P. v. Shocknesse

Filed 11/13/09 P. v. Shocknesse CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

Defendant Allan D. Shocknesse pleaded no contest to transporting a controlled substance (cocaine) (Health & Saf. Code,  11352, subd. (a)) and driving while under the influence of alcohol or drugs (Veh. Code,  23152, subd. (a)). The trial court placed him on three years probation, on the condition that he totally abstain from alcohol and illegal drugs. Defendant contends that the trial court abused its discretion by refusing to modify the probation condition to permit him to use medical marijuana. We disagree and affirm because the abstention condition was valid and appropriate given defendants history of drug abuse and other factors.

I. FACTS

According to the probation report, a Vacaville police officer saw defendant driving a friend home from Cheers Bar at 3:15 a.m. on February 22, 2008. The friend was hanging out of the passenger window of defendants car, holding onto a bicycle. Suspecting the bike may have been stolen, the officer stopped the car. The officer spoke to defendant and noticed signs of alcohol intoxication. Defendant admitted drinking three beers. He performed poorly on field sobriety tests and also admitted having taken a few Vicodin tablets.

The officer searched defendants car and found 4.5 grams of cocaine and two digital scales. Defendant admitted the drugs and the scales belonged to him and not his passenger. Defendant was arrested. Blood and breath tests revealed defendants blood alcohol was .20 and .18 percent, respectively.

Pursuant to a plea agreement, defendant pleaded no contest to transporting cocaine and driving under the influence. Related chargespossession of cocaine for sale (Health & Saf. Code,  11351) and driving with a blood alcohol of .08 percent or more (Veh. Code,  23152, subd. (b))were dismissed. During the probation interview, defendant admitted that he owned one of the scales found in his car, and that he used the scale mainly for marijuana to make sure that he wouldnt get ripped off.  Presumably, this is a reference to verifying the quantity of a given marijuana purchase. Defendant, who was 21, admitted that he had smoked marijuana once every two weeks since he was 18, smoking a gram at a time. He was trying to stop smoking marijuana completely, because it made him unmotivated and lazy. Defendant also admitted a history of cocaine use and of drinking alcohol.

On September 22, 2008, the trial court imposed a period of three years probation and, as a condition, ordered that defendant totally abstain from alcohol and illegal drugs.

On November 7, 2008about six weeks after sentencingdefendant gave his probation officer new information about his recent involvement with marijuana. Defendant had used marijuana two weeks previously, i.e., in late October. On October 13, defendant had obtained a physicians recommendation for medical marijuana pursuant to the Compassionate Use Act of 1996 (Health & Saf. Code,  11362.5) (Act).[1]

The physicians recommendation, submitted to the trial court, consisted of a one-page form letter from MediCann, Inc., self-described medical marijuana specialists. The letter, headed Physicians Statement, purported to verify that the undersigned physician, Thomas F. Gardner, D.O., was the attending physician for defendantwhose name was placed on a blank line above Patient Nameregarding the therapeutic value of medical marijuana for him/her. The letter also purported to verify 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.

The probation officer filed a supplemental report requesting clarification whether defendant should be permitted to use medical marijuana. The probation officer asked that the court modify the probation condition if the court wished to permit the marijuana use.

The probation officer did not appear to support defendants use of medical marijuana. The probation officer noted that defendant said he wanted to quit smoking marijuana completely because it made him unmotivated and lazy. The probation officer observed that defendant had obtained a recommendation for medical marijuana after being placed on probation without first exploring other medical optionsand [s]hould [defendant] need further treatment for substance abuse, his use of marijuana would be problematic, as outpatient substance abuse program[s] with drug testing requirements require abstinence from alcohol and illegal drugs, including marijuana.

