P. v. Perry
Filed 4/3/13 P. v. Perry CA1/2
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opinion has not been certified for publication or ordered published for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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
BLAINE
PERRY,
Defendant and Appellant.
A134385
(Napa
County
Super. Ct.
No. CR158209)
Blaine
Perry appeals from an order denying his post-judgment
motion under Health and Safety Code section 11362.795
modify his probation conditions to allow his use of medical marijuana under the
Compassionate Use Act of 1996 (CUA) (§ 11362.5) and Medical Marijuana
Program (MMP) (§ 11362.7 et seq.).
We affirm the order.
Background
offense. In an April 10,
2009 negotiated disposition of an
amended complaint in Marin County Superior Court, Perry pled guilty to one
count of assault with force likely to produce great bodily
§ 245, subd. (a)(1)) in return for dismissal of counts for corporal
injury on a cohabitant and making terrorist threats (Pen. Code, §§ 273.5,
subd. (a), 422). All charges
involved an attack on a woman identified confidentially as Jane Doe, and a
of the dismissed counts at sentencing.
Sentencing
on May 27, 2009, proceeded with little documentation of the crimes. Perry had waived a
waived a presentence report that a referral to probation had not yet
produced. Letters from Doe and her
mother focused on victim impact, not the crime facts.
Deputy
District Attorney A. J. Brady stated:
“With regard to the facts of this case, this case settled before
preliminary examination, so I don’t know how much the Court knows or remembers
about it. I would like to just give a
summary. The confidential victim in this
case Mr. Perry had formerly had a dating relationship, although that dating
relationship had terminated prior to the incident date.
“On
the incident date [she] was contacted because the defendant showed up to work
severely intoxicated. He is a care
provider, a job which the confidential victim arranged for him to have. She’s also a care provider for people with
disabilities. Apparently, he showed up
intoxicated. She was contacted because
she is his supervisor.
“She
picked him up. On the ride home to her
residence in San Rafael the defendant began making threatening statements. Specifically through the ride between being
picked up and to the confidential victim’s apartment, the defendant indicated
that he was going to get people to shoot up the place, call his friends. He was calling, it appeared, to the
confidential victim, that he was calling people on cellphones saying they could
come over and shoot her, shoot up the place.
“When
they arrived back at the apartment, she ran [inside], and he began making a
scene outside of the apartment, again similarly appeared to be talking on the
phone making those same sort of threats.
Eventually, in order to pacify him, she opened up the front door of the
apartment in order to pack up his stuff because they had broken up, and she
wanted his stuff out of the house.
“Inside
the bedroom the defendant began throwing items around, including compact
disks. Some of those . . .
struck the confidential victim. The
defendant then pushed the victim on the shoulders onto the bed. He then straddled her with one leg between
her legs, and one leg on the outside and began choking her. According to . . . an interview I
conducted with her, he indicated that at that time he was saying he should kill
her or he should rape her. But actually
he needed a ride back home later on so he wasn’t going to rape her right
then. And he also indicated that he
should call his friends to come up and rape her. And the victim indicated she was having
difficulty breathing as a result of that.
“After
the defendant let go, again the victim tried to move him out of their residence
and continued to move stuff out of the apartment. Once they were both outside of the apartment,
she locked the door behind her, and again the defendant put his arm around her,
this time in sort of a headlock maneuver where her head was in the nook of his
arm, and again choked her actually lifting her up off the ground at this
point. She ran away and got in the car
and drove off and called the police.
