substance abuse). Marijuana, he
testified, “can compound a mental illness or . . . help mental
illness.†For people with Joshua’s
diagnosis—ADHD with racing brain syndrome—treatment is paradoxical: stimulants help them calm down and
concentrate. Similarly, marijuana, which
typically makes people tired or “spacey,†helps people with ADHD and racing
brain syndrome concentrate.
Cappello
cited research by pediatrician Dr. Claudia Jensen of “USC,†by Kort
Patterson, and by the University of California at Berkeley as reported in
and court, Cappello was unable to describe in any detail the research
underlying the reports he cited. The
Jensen paper Cappello cited appeared to be nothing more than an essay written
by a pediatrician about her own children’s use of marijuana to treat ADHD,
published in the Cannabis Culture Forums website, and not in a peer-reviewed
medical journal. Cappello did not know
whether Dr. Jensen had conducted any research into the topic. The Patterson article appeared only on
Patterson’s own website and provided little information about Patterson’s
credentials. Cappello also was unable to
describe in any detail the research discussed in The New York Times news
During his
testimony, Cappello also acknowledged that:
he was not a medical doctor and could not prescribe medication; he did
not have any other minor patients using medical marijuana; opposing views exist
in the research literature on the value of using medical marijuana to treat
ADHD or other conditions in adolescents; the information he had cited was very
recent; he had never before recommended medical marijuana for an adolescent
patient; and it might be impossible to conduct scientifically valid research on
medical marijuana use by adolescents based on a large controlled study because
of legal restrictions. Finally, Cappello
said he recommended marijuana for Joshua because he thought it was worth a try: “I can’t tell you exactly if it’s going to
work, . . . but I would say let’s give this a chance.â€
When the
court asked why Joshua’s primary care physician had not prescribed Joshua
medical marijuana, Cappello said the doctor was not licensed to do so. “[I]t’s a referral process almost like to a specialist.
[¶] . . . [¶] . . . [T]hey have special doctors that they
all go to. . . . I don’t know exactly how it
works . . . .†The
court also asked if any medications other than medical marijuana could be used
to treat Joshua’s problems. Cappello
said he did not know if Joshua had tried a newly available antidepressant drug,
Straterra, with no stimulant component.
Mother
testified she wanted permission to put Joshua on a trial run of small doses of
marijuana that would maintain his THC levels at an “even keel.†When they did that for a while after they
first got the recommendation, his symptoms went away: “He no longer shook. He no longer had heart palpitations. He slept normally. He wasn’t sweating profusely. He could talk. He could articulate. He could focus. [¶] . . . [H]e was
pleasant. He was not angry. I mean, all the physical stuff, he could eat. All the other medications that he took, he
couldn’t eat. He was throwing up all the
time. He was sweating profusely.†Although Joshua continued to use marijuana
illicitly after the court denied the request to allow medical marijuana, his
use was sporadic and thus not effective.
As to her comment at the December 14, 2011 hearing that Joshua was
doing very well, Mother testified that Joshua had made tremendous progress in
the previous year, but she did not mean to imply that he had no problems
whatsoever at that time.
The court
(Hon. William H. Follett) denied the motion.
