P. v. Stine
Filed 3/25/13 P. v. Stine 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opinion has not been certified for publication or ordered published for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.
THOMAS
MARSHON STINE,
Defendant and Appellant.
A133781
(San Mateo County
Super. Ct. No. SC071244)
Thomas Marshon Stine
was tried by jury before the Honorable Barbara J. Mallach on a felony
count of possessing marijuana for sale
(Health & Saf. Code, § 11359).
rejecting his medical marijuana defense offered under the Compassionate Use Act
of 1996 (CUA) (§ 11362.5). At sentencing, Judge Mallach
suspended imposition of sentence and admitted him to three years probation with
a six-month jail term condition and, over defense objection, a condition that
he abstain from use and possession of controlled substances, including marijuana.
Stine
did not appeal that judgment of August 23, 2011, but later requested
modification to allow his medical use of marijuana. Judge Mallach heard the matter on
October 28, 2011, and denied the request.
Stine filed a notice of appeal on November 14, incorrectly indicating
that he challenged a plea-based judgment, but clearly and timely identifying
the modification denial of October 28 as the challenged order.
Stine’s
appellate counsel filed a Wende brief
raising no issues and seeking our independent review (People v. Wende (1979) 25 Cal.3d 436), and this court, after a
preliminary review, ordered the parties to brief whether denial of the
modification request was an abuse of discretion. Having now considered that briefing,
plus supplemental briefing on the effect of our intervening decision in
210 Cal.App.4th 829 (Leal), we
find no abuse of discretion and affirm the denial.
Background
By
the time Judge Mallach denied modification, she had heard the trial and
original sentencing evidence, as well as the evidence at the
information.
Detectives Christopher Sample and Nicholas Douglas of the Menlo Park
Police Department, patrolling in East Palo Alto in an unmarked Chevy Tahoe, as
members of a narcotics task force team, saw three men sitting in a minivan on
Cypress Avenue, a dead-end street in a high narcotics area. The officers
stopped, got out, and approached the minivan, Douglas on the passenger
side. Stine sat in the driver seat, and
the others sat in the front passenger seat, and a row of seats behind. Sample noticed an odor of burnt marijuana,
and smoke wafted out when Stine opened the driver side door. Sample asked Stine if he had any marijuana in
the van, saying he could smell it, and Stine said he did. One passenger, a Black man Sample knew as
Anthony Lewis, exited the van and tried to leave, but complied when Sample
told him to come back. Sample asked
Stine if he had anything in the van besides marijuana, and Stine said no. The officers got drivers’ licenses and
identification from each suspect and eventually had them leave the van and sit
on a curb. Douglas provided cover while
Sample investigated and collected evidence.
Stine resided in San Mateo.
In
searching Stine, Sample found money in a pants pocket, an expired cannabis card
issued in February 2004, and discovered that Stine was wearing a bulletproof
vest under his T-shirt and jacket. That
type of ballistics vest would typically cost $700, was specifically designed to
stop handgun rounds, had a special trauma plate in the center to stop assault
rifle rounds, weighed from 10 to 15 pounds, and would be uncomfortable (hot and
itchy) to wear. Sample alerted Douglas
to the vest, which increased Sample’s expectation of encountering a firearm or
other danger. In a search of the van, Sample found in
a center console ashtray a blunt (marijuana cigar or cigarette) the occupants
had apparently been smoking and an ounce of marijuana, plus a digital scale in
a pocket in the driver’s side door.
Behind the driver’s seat was a black bag containing eight more one-ounce
sandwich bags of marijuana.
When
the men with Stine asked if they were going to be arrested, Stine interrupted
to say the marijuana was his, that he purchased over half a pound of it from
somebody in San Mateo earlier that day for $1,825, that he was going to split
it with someone who was to arrive later, and that none of it belonged to his
companions, although he did say that Lewis had paid him $5 for some and that
the other man (Wagner) was going to wash his car for some. Stine was arrested, and the other two were
released at the scene.
At
the police station, Stine gave a Mirandized
statement (Miranda v. Arizona (1966)
384 U.S. 436) in which he said he had lied about splitting the marijuana
with someone else. Both officers
recalled Stine mentioning that he had ulcerative colitis, and Sample recalled
Stine saying that he smoked marijuana to address the condition.