“The
victim was quite distraught both at the scene and has been since. I think that the Court probably has a good
feel for that from the victim impact letters, as the impact on her has been
tremendous.â€
Brady
then advanced his sentencing preferences, advising the court about prior
arrests and other sentencing factors he could, given lack of a written report
evaluation, noting that Perry’s insistence on proceeding without one might
deprive the court of factors favorable
to the defense. In proposing conditions
of probation, and again lamenting the lack of formal evaluation, Brady
proposed: “But being that I at least
know that he showed up on this particular day so intoxicated he needed to be
taken away from his place of work, that the defendant not use, possess, or
transport alcohol or illegal substances including prescribed marijuana without
being authorized by the Court. And
similarly, in order to enforce that, the defendant be required [to] submit to
chemical testing at the request of any peace officer or probation officer.â€
Defense
counsel Kimberly Fitzgerald did not dispute any of Brady’s factual
representations but added some of her own, saying her client was remorseful,
accepted responsibility, had had time in custody to reflect on what happened,
was young at age 23, would use a 52-week domestic
violence course to “help him deal better with relationships in the future,â€
would improve his parenting skills for a small son, did not intend to see or
contact Doe again, and planned to live in Sonoma.
On
the facts of the charges, Fitzgerald added, referencing police records: “He’s—to just take a moment to address some
of the facts that the District Attorney discussed in this case, the facts as laid
out sound really bad. And I think there
is always . . . two sides of a story.
And this is not to minimize or condone anything that happened, but just
to try to give the Court some perspective.
“There
were photographs taken by the police officers in this case. There is no injury. There is no alleged bite mark on her
cheek. There’s no injury showing that. There’s no broken skin. There’s no scratch. There is no redness really around the
neck. And there’s—the District Attorney
mentioned that the fact that he had indicate that he was going to kill her or
have friends kill her or rape her, what she first told the police after the
incident . . . was that he was going to kill her. Then nine days later when she talked to the
District Attorney, then it changed to that he was going to rape her, have his
friends come and rape her. So,
there’s—there’s some differences in—in her story.[
“She’s
very young. She’s 20 years old. She just came out of a three year
relationship. There’s—there’s something
that between what was stated to the police officers and—and the District
Attorney and what the photographs and evidence show that everything does not
really quite seem to—to match up in this case.â€
Perry’s
briefing can be construed as taking issue with reliance by the Attorney General
on Brady’s representations about the charges, at least as to Perry’s
intoxication, but the reliance is proper.
Unsworn statements by counsel do not ordinarily constitute evidence (
33 Cal.App.4th 1422, 1426), but these attorney representations, on both
sides, were offered in lieu of a presentence report and, while not formally
stipulated as such, were meant for the court to rely on as evidence. The court also understood the representations
that way, expressly relying on what had been said, and prefacing its ruling by
saying: “Well, I am at somewhat of a
disadvantage . . . without a probation officer’s report, but I think
between what you both have said, as well as the letter from the victim and her
mother, I think I have a fairly good understanding of—of the underlying
facts.†Lack of objection by either
attorney to the other’s representations further justifies reliance on the
statements. (Cf. People v. Medina (1995) 11 Cal.4th 694, 731.)
The
court suspended imposition of sentence and placed Perry on four years’
probation, with terms that he: serve
nine months in local custody; not contact the victim; participate in any
treatment or counseling directed by the probation officer; and not use or
possess any “illegal substances, including prescribed marijuana, unless
specifically authorized by the court.â€
The court explained in part: “I
do believe that given what I understand to be the fact, that as this event
unfolded—as it began, I should say, the defendant was under the influence,
apparently, of alcohol or some other substance.
I think the terms that relate to that are appropriate.â€
In
June 2011, after Perry moved to Napa, the case was transferred to Napa County
on motion of the probation department (Pen. Code, § 1203.9).
violation. On November 10,
2011, a petition to revoke probation was filed in Napa County Superior Court
alleging that Perry “[f]ailed to successfully complete a 52 week domestic
violence anger management counseling program†and “[s]ubmitted a positive drug
test on August 29, 2011 and November 3, 2011 for THC†(
69 Cal.App.4th 409, 413 [tetrahydrocannabinol (THC) is the primary
intoxicating ingredient in marijuana]). Probation was denied summarily that
same day, and counsel was appointed for him for entry of his denial at a
hearing on November 21. His counsel
informed the court at that hearing that Perry said he had “at some point now,
signed up for his anger management and has begun that,†and Perry had already
filed a motion, acting as his own counsel, that he be allowed to use medical
marijuana under the CUA while on probation.