“When this first came before me, . . . I indicated a great
deal of skepticism about the efficacy of minors using medical marijuana. I indicated that it was contrary to all of
the training that I had received as a juvenile court judge . . . that
it has an effect on the development of [the adolescent] brain that’s
. . . more detrimental than would be safe for an adult. [¶] Nevertheless, the mother
. . . made just a very compassionate and passionate plea to the
Court. And I had indicated that I would
reconsider the judge’s prior ruling . . . , but I thought I made
pretty clear, I wanted to hear from the doctor who recommended it
. . . . [¶] . . . I did not hear from the doctor
today. [¶] . . . [¶] . . . [I]f I would have had testimony
from the doctor who prescribed it that indicated that this really was necessary
and not just conclusions, but gave me facts and reasons for it, I would have
felt different. I also would have been
much more likely to consider the testimony of a primary care physician for
Josh, rather than somebody he went down to and simply paid some money and whose
business it is to write recommendations for marijuana. No indication of why. I don’t know what records he considered.â€
The court
also stated, “I was underwhelmed, to say the least, with the testimony of
Mr. Cappell[o] as being an expert who would convince me to change my
mind. In fact, he confirmed that
. . . the great body of literature is against allowing minors to use
marijuana. [¶] Some of the testimony [Cappello] gave today was fantastic
in my mind . . . which calls into question his credibility. He told me that he was relying upon the
literature. He told me it was published
in peer reviewed journals which appears not to be the case. . . . [¶]
. . . [¶] . . . [A]nother item that
Mr. Cappell[o] testified to that . . . is not true [is] that [a
physician must] have to have some sort of special qualifications to write a
recommendation for marijuana.â€
In sum, “No
clear benefit has been established to this Court to using marijuana. What I have are the anecdotal statements from
the family . . . . Nobody
can really point to me with any scientific basis why marijuana would be helpful
to the ADD. [¶] I’m also very, very conscious of the fact that Josh has a
history of abusing substances. . . . [¶] . . .
[¶] He has frankly not been truthful to us about his use of marijuana in
the past. . . . [¶] . . . I’ve never been told what
would be a therapeutic amount of marijuana in a drug test. . . . [¶]
. . . I have a great deal of sympathy for the parents and what they’re
trying to do. I’m convinced that they are
trying to do what’s best for Josh. But
. . . as his judge, it appears to me that it is a mistake to allow
him to use marijuana . . . . [¶] So the request to modify
his probation terms to allow him to use marijuana is denied.â€
II. Discussion
A. Denial of Motion to
Modify Terms of Probation
Joshua
argues the trial court abused its discretion in denying his motion to modify
the terms of his probation to allow him to use medical marijuana. We find no abuse of discretion and affirm.
“[Welfare
and Institutions Code s]ection 730, subdivision (b) authorizes the
juvenile court to ‘impose and require any and all reasonable conditions that it
may determine fitting and proper to the end that justice may be done and the
ward enhanced.’ A juvenile court enjoys
broad discretion to fashion conditions of probation for the purpose of
rehabilitation and may even impose a condition of probation that would be
unconstitutional or otherwise improper so long as it is tailored to
specifically meet the needs of the juvenile.
[Citation.] That discretion will
not be disturbed in the absence of manifest abuse. [Citation.]â€
(In re Josh W. (1997)
55 Cal.App.4th 1, 5.)
1.
Use as Term of Probation
In 1996,
the California electorate adopted the Compassionate Use Act (CUA;
§ 11362.5), which provides in relevant part: “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.†(§ 11362.5, subd. (d).) The CUA places no express age restrictions on
“patients†who may possess or cultivate marijuana with a physician’s approval
(medical marijuana) and neither the prosecutor nor the trial court questioned
whether it applies to Joshua.
The CUA
does not expressly prohibit courts from imposing conditions of probation
barring the use of medical marijuana.
Its declaration of purpose states that patients have a right to use
medical marijuana and should not be subjected to criminal sanction for doing
so. (§ 11362.5,
subd. (b)(1)(A), (B).) An early
appellate court decision by the Third District, however, held that trial courts
retain their traditional discretion to impose probation terms that prohibit
lawful conduct such as medical marijuana use in appropriate circumstances. (People
v. Bianco (2001) 93 Cal.App.4th 748, 752 (Bianco).) Under the
controlling law, “[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.]†(
(Lent), fn. omitted; see
The
two-judge majority in Bianco reasoned
that, on the facts of that case, the prohibition against all marijuana use was
valid because it was reasonably related to the crime—unlawful cultivation of
marijuana without a physician’s authorization and future criminality—the
diversion of marijuana for nonmedical
purposes and substance abuse, both of which were particular risks for the
defendant based on the factual record.
supra, 93 Cl.App.4th at p. 754.)