Agent
Daniel Guiney of a county-wide narcotics task force opined from the
circumstances, as an expert in the possession of marijuana for sale, that Stine
had the marijuana “both for personal use and for sale.†He explained that people who personally use
marijuana often buy in larger quantities than they need and use a digital scale
to sell off smaller portions, thereby profiting and availing themselves of bulk
prices. While
individual use varies, most people ingest half a gram per use, perhaps up to
one and a half grams depending on the kind and quality, and whether the
marijuana is properly trimmed or cured.
At 256 grams per ounce, each ounce could furnish about 500 uses. The number of uses per day varies, but even
higher-quantity users smoke only an eighth of an ounce per day. Stine therefore had enough for two months at
that rate, or one month if the daily amount were doubled to a quarter ounce—a
level Guiney had heard of but never encountered.
Guiney’s
opinion that most of the drug was possessed to be sold rested on the full
circumstances, including: Stine’s
statements; his expired cannabis card; the packaging into one-ounce bags; the
bag in the console having been “dipped into†for use by Stine and/or his
companions; the digital scale that served no purpose except to weigh out small
quantities for sales to others (since users ordinarily do not weigh what they
use); the bulletproof vest, which he had never seen worn by a mere user as
opposed to a dealer; and the marijuana having been purchased close to home, in
San Mateo, and taken to the drug sales area in East Palo Alto (by someone
wearing a bulletproof vest). The risk of
being robbed increases with the amount of anticipated profit, and one who paid
$200 an ounce for the drug could sell it in more profitable smaller quantities
for $400 an ounce. The digital scale in this case was
small (Detective Sample having had a one-ounce bag fall off the scale when he
tried to weigh with it), but it is common for small amounts (like a “dime bagâ€
of $10 to $20 for a gram) to be taken from a larger amount and weighed out on a
small scale like that. Guiney knew of
nothing in the law that allowed medical marijuana to be sold to or shared with
others.
examined Stine in February 2004 and wrote him a recommendation for medical use
of marijuana. This was work he did at
the office of two physicians in Oakland, separate from work he did at Kaiser
Permanente (Kaiser). He did not have
records beyond his recommendation and could not say whether he reviewed Stine’s
medical records before recommending marijuana, but recalled Stine complaining
of stress, anxiety and abdominal pain.
He did not recommend a particular dosage. He was a licensed physician at the time
but on probation and unable to treat female patients given medical board action
on complaints by three female patients of sexual assaults. His medical license was later suspended for
writing medical marijuana recommendations without proper assessments and
examinations. Assad characterized the
women’s complaints as made up and the product of
attributed some disciplinary problems to “bad handwriting.†He was vigorously impeached on those
explanations with records of the proceedings.
Stine
testified, presenting a CUA defense that, the cold record suggests, left the
jury convinced that Stine was tailoring his version of events to fit the
defense and patch over incongruities. He
said he left his San Mateo home that morning around 10:00 a.m. and bought
the marijuana from a man in San Mateo he had met with in person the night
before, a man who grew marijuana and had sold it to him twice before. Refusing at first to identify the man, Stine
eventually said it was someone named “Dave,†but gave no last name. He had met
Dave at a recreation center near his home.
The
bulletproof vest, Stine said, had been loaned to him months earlier by a
“friend†or “acquaintance†who was looking out for his safety, a man with whom
he played basketball, and who used to stay in San Mateo but had moved to
Hayward. Refusing initially to identify
this man either (saying “I plead the Fifthâ€), Stine said eventually that his
name was “David.†He did not know the
last name but clarified that this was not the “Dave†from whom he bought the
marijuana. The vest was a loan, and
while he did not know where David lived, he could get in touch with David since
he was “around San Mateo†a lot. Stine
had no idea the vest was expensive, but David had never returned for it.
Stine
said he had worn the vest only twice before and did not always wear it to buy
marijuana. He did that morning, however,
for his “safety,†and only because he was buying the drug, not because he was
going to distribute it in East Palo Alto.
He was not going to split the marijuana with anyone, and his initial statement
to that effect was a lie he told police because he was “nervous.†He bought the nine ounces in order to get a
cheaper price than he could with one-ounce buys. Asked why he needed the vest when he was
buying from a friend from whom he had bought twice before, Stine said it was
because of the large amount of money and the drug. He said, without giving any factual context,
that he had been shot before and “stabbed on different occasions.†Asked why he kept the vest on when he went to
East Palo Alto, he said he “[j]ust never took it off,†and that wearing it was
not uncomfortable or heavy to him (at six feet tall and 148 pounds). He never thought of leaving the vest and
nearly $1,800 worth of marijuana at home before going to East Palo Alto.