The motion did not include any medical authorization, or sworn particulars. It presented general information printed from
the Web on spondylolisthesis, a medical condition described as one or more
vertebrae of the spine shifting forward or backward, copies of provisions of
the CUA and MMP and the decision in People
v. Tilehkooh (2003) 113 Cal.App.4th 1433 (Tilehkooh), plus written instructions Perry had gotten from Kaiser
Permanente on exercises to do for the condition.
At
a hearing on December 21, 2011, Perry admitted the probation violation,
agreeing to the petition’s request that probation be reinstated with a further
90 days of jail stayed pending completion of a 52-week program. He had begun an anger management program,
Healing in Progress, on a referral from probation. Defense counsel mentioned the violation as
being failure to complete such a program, but nothing in the record shows that
Perry’s admission to the probation violation was limited to that ground. On the pending pro per request to use medical
marijuana, defense counsel represented that Perry had a medical marijuana card
in Marin County that satisfied probation there, but that his probation officer
in Napa County required that he get court approval. The court noted lack of a doctor’s
recommendation with the motion, and the probation department was recommending
denial because Perry had not provided medical marijuana documentation and, in
fact, had provided documents showing that his primary care provider recommended
exercises and prescribed naproxen as need for pain, but not marijuana. The court ordered the request “[d]enied
without prejudice†and urged Perry to get proper documentation. Perry does not challenge that denial on
appeal.
medical marijuana request. Perry
filed a second pro per request on December 21, 2011, and the matter was
heard on January 6, 2012. One of
the documents filed with the court was a memorandum from probation that
discussed none of Perry’s showing but recommended denial because the minute
order denying his original request had been denied “without prejudice.†No one relied on that absurd bit of circular
reasoning. The focus, rather, was on the
showing made.
The
showing, treated cumulatively to the first, included a “Therapeutic Cannabis
Recommendation†of May 26, 2011, by Richard Lenson, MD, of
Compassionate Health Options, reciting in part that Perry was examined and
found to have “a medical condition that in my professional opinion would
benefit from the use of medical cannabis.â€
The entire document is printed, except for the patient, date, signature,
and a cryptic diagnosis of “724.2, seasonal allergies.†The “724.2†is not explained in the record,
but the parties agree that it is medical code for lumbago, i.e., lower back
pain. (See Find-A-Code,
Jan. 18, 2013].)
A
second new document is a December 21, 2011, letter from
Huma Imtiaz Sadiq, MD, of The Permanente Medical Group, Inc., in
Vallejo. Naming Perry, it states: “The above named patient is seen for chronic
back pain and is diagnosed with mild vertebral body wedging and that might have
led to the disc bulge at L5-S1 per MRI.
Patient has been using NSAIDs[
for pain control and also being referred for the physical therapy.â€
Deputy
District Attorney Jodi Dell urged denial, reasoning in essence that: the recommendation was “questionable†since
it was not from a doctor who was regularly treating Perry for his condition;
his “Kaiser doctor†had not said that marijuana was needed; no other doctors
treating Perry, and nothing in his initial 30 pages of material, had urged
marijuana use; with Perry required to do drug testing on probation, it would be
“problematic for him to be able to use medical marijuana and submit to
testingâ€; and marijuana was still unlawful under federal law.
Perry,
acting as his own counsel, presented no declarations or other sworn testimony
to bolster his showing, but said he was “no longer eligible for Kaiser,†his
mother’s insurance plan, because he had turned 26 years old, that his own part
time work at a store did not provide health benefits, and that medical
marijuana was “the only medication that I will be able to seek out.†Queried by the court whether marijuana would
be more expensive than his regular doctor’s recommendation of
“anti-inflammatories, like Advil, and Alleve [sic], and things like that,†Perry offered (still unsworn): “The pills that she was giving me and stuff,
because just regular Advil or Tylenol I’ve take [sic] before when I was younger when I first started going to Kaiser
for my back problem, and the ones they’re giving me, they either made me sick
or they gave me intense heartburn. So
they kept switching me from medications, and they started putting me on
these. But the same thing is happening. It’s just not—it’s not really taking care of
the pain. It’s just sub—I mean in the past
they haven’t worked, and I don’t want to take Vicodin. I don’t want to get started on something like
that. [¶] She—my doctor
agrees with me. I’ve talked to her about
my use of medical marijuana. She doesn’t
promote it. She doesn’t deny it. [Sic.]