One judge, however, disagreed on this point, reasoning, “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 nonmedicinal purposes, a possibility
that is adequately addressed by the threat of future criminal
prosecution.†(Id. at p. 756 (conc. opn. of Scotland, P.J.).) A later decision by the Third District
similarly held, on the facts of that case, that a probation term prohibiting
the use of medical marijuana was not justified under Lent: “A probation condition
. . . must be ‘reasonably related to the crime of which the defendant
was convicted or to future criminality.’
([Lent, at p.] 486.) However, it ordinarily cannot be said that
the treatment of an illness by lawful means is so related.†(Tilehkooh,
supra, 113 Cal.App.4th at p. 1444, parallel citation omitted.) The court observed that “here, there is no
claim that [the defendant’s] conduct endangered others or that he diverted
marijuana for nonmedical purposes.
[Citation.]†(
In 2003,
the Legislature enacted legislation, the Medical Marijuana Program (MMP;
§ 11362.7 et seq.), that at least tangentially addresses the issue before
us. The core of the MMP is a voluntary
identification card scheme, which allows medical marijuana patients and their
caregivers to avoid unnecessary arrest in addition to the CUA’s protection
against conviction for marijuana possession and cultivation offenses. (People
v. Kelly (2010) 47 Cal.4th 1008, 1014.)
As more directly relevant here, the MMP also establishes a procedure
whereby a probationer can request permission to possess or cultivate medical
marijuana during the term of probation:
“(1) Any criminal defendant who is eligible to use marijuana
pursuant to [the CUA] 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.†(§ 11362.795,
subd. (a); hereafter § 11362.795(a).)
This
appellate court district first addressed the propriety of a probation condition
prohibiting use of medical marijuana after the MMP was enacted. (People
v. Moret (2009) 180 Cal.App.4th 839.)
It was a fractured decision. The
lead opinion upheld a probation condition prohibiting medical marijuana use on
the grounds of waiver, reasonableness under the Lent test, and the implication in section 11362.795(a) that
the trial court retained the discretion to prohibit the use of marijuana during
probation despite the CUA. (
853.) The concurring justice relied
solely on the ground of waiver. (
Richman, J.).) The dissenting justice
wrote there was no voluntary waiver, and the record did not support imposition
of the condition. (Id. at pp. 860–862 (dis. opn. of Kline, P.J.).) A few years later, the same division of this
district reached a unanimous panel decision that set forth a three-step
framework for evaluating probation conditions that prohibit the use of medical
marijuana: “First, we examine the validity
of any CUA authorization; second, we apply the threshold Lent test for interfering with such authorization; and third, we
consider competing policies governing the exercise of discretion to restrict
CUA use.†(People v. Leal (2012) 210 Cal.App.4th 829, 837 (
In the
meantime, two other districts addressed the issue of probation conditions that
prohibit the use of medical marijuana.
The Second and Fourth Districts both held that Lent, supra, 15 Cal.3d 481, and section 11362.795(a) supported
the conclusion that courts retain their discretion to prohibit medical
marijuana use as a term of condition. (
1348, 1352; People v. Hughes (2012)
202 Cal.App.4th 1473, 1480–1481 (Hughes).) In both cases, the courts held that the
probation conditions at issue in those cases (which barred medical marijuana
use) were reasonably related to the underlying offenses and to future
criminality because the defendants in the cases had attempted to mask their
illegal activity as CUA-protected activity.
(People v. Brooks, at
p. 1353; Hughes, at 1481.) Hughes,
however, held that the trial court had erred, albeit harmlessly, for
“focus[ing] on whether defendant had a need to use medical marijuana
. . . [and] question[ing] the palliative efficacy of marijuana and
. . . [whether] marijuana is . . . the only medication that
could resolve defendant’s ailments and pain. . . . The trial court’s
concerns effectively question[ed] the wisdom of allowing marijuana to be used
for medicinal purposes. That issue was
resolved in 1996 when voters of this state passed the CUA.†(Hughes,
at p. 1481.)