Stine
said he was driving a borrowed car, and went to East Palo Alto to get it washed
before returning it. He also said he
conducted “family affairs†in East Palo Alto, caring for a grandmother there
while his mother worked and picking up his children from school in Palo
Alto. He “most likely†would have
dropped off his vest and marijuana at his grandmother’s house before picking up
the children, so as not to take those things to their school. His grandmother understood his illness,
understood what he did, and was “okay with†him “helping [him]self.†He did not know why he did not drop the items
off right away, but instead, he went to get the car washed. The man who was to wash the car came to speak
with him, got into the car, and joined in smoking marijuana with him. The other man put down $5 as he got in and
said “ ‘Here’s $5’ †before smoking with them. But Stine said he never asked for the money,
was not going to accept it, and that “[n]othing changed hands.†The men knew only of the ounce he had in the
center console and were unaware of the other half pound in the closed black bag
behind his seat. Stine said he could
have contacted them, and David, to testify on his behalf, but saw “no reasonâ€
to bring them in.
On
his possessing the digital scale, Stine explained that he measured his one-gram
doses in order to conserve his marijuana.
Also, Dave had instructed him to bring his scale that morning to measure
the marijuana because his own scale was broken.
Given that the scale was small, they measured out the drug in one-ounce
bags, and he said that Detective Sample was wrong about the scale being
too small to weigh out a whole ounce; it could be done if one tied the bag
tightly.
Stine
explained that he used marijuana for relief from ulcerative colitis, from which
he had suffered since 1999, improperly diagnosed for the first several
years. His symptoms were fatigue, weight
loss, abdominal pain, and frequent bathroom use. He got the medical marijuana recommendation
from Dr. Assad in 2004, after trying marijuana, and after having used
prescribed medicines that made him sick.
Dr. Assad was not his regular doctor. Renewing the physician recommendation and
cannabis card would have cost $160 to $170, and he let his cannabis card lapse
because of financial difficulties. He
lost his job and medical coverage in 2006 or 2007. Dr. Assad had not prescribed a dosage,
but Stine said that he used four to seven or eight grams a day at the time of
his arrest, meaning that the nine ounces he bought would have lasted one to two
months. His
treatment cost about $900 a month, which would total $10,800 a year except that
Stine grew marijuana outdoors, and used his own between April and September
each year. He was not working but had
been wrongfully fired from Stanford University and, in late 2008 or early 2009,
received a settlement of about $47,000 or $48,000. Stine had recently seen Dr. Lucido, who
had examined his medical records and given Stine a renewed recommendation for
medical use of marijuana.
As
a matter of general impeachment, Stine admitted that he had a drug-related
felony conviction of moral turpitude from when he was 19 years old.
Dr. Frank Lucido
testified as an expert in the diagnosis of
marijuana, and evaluating other physicians’ performance. He had served on the advisory committee of
NORML (National Organization for the Reform of Marijuana Laws) and advocated
legalization of marijuana. Sixty percent
or more of his practice related to cannabis, as opposed to family practice, and
he had been voted Best Cannabis Physician, in 2009, by the readers of the East
Bay Express. He explained ulcerative
colitis as a chronic bowel condition marked by episodes of active inflammation,
and other times no symptoms. It involves
periodic worsening of symptoms of abdominal pain, nausea, and often diarrhea,
and can be “quiet or . . . very painful,†depending on the
patient and the severity of the disease at any given time. It may worsen over time, but “often it’s a
matter of ebbing and flowing,†and the illness can be properly treated with
marijuana. Given that the disease is
chronic, the appropriateness of a recommendation for medical marijuana, he
felt, did not lapse with the authorization period, and a recommendation may be
renewed after such a lapse. The CUA did
not authorize patients (as opposed to qualified caregivers) to share their
marijuana or sell it to others.