She just, you know, if it helps me
complete my daily routines, and you know, go to work, and be able to stand, and
then come home and be able to take care of my chores at home, then she finds
that it’s okay for me to do it if I feel that it’s fine.â€
The
court ruled: “I’m going to follow the
recommendation of probation. I’m going
to deny your request. I’m just not
satisfied with what you’ve presented here that there is a sufficient basis for
me to allow you to consume medical marijuana during your probationary
period. [¶] So the
request is denied.â€
Discussion
into limiting CUA use of marijuana by a probationer. First, we examine the validity of any CUA
authorization; second, we apply the threshold Lent test [(People v. Lent
(1975) 15 Cal.3d 481, 486 (Lent))]
for interfering with such authorization;[
we consider competing policies governing the exercise of discretion to restrict
CUA use.†(People v. Leal (2012) 210 Cal.App.4th 829, 837 (
Initially, we address uncertainty about some of Perry’s appellate
arguments in the wake of Leal.
I. Issues
Resolved by Leal
Perry’s
initial briefing raised several arguments that our opinion in
on the impact of Leal, and have
received as well a response from the Attorney General, and a very recent reply
by Perry, but Perry’s supplemental briefing leaves unclear whether he accepts
issues. He neither repeats nor adds to
them, but does not concede or withdraw them, either. So out of caution, we briefly adhere to the
pertinent holdings in Leal.
Much
of Perry’s briefing centers on section 11362.795, a provision in the MMP
that allows probationers like himself to seek court confirmation of CUA
authorization. He argues that the
section, when properly read, does not authorize a court to go beyond a facially
valid CUA authorization to deny confirmation based on Lent; alternatively, he argues if the provision can be read that
way, it constitutes an unconstitutional restriction by the Legislature of a
voter initiative, the CUA. We rejected
those arguments in Leal, holding in
essence that a trial court’s long-established power to ban otherwise lawful
activity under the Lent test is
inherent, not dependent on authority conferred by the CUA or the MMP, and that
neither enactment explicitly or implicitly terminates that power. (Leal,
supra, 210 Cal.App.4th at
pp. 846-849.)
Perry
also argues that survival of the Lent
test in this context renders section 11362.795 (or modification under Pen.
Code, § 1203.3)
“illusory†and impermissibly allows a trial court to second-guess voter intent
and the opinion of an authorizing physician.
Not so. We held in
that a court finding both CUA authorization and satisfaction of the
confirmation; it must go on to balance the competing public policy
interests. (Leal, supra,
210 Cal.App.4th at pp. 843-844.)
This exercise of discretion also does not constitute a prohibited
second-guessing of voters or physicians (id.
at p. 844), a prohibition more properly invoked during the step-one
inquiry into valid authorization (id.
at p. 839). Perry argued in his
initial briefing that the Lent test,
usually applied at an initial grant of probation, should not apply to
post-judgment motions to modify, but we cannot share his view given that the
same competing interests arise in both situations.
Perry
invokes language in Tilehkooh,
page 1444, broadly suggesting that prohibiting CUA-authorized use of
marijuana serves no rehabilitative purpose.
We examined that language in Leal,
found it to be dictum, and disagreed, further, with the notion that prohibiting
CUA use cannot serve a rehabilitative purpose.
(Leal, supra, 210 Cal.App.4th at pp. 849-850.)