In sum, all
of the courts that have addressed the issue in published decisions have
concluded that trial courts retain the discretion to prohibit the use,
possession and cultivation of marijuana even if such use is otherwise lawful
under the CUA, as long as they follow the analytical framework of
whether and under what circumstances it is appropriate for a court to question
the wisdom of a defendant’s use of medical marijuana in light of the
electorate’s adoption of the CUA.
guidance on this issue in step three of its three-step approach to evaluating
the validity of probation conditions that bar the use of medical marijuana:
“[L]imiting
medical use of marijuana . . . entails a unique balance of competing
public policies. On one hand, the
step-one conclusion that a defendant has CUA authorization implicates a
voter-compelled policy that qualified patients be allowed to alleviate medical
problems through the use of marijuana.
On the other hand, the step-two conclusion that the relationship of that
lawful use to the crimes the defendant committed, or his or her future
criminality, raises a competing policy consideration: the need to rehabilitate the defendant and
protect the public during his or her release on probation. The resolution of these competing policies
necessarily requires weighing the needs of one against the other before
deciding whether and how much to limit the lawful conduct.
“That
balance will vary widely from case to case.
In an extreme case of need for medical marijuana, for example, the drug
might be an effective and least-harmful way to alleviate debilitating suffering
from end-stage pancreatic cancer.
[Citation.] . . . Far more commonly, of course, the
rehabilitative/protective need could outweigh a lesser medical need, or one
that could be efficaciously met by alternative means.
“We stress
that this third step balancing of competing needs does not allow a court to
question the wisdom of voters or the validity of an unchallenged card or the
underlying medical authorization. The
requisite balancing contemplates a judicial assessment of medical need and
efficacy based upon evidence: the defendant’s medical history, the gravity of
his or her ailment, the testimony of experts or otherwise qualified witnesses,
conventional credibility assessments, the drawing of inferences, and perhaps
even medical opinion at odds with that of the defendant’s authorizing
physician.†(Leal, supra, 210 Cal.App.4th at p. 844; see also
644, 662 [“tension between Prop. 36 and [the CUA] requires a balancing act
for the courts, probation departments, and drug treatment programs,†and “any
restriction of [medical marijuana] use must reasonably be related to [the
defendant’s] specific offense and based on medical evidence addressing [his or
her] medicinal needsâ€].)
The case
before us presents an additional, and significant, element. The appellant seeking to use medical
marijuana is a minor. The general
principles governing probation conditions in
juvenile courts greater discretion than trial courts enjoy in adult probation
cases. (In re Tyrell J. (1994) 8 Cal.4th 68, 81, overruled on other grounds
by In re James P. (2006) 40 Cal.4th
128, 130; In re Binh L. (1992)
5 Cal.App.4th 194, 203.) In
juvenile court, a grant of probation is not an act of leniency, but a
dispositional order made in the minor’s best interest. (In re
Tyrell J., at p. 81.) The court must consider not only the
circumstances of the offense, but also the minor’s entire social history. (Ibid.) The court must also consider the legislative
policies of the juvenile court system, which are to protect the safety of the
public and the minor, to preserve the minor’s family ties whenever possible,
and to address the problem of juvenile delinquency at its inception when minors
are more amenable to rehabilitation, intervening when minors show early signs
of delinquency such as truancy, illiteracy, and drug and alcohol abuse. (In re
Jason J. (1991) 233 Cal.App.3d 710, 714–715, overruled on other
grounds by People v. Welch (1993)
5 Cal.4th 228, 237; In re Kacy S.
(1998) 68 Cal.App.4th 704, 711; see Welf. & Inst. Code, § 202,
subd. (a); Stats. 1989, ch. 1117, § 1, p. 4113.) Moreover, a juvenile offender’s
constitutionally protected liberty interest is qualitatively different from
that of an adult probationer. (
20.) Thus, a probation condition that
might be unconstitutional or improper for an adult may be permissible for a
minor. (In re Tyrell J., at p. 81.)
We
therefore apply a Leal review of the
probation condition here in the context of the juvenile court’s broader
discretion.
2.