At
the request of defense counsel, Lucido
evaluated Stine on June 1, 2011—three weeks before testifying. He reviewed Stine’s medical records from
Kaiser and Redwood City Medical Center, examined him, and found that “bowel
sounds were decreased, but present and [that] the abdomen was soft and not
tender.†Lucido found that Stine had
recurring abdominal pain due to ulcerative colitis and recommended treatment
with marijuana. The recommendation, he
felt, was proper even though Stine was asymptomatic at the time. Lucido also reviewed the case in which
Dr. Assad’s license was revoked, agreed that Assad’s practices were
outside the norm for medical cannabis evaluations, and did not rely on Assad’s
2004 evaluation. Nevertheless, he
determined that Stine had the same illness back then, and opined that Stine had
the same condition and was properly using marijuana for treatment at the time
of his arrest in March 2010. Stine
reported using about two ounces a week, but Lucido did not know the THC content
of what marijuana Stine had or how it compared with the drug in a federal study
he cited where patients had used similar amounts. The California Medical Association advised
against making recommendations for specific amounts, and Lucido did not do so. Also, his evaluations of how much a person
needs from year to year were, he said, “based on what the patient tells
me.†What is reasonably related to one’s
medical needs, he testified, could be as little as a gram a week to two ounces
or more a week, and he felt that some patients did weigh their marijuana doses,
although they would “get used to what a gram is†and not need to weigh it out
every time one smoked.
to Stine’s account of the police encounter, that Stine never mentioned using
his scale to weigh out his doses, and did say that both men in the car were
getting some of the marijuana (one for $5 and the other for washing the
car). Sample reiterated that Stine said
he was going to split the marijuana with someone else, only to change his story
at the police station.
The
sentencing report recommended probation conditioned by Stine serving six months
in jail and not using or possessing controlled substances, including
marijuana. His prior drug-related
conviction was for possessing cocaine base for sale, and he had two other
convictions, both misdemeanors. Defense
counsel Naresh Rajan urged the court to allow CUA use of marijuana,
perhaps with possession limited to two ounces, and said he had asked
Dr. Lucido to testify further about marijuana being “an appropriate
remedy†for Stine’s affliction (although the doctor was not there).
No
further testimony was ultimately given, but discussion revealed the judge and
parties’ thinking at that point, starting with lack of information from any
jury about what exactly caused the jury to reject the CUA defense. But after Stine declined an invitation to
speak, Judge Mallach confided to him:
“I think what I found during the trial was that it was incredibly
bizarre that you were wearing a bulletproof vest. That made no sense whatsoever except, I mean,
in your theory of things. It made a lot
more sense in the prosecution’s theory of things. So I agree with [Deputy District Attorney
Sean] Dabel in the sense it’s kind of hard to accept your version of the
situation.†Asked
about hearing from Lucido, the judge led this exchange: “The
Court: I mean, if he’s going to
add anything. I didn’t have any quarrel
with the underlying premise that the defendant was prescribed the
marijuana. What I really thought though
and would think is that yes, he was prescribed the marijuana, but then he
decided hey, I got a good thing going here.
I’m going to make some money and maybe a little business. That’s my analysis of it. So—but if you wish to have Doctor Lucido
testify, that’s fine. [¶] . . . [¶] I
mean, I guess the bottom line with regard to [allowing CUA use] is I would want
to know is there any—what’s the alternative?
Clearly, there are a lot of people who have this disease who aren’t
smoking marijuana.
“Mr. Rajan: Right.
The alternative is standard medicine; the Vicodin[]s; the
narcotics. The problem with these
medications with regard to Mr. Stine is that they’re not really working. I think it’s a unique situation with regard
to him. It’s an individualized kind of
situation. He seems to react very badly
to traditional medications and seem to be receiving a lot more—
“The Court: How do we know that other than his testimony?
“Mr. Rajan: That’s how I know it.
“The Court: Well, I would want something a little bit
more than that because I think we end up in a [C]atch 22 situation. And we also end up with the probation
department not being able to monitor that so that’s my concern. [¶] . . . [¶] How
do we know he’s not, for example, doing exactly what he was doing here?â€
Dabel
then commented: “[I]t’s really difficult
for the People to submit that based on the defendant’s testimony that this is
the only type of treatment that he can get.
It’s apparently a very expensive treatment; the amount of marijuana he’s
smoking. It’s hard for the People to
believe there’s no other treatment in the same price rang that’s going to
alleviate his [e]ffects because he has been shown to possess it for the purpose
of sales . . . .â€
Rajan replied: “Mr. Stine’s
wife . . . could probably shed some light on his symptoms. The problem is that nobody who isn’t really
close to Mr. Stine has the basis to know whether or not the medication is
working and whether or not he needs marijuana.