On December 10, 2008, the trial court refused to modify the probation condition to permit use of medical marijuana: [T]he Court, in reviewing the entire file, is not going to allow that. As pointed out in this supplemental report, he indicated in his prior pre-sentence report [he was] trying to stop completely [and marijuana] makes him unmotivated and lazy. . . . Hes used marijuana since the 9th grade. And since he was 18, he uses it basically daily [sic]. He has a history of alcohol abuse, cocaine use and marijuana use throughout all that time, and its just not in his best interest to use marijuana.

II. DISCUSSION

Defendant contends the courts refusal to modify the abstention condition is an abuse of discretion. We disagree. Despite a physicians recommendation for medical marijuana use, a trial court may require abstention from marijuana as a condition of probation in an appropriate case.

There is explicit statutory authority for a probation condition prohibiting the use of otherwise legal medical marijuana. Section 11362.795, subdivision (a), provides:

(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 courts 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 courts consideration of the modification request authorized by this subdivision shall comply with the requirements of this section.

These statutory provisions plainly vest a probationers medical marijuana use in the trial courts discretion. Thus, marijuana use made legal by the Act may nevertheless be prohibited as a condition of probation. This is consistent with the general rule that noncriminal conduct may be regulated or prohibited by probation conditions if they are reasonably related to the crime for which defendant was convicted or to future criminality. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; see People v. Lent (1975) 15 Cal.3d 481, 486.)

In People v. Bianco (2001) 93 Cal.App.4th 748, the defendant pleaded guilty to marijuana cultivation. Before sentencing, he obtained a physicians recommendation for medical marijuana use. The trial court nevertheless imposed a probation condition that defendant abstain from using marijuana. (Id. at pp. 750-751.) The Court of Appeal affirmed, finding the probation condition reasonably related to defendants crime and to future criminality. Not only had defendant been convicted of cultivating the very substance he now wanted to imbibe, but he had diverted that substance for nonmedical purposesagainst the terms of the Act. (Id. at pp. 753-754.) He also had a history of prior substance abuse. (Id. at p. 754.) We agree with Biancos basic premise: that a general legal entitlement to use or possess a substance does not ipso facto preclude a prohibition on the use of that substance as a condition of probation.

Defendant relies on People v. Tilehkooh (2003) 113 Cal.App.4th 1433, which held that the Act was a defense to probation revocation (id. at pp. 1441-1443), and which seemed to state, in rather broad language, that abstention from medical marijuana use could serve no rehabilitative purpose and thus could never be a condition of probation. (Id. at pp. 1443-1445.) But Tilehkooh predates section 11362.795, which was enacted in 2003 and became effective January 1, 2004. (Stats. 2003, ch. 875,  2. See Cal. Const. art. IV,  8, subd. (c); People v. Jenkins (1995) 35 Cal.App.4th 669, 673.) Furthermore, even aside from the explicit statutory authority to impose a medical marijuana abstention condition, we cannot agree that a probationer can never be ordered to abstain from medical marijuana.

In the present case, defendant regularly used marijuana for three years prior to sentencing. He also abused alcohol and cocaine. He was arrested with 4.5 grams of cocaine, plus a scale he admitted using when he purchased marijuana. He claimed he wanted to quit smoking marijuana because of its adverse effect on himbut less than a month after he had been ordered to abstain from marijuana as a condition of probation, defendant obtained a physicians recommendation for medical marijuana use. He presented only a form letter, signed by a doctor, which did not identify the serious medical condition defendant purportedly suffered from, describe its severity, or indicate whether marijuana is the only, or even the best, form of relief. Defendant obtained this recommendation without exploring other medical options for treatment. Moreover, in the probation officers opinion, medical marijuana use could render defendants substance abuse treatment problematic.

Under these circumstances, the trial court could justifiably take a jaundiced view of defendants medical claims. The court did not abuse its discretion by refusing to modify probation to permit defendants use of medical marijuana.

III. DISPOSITION

The judgment of conviction is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Margulies, J.

______________________

Dondero, J.

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[1] Subsequent statutory references are to the Health and Safety Code.