The first
two steps of the Leal analysis are
relatively simple to apply in this case. First, Joshua had obtained a physician’s
letter stating that marijuana was appropriate treatment for his medical
condition. Second, Joshua’s offenses
involved the possession or use of marijuana or alcohol, another intoxicating
substance that is unlawful for minors to consume or possess. This is not a case like Tilehkooh where “there [was] no claim that [the defendant’s]
conduct endangered others or that he [used] marijuana for nonmedical
purposes.†(Tilehkooh, supra, 113 Cal.App.4th at p. 1437.) Joshua was found with 46.2 grams of
marijuana in his backpack on school grounds, raising the possibility that other
minors might access the marijuana through sales, sharing or theft. Joshua initially denied use of marijuana at
all, but later admitted personal use. He
did not claim that his use was limited to small doses designed solely to treat
his medical conditions. Joshua also
committed theft related to his illegal possession of alcohol. Prohibiting further marijuana use (as well as
the use of alcohol and all other controlled substances) was therefore directly
related to Joshua’s offenses and to the risk of future criminality, i.e.,
future illicit drug use or sale or related crimes.
The more
difficult task before the juvenile court was the third step of the
to balance the voter-adopted state policy protecting the medical use of
marijuana against the juvenile justice system’s goals of rehabilitation and
protection of society. As
was entitled to assess the weight of the policy protecting medical marijuana
use in the particular circumstances of this case: that is, how important was it for Joshua in
particular to have access to medical marijuana to treat his particular medical
conditions? (Leal, supra, 210 Cal.App.4th at p. 844.) And in the context of a juvenile delinquency
disposition order, the court was free to consider the effect of medical
marijuana on Joshua’s general social development, not only his potential
criminal behavior.
Despite
having advised Joshua’s counsel in advance that it was unlikely to grant the
motion without such evidence, no prescribing or treating physician testified
regarding Joshua’s need for medical marijuana and the physician’s statement in
the record included no information specific to Joshua’s medical
conditions. As the People note, the
evidence did not even show that the physician recommending it actually examined
Joshua. The court was entitled to draw
negative inferences from this lack of evidence.
(See People v. Mower (2002) 28
Cal.4th 457, 464 [when CUA is raised as a defense to marijuana possession or
cultivation charge at trial, defendant has burden of establishing facts
underlying the defense].) Moreover, the
court was entitled to consider the fact, recognized in Leal, that the CUA is subject to abuse and that not all persons
holding CUA recommendations have a legitimate need for medical marijuana. (Leal,
supra, 210 Cal.App.4th at pp. 838–839.) The court reasonably found the testimony of
psychotherapist Cappello, who was not a physician, was not credible on the
issue of whether there was a scientific basis for recommending medical
marijuana as a treatment for Joshua’s medical conditions. It was apparent that Cappello grossly
overstated the factual foundation for his testimony. He admitted that, even under his
understanding of the scientific literature, the value of medical marijuana in
treating ADHD was only a recent and disputed proposition. He also admitted that the drug Straterra was
an untried potential treatment for Joshua’s conditions. Cappello acknowledged research demonstrating
that marijuana use was generally harmful to adolescent development. Thus, the juvenile court could reasonably
conclude that there was little or no evidence that medical marijuana was an
effective treatment for Joshua’s medical conditions and did not pose a risk of
adverse side effects, or that medical marijuana was so superior to other
available treatments that it should be allowed despite its risks.
The court
had also before it an approximately one-and-one-half-year record of Joshua’s
persistent illicit marijuana use as shown by his arrests and drug test
results. His initial arrest was for
possession of 46.2 grams of marijuana, far in excess of the two-gram daily
dosage he later claimed was useful in treating his medical conditions. He either failed to test or he tested
positive for marijuana in July, August and November 2011 and at least once
a month from January to July 2012.
That is, he continued to use marijuana even when ordered not to use the
drug and not only as a medical treatment under his mother’s supervision. Mother could not account for Joshua’s access
to marijuana during much of this period.