The
Attorney General’s initial briefing seconded the reasoning of the prosecutor
below that continuing illegality of marijuana possession under
as conduct that is in itself criminal, and her letter brief does not mention or
concede that Leal expressly rejected
that notion. (Leal, supra,
210 Cal.App.4th at pp. 840-841 & fn. 3.) We adhere to Leal on that point as well.
II. Step
One Issues
Beyond
the federal-illegality argument just noted, Perry faults prosecutor Dell’s
reasoning that Dr. Lenson’s marijuana recommendation was “questionableâ€
since it was not from a doctor who regularly treated Perry and since no “Kaiser
doctor†or other regular provider had said anything about marijuana being
needed. Leal embraces the notion that, “at the step-one stage†of inquiry
into the validity of a CUA authorization to use medical marijuana, courts
should not second-guess facially valid recommendations or the wisdom of the
voters in allowing marijuana use for conditions short of serious
illnesses. (Leal, supra,
210 Cal.App.4th at pp. 839-840 [discussing cards issued under the
MMP].) On the other hand,
of balancing competing public policies of medical needs against rehabilitative
needs, courts may—and must—take into account “medical need and efficacy based
upon evidence: the defendant’s medical
history, the gravity of his of 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.†(Id.
at p. 844.)
Here,
the prosecutor’s argument that Perry’s physician recommendation was
“questionable†due to lack of corroboration by other medical providers would
have been in error if applied to the step-one, rather than step-three, stage of
inquiry, but we do not see that the court ultimately did any step-one
second-guessing. The court did not
confine its ruling to the authorization’s validity, but heard all of the
evidence and arguments and ruled, apparently more broadly, that Perry produced
an insufficient “basis†for allowing him to use medical marijuana.
reveal that the three steps of inquiry . . . were considered and
resolved in lockstep progression.
Further, a balancing-of-needs finding against a defendant is
. . . necessarily implied in a probation condition limiting or
disallowing CUA use of marijuana.†(
We
therefore proceed, as the Attorney General’s supplemental briefing does, on the
conclusion that the court found a facially valid authorization.
III. Step
Two Issues
Perry
argues that there was an insufficient nexus, under Lent, between restricting his use of medical marijuana, and either
his commitment offense or preventing future criminality. There was no argument or express ruling on
this point, but the court, by finding an insufficient “basis†to allow medical
marijuana use, implicitly found that Lent
was satisfied. The record supports the
ruling.
Perry’s
claim of insufficient nexus rests in part on the idea that his admission to
violating probation did not included the ground that he twice tested positive
for THC. The premise is faulty. As already noted in the background part of
this opinion, while there was mention at the admission hearing of Perry’s
failure to take the 52-week anger management course and no correlative mention
of the positive THC tests, nothing in the ensuing admission of probation
violation, or the advisements or other colloquy leading to it, limited the
admission to the former ground, and the petition charged both. The minute order also states, in plural
language, that Perry admitted “the terms and conditions of [p]robation.†We would
expect some limitation in the record if Perry intended his admission to be
limited in the way he now suggests.
Perry
also urges that, since his guilty plea to the underlying offense came before a
preliminary hearing, and sentencing proceeded without a presentence report, the
record lacks sufficient evidence of any nexus between his offense and
prohibiting his use of medical marijuana.
This premise, too, is faulty. As
set out in the background part of this opinion, that very paucity of
documentary evidence prompted counsel on
both sides to make oral representations to the court about the pertinent
facts of the charges, as well as various facts bearing on Perry’s criminal and
personal history, views, and acceptance of responsibility. Both sides clearly meant for the court to
rely on their representations in lieu of a report, and raised no objections or
corrections to the other’s statements.
Then the court stated in ruling that its “understanding of
. . . the underlying facts†was based on victim letters and “what you
both have said.†Having induced the
court to rely on the oral representations, and then acceded to the court doing
so, Perry cannot complain now that they were unsworn or lacked a formal
stipulation to be taken in lieu of evidence.
With
those premises properly deflated, resolution of Perry’s nexus arguments is
straightforward. Taking first the
underlying offense, the showing was that Perry showed up at work that morning
in a “severely intoxicated†state, so intoxicated that Doe, as his supervisor,
had to escort him home. On that car ride
Perry began a series of threats that would include having her raped and killed
by his friends, whom he acted as though he was calling on his cell phone. She was also brutally attacked physically and
choked, was afraid for her life, and in the end was devastated emotionally by
the threats and physical assaults. And
while it is true that there was no information whether Perry had a frequent or
chronic problem with intoxication, he obviously had a major problem that morning,
with violent and devastating effects.