She acknowledged he was using it sporadically and in doses greater than
two grams. These facts support an
inference that Joshua was using marijuana not simply for self-medication of his
ADHD and other mental health challenges, but for reasons more typical of
adolescents using the drug. Moreover, Joshua’s
substance use was related to criminal behavior, including the possession and
possible sale or sharing of marijuana on school grounds and the theft of
alcohol from a grocery store. The
juvenile court further reasonably concluded that Joshua was at risk of
addiction to or abuse of marijuana, and that continued marijuana use could
adversely affect his development and possibly lead to further criminal or
antisocial behavior
The court
showed a sensitivity toward Joshua’s challenges and strong sympathy toward his
parents’ sincere attempts to help treat their son’s underlying medical
conditions. That is, the record amply
demonstrates that the court took seriously its charge to balance the policy
behind the CUA against the policy behind rehabilitation and societal protection
in the juvenile justice system. The court denied Joshua permission to use
medical marijuana not because it flatly disagreed with the medical use of
marijuana among adolescents, but because it was convinced that marijuana use in
Joshua’s particular case would impair rather than foster his rehabilitation and
would risk rather than help protect community safety. The court acted well within its discretion in
reaching these conditions.
B. Ineffective Assistance
of Counsel
Joshua
further argues, in the event this court concludes that he failed to establish
his medical need for marijuana at the August 7, 2012 hearing, that he
received ineffective assistance of counsel at the hearing. When an ineffective assistance claim is
raised on direct appeal, we will reverse the conviction only if the record on
appeal affirmatively discloses that counsel had no rational tactical purpose
for his conduct. (People v. Frye (1998) 18 Cal.4th 894, 979–980, disapproved on other
grounds by People v. Doolin (2009) 45
Cal.4th 390, 421 & fn. 22.) We
conclude he has failed to establish such a claim.
Joshua
first faults his attorney for failing to introduce his medical marijuana card
at the hearing, citing Leal’s comment
that such a card is prima facie evidence of CUA protection and satisfies step
one of its three-part test. (
p. 839.) However, as noted
nothing in the court’s ruling suggests that Joshua’s motion was denied on
the ground that he failed to establish that he qualified for CUA
protection. Instead, the court ruled
that the evidence supporting medical marijuana use was outweighed by evidence
that continued use of marijuana would be harmful to Joshua and would impede his
rehabilitation. That is, the court
denied the motion under the principles articulated in step three, not step one,
of the Leal analysis.
Joshua also
faults his attorney for failing to subpoena Dr. Altchek or another
physician who could testify about Joshua’s need for medical marijuana. Nothing in the record, however, demonstrates
that Dr. Altchek, if compelled to testify under subpoena, would have provided
testimony beneficial to Joshua or that beneficial testimony of some other
physician was available. The record
indicates that Joshua’s counsel attempted to contact Dr. Altchek but
encountered resistance. There are
obvious potential tactical reasons for a decision to not subpoena
Dr. Altchek. His testimony might
have been less persuasive than Joshua’s testimony. Dr. Altchek’s testimony might also have
been subject to damaging impeachment, for example about his lack of familiarity
with Joshua and his medical conditions or about the manner in which he conducted
his practice with MediCann.
In sum,
Joshua has failed to establish a claim for ineffective assistance of counsel on
direct appeal because the record on appeal does not affirmatively disclose that
counsel had no rational tactical purpose for his conduct.
The
juvenile court’s August 7, 2012 order denying Joshua C.’s motion to
modify the terms of his probation is affirmed.
_________________________
Bruiniers,
J.
We concur:
_________________________
Jones, P. J.
_________________________
Simons, J.
are to the Health and Safety Code unless otherwise indicated.
the use of medical marijuana, although lawful under state law, violated the
condition that the probationer obey all laws because it remained illegal under
federal law. (Bianco, supra, 93 Cal.App.4th at p. 753; see also
Scotland, P.J.) [concurring on this ground].)
Two years later, however, another panel of the Third District
disagreed: “[S]tate courts do not enforce
the federal criminal statutes. . . . [¶] . . . The
People . . . seek to enforce the state sanction of probation
revocation which is solely a creature of state law. ([Pen. Code,] § 1203.2.) 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.†(People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1445–1446 (