There was no showing, in fact, that anything besides intoxication drove him to that abusive and violent
state. And while Perry is correct to
observe that we cannot tell from the record just what the intoxicating
substance or substances were, the court could reasonably conclude that any kind
of intoxication would have increased the risk, and thus that prohibiting
marijuana use bore a sound nexus to the offense.
Alternatively,
there was also a nexus to future criminality.
Perry’s points about the lack of evidence that he had a chronic or
repeated intoxication problem hold more sway here, because it is possible to
speculate—however unlikely it may be—that his attack on Doe was the product of
an isolated, unprecedented episode of substance abuse. Putting that aside, however, it remains that
Perry admitted to probation violations alleging that he tested positive for THC
on August 29 and November 3, 2011, thus directly demonstrating a
willingness to break the law through marijuana use. We are not impressed by his argument that
this is not fair game because the authorization from Dr. Lenson he would
later produce showed an issuance date of May 26, 2011, and expiration date
of May 26, 2012, encompassing both of the alleged violation dates. He cites his attorney’s statement at the
December 21 admission hearing, about possible uncertainty in that
probation in Marin County was satisfied with Perry having a medical marijuana
authorization, whereas when he moved to
probation insisted on his having court approval. One problem with this excuse is that the
court in Marin County had forbidden possession or use of any “illegal
substances, including prescribed marijuana, unless
specifically authorized by the court.â€
(Italics added.) Thus even if we could accept counsel’s
unsworn remarks as evidence, Napa County probation’s position was the correct
one; a mere authorization was not enough to avoid violating probation. Another problem with his excuse is that, by
admitting the violation of probation, Perry forfeited any chance to assert that
excuse.
The
Lent test is satisfied on this
record, and thus provides threshold discretion for the court to interfere with
authorized medical marijuana use.
IV. Step
Three Issues
That
brings us to step three under Leal. Finding discretion under the
probationer’s medical use of marijuana “does not mean that the court
for discretionary action is, by
definition, something permitted, not required.â€
(Leal, supra, 210 Cal.App.4th at p. 843.) Discretion is abused when the determination
is arbitrary or capricious, or exceeds the bounds of reason, all of the
circumstances being considered. (
“The step-three exercise of discretion is vital in limiting medical use
of marijuana, for it 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.†(Id.
at p. 844.) To repeat our earlier
explication: “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.â€
(Ibid.)
Step
three is the weakest link for Perry.
With the record showing a need to limit or prohibit marijuana use for
his rehabilitation and for protection of the public, it was incumbent on him to
show, as only he could, that he had a countervailing need to use marijuana for
medical purposes. Perhaps because he was
acting as his own counsel and unfamiliar with evidentiary requirements, or
perhaps not, his showing of need was exceedingly weak. Accepting that his medical records for
treatment of back pain established that he suffered from spondylolisthesis in
his lower back, the degree of his discomfort was not established. Perry did not submit declarations or testify
to the matter. His CUA authorization
only established that one physician felt that he could derive “some
unquantified ‘benefit from the use of marijuana’ (§ 11362.5,
subd. (b)(1)(A)) to help alleviate†his back condition.
supra, 210 Cal.App.4th at
p. 845.) No evidence showed the
degree of his discomfort, or even whether he had ever gotten any relief for it
from marijuana, such as when he used it in admitted violation of
probation. Perry’s unsworn statements at
the hearing were not evidence. Unlike
the May 2009 sentencing for the underlying offense, there was no implicit
understanding by the court and parties at this hearing that unsworn statements
were to be accepted in lieu of evidence.
There
was also no proof—just the non-evidence of his own statements—that Perry could
not get effective relief from medications other than marijuana. The material he printed from the Web on
spondylolisthesis (assuming it was somehow subject to judicial notice)
described the condition as often causing no suffering and, while sometimes
problematic, “curable†by simply taking good care of oneself. Another excerpt read, as to lower back
pain: “[T]here are some easy exercises
with which you can easily treat the pain and reduce it up to a major margin. The best treatment for the back pain is
considered as the back stretching and body stretching exercises. These exercises can give an effective relief
to the patient without any hap hazard [sic].â€
Medical
records Perry furnished of a November 2011 appointment he had with
Dr. Sadiq showed that he was instructed to do exercises, schedule an
appointment with physical therapy, and take “Naproxen (naprosyn)†tablets twice a day as needed for pain. His December 2011 letter from Dr. Sadiq
repeated that he had been referred to physical therapy and added that he had
been “using NSAIDs for pain control.â€
The court, responding to that letter and to Perry’s (unsworn) claim of
having lost medical coverage, observed that such anti-inflammatories, like
Advil and Aleve, were surely less expensive than marijuana.
The
court’s implicit step-three finding that the need for medical marijuana was
outweighed by the need for rehabilitation and protection of the public is
overwhelmingly supported.
V. “Reasonsâ€
for the Decision
The
court’s oral ruling was: “I’m going to
deny your request. I’m just not
satisfied with what you’ve presented here that there is a sufficient basis for
me to allow you to consume medical marijuana during your probationary
period. [¶] So the
request is denied.†Perry argues that
this failed to satisfy section 11362.795, subdivision (a)(2), which
provides: “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.†(See fn. 1, ante, for fuller context.)
The
decision, but not reasons, are reflected in the court’s minute order, and
failure to include the reasons was certainly in breach of the provision. Whether the ruling as orally rendered failed
to adequately state “reasons†may be debatable, as is the Attorney General’s
position that Perry’s failure to raise any objection on this basis below waived
the issue for appeal, but we need not decide.
Any error or errors were harmless.
Generally,
a court’s failure to give adequate or proper reasons, in violation of statute, is
subject to review for harmless error. (
622, 729-730 [no reasonably probability a more favorable sentence would have
been imposed in the absence of partly faulty reasons]; People v. Price (1991) 1 Cal.4th 324, 492 [not reasonably
probable that the trial court would have chosen a lesser sentence had it known
that some of its reasons were improper]; contrast People v. Bonnetta (2009) 46 Cal.4th 143, 148-152 [no harmless
error analysis for failure to set forth reasons, in the minutes. for dismissing
a strike allegation in the furtherance of justice under Pen. Code,
§ 1385].)
Perry
does not argue that error he raises is reversible per se but disagrees with the
Attorney General’s view that any error was harmless. He argues that lack of a complete statement
of reasons “adversely impacted†him because it leaves us to “speculate exactly
how his showing could be viewed as insufficient, which is precisely why the
statute squarely places the onus on the trial court to specify the reasons for
its decision.†It is true that one
reason for requiring a statement of reasons is to enable meaningful review (
32 Cal.App.4th 1756, 1770), but as our analysis above shows, the record
does not leave us to “speculate†what shortcomings the court found in Perry’s
showing. The evidentiary shortcomings
were objectively clear, without need to wonder what subjective concerns, like
credibility, might have further influenced the court. And finally, the existence of the court’s comments
at the hearing makes their lack of inclusion in the minutes harmless for review
purposes.
We
hold to be harmless any error or errors in the expression of reasons.
Disposition
The
order of January 6, 2012, denying Perry’s second request to use medical
marijuana while on probation is not shown to be an abuse of discretion, and the
order is affirmed.
_________________________
Kline,
P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
name="_ftn1" title=""> [1] All undesignated section references are to
the Health and Safety Code.
Section 11362.795
provides in pertinent 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.â€
name="_ftn2" title=""> [2] A record augmentation includes a statement of
probable cause dated March 25, 2009, which is evidently the document
defense counsel referenced. It
recites: “Perry and the victim have been
dating for approx. 11/2 months and living together for 3
weeks. During an argument, Perry pushed
the victim onto a bed and began choking her. Perry slapped the victim in the leg. Perry later bit the victim on the cheek,
causing redness to her cheek. Earlier,
Perry threatened to shoot the victim.
The victim is in fear for her life.â€