Problem is with his own self-diagnosis as far as his pain, only he can
testify to what he’s feeling and so.â€
The
court acknowledged the problem, also suggesting that Rajan might want to find a
witness “a little bit more down the middle to testify that this
is . . . the preferred treatment,†given that Lucido had “a
philosophical point of view that is maybe not mainstream.†Rajan conceded that “thousands of people all
over the United States are being treated†for ulcerative colitis without using
marijuana, and submitted on the report without presenting further
evidence. The court suspended imposition
of sentence and granted probation on the indicated conditions, including that
Stine abstain from use or possession of marijuana and submit to chemical
testing as directed by any peace or probation officer. Stine has not appealed that judgment of
August 23, 2011.
Stine
brought a motion to modify his sentence (Pen. Code, § 1203.3 [general
court authority to modify anytime during probation]; § 11362.795 [specific
authority to modify for CUA confirmation, on probationer’s motion]), and the
motion was heard and denied after testimony and argument on October 28,
2011 (all unspecified further dates are in 2011). It is this post-judgment ruling that Stine
appeals.
The
motion was in two parts, one for medical use of marijuana during probation, and
the other for electronic home monitoring.
At his August 23 sentencing, Stine had been given a
September 24 surrender date, had now served nearly five weeks of his
six-month term, and anticipated, given conduct and work credits (Pen. Code,
§ 4019), serving just half of the six months. His motion did not seek medical marijuana use
while in jail, but, citing weight loss and heightened symptoms since
incarceration, sought release on electronic home monitoring for the remainder
of the jail term and, thereafter, for the rest of probation. As we understand his appellate briefing,
Stine challenges the denial of medical marijuana but not the denial of
electronic home monitoring, which must surely be moot by now.
Stine
did not testify himself, or call Drs. Assad or Lucido for further
testimony, but he presented a third physician,
Dr. Jeffrey Hergenrather, who testified as an expert in both
cannabinoid medicine and traditional medicine to treat ulcerative colitis and
other inflammatory bowel disease.
Hergenrather had practiced since 1975, mostly as an emergency room
physician but, for the last 12 years, as a specialist in medicinal use of
cannabis within a general practice context.
A member of several cannabis-related organizations, he was president of
the Society of Cannabis Clinicians, had completed two studies of patients with
ulcerative colitis and Crohn’s colitis, and had recently reported his findings
at the University of Bonn, Germany, to the International Association for
Cannabinoids in Medicine. On Stine’s
motion, we have augmented the appellate record with a printed PowerPoint
presentation by Hergenrather that was lodged below for the judge’s perusal
during the doctor’s testimony. There is no need to detail its contents
here, for in the end, Judge Mallach accepted its thesis that marijuana can
effectively relieve the symptoms of ulcerative colitis, alone or in combination
with traditional medicines—in the judge’s own words,
“maybe . . . better than the traditional medicine.†The judge’s misgivings went to matters
specific to Stine’s own treatment history, and his motivation.
Further
on in this opinion (pt. II, infra)
we detail the evidence on those matters, and the ruling. It is enough here to state that, while the
evidence showed that Stine had suffered for years from an ebb and flow of
symptoms of ulcerative colitis, did claim significant relief from marijuana he
had used in the past, and did claim a worsening of his symptoms since being
incarcerated, Judge Mallach was ultimately skeptical of his credibility
and his motivations for seeking modification.
Also, many of the facts asserted in the motion were not supported by
evidence. Judge Mallach denied
modification.
Discussion
Leal
announced “a three-step inquiry into limiting CUA use of marijuana by a
probationer. First, we examine the
validity of any CUA authorization; second, we apply the threshold
we consider competing policies governing the exercise of discretion to restrict
CUA use.†(Leal, supra,
210 Cal.App.4th 829, 837.) As will
appear, this case turns on step three of the inquiry. But first, we address some uncertainty about
Stine’s appellate arguments in the wake of Leal.
I. Issues
Resolved by Leal
Stine’s
original briefing raised several arguments that our opinion in
on the impact of Leal, and have
received as well a response by the Attorney General, and a reply by Stine, but
Stine’s supplemental briefing leaves unclear whether he accepts
briefing. He neither repeats nor adds to
them, but he does not expressly concede or withdraw them, either. So out of caution, we briefly repeat and
adhere to the pertinent holdings in Leal.
Much
of Stine’s briefing centers on section 11362.795, a provision in the
Legislature’s Medical Marijuana Program (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 and deny confirmation based on the Lent test; 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
long-established power to ban otherwise lawful activity under the
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.)
Stine
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). Stine 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.
Stine
invokes language in People v. Tilehkooh
(2003) 113 Cal.App.4th 1433, 1444, broadly suggesting that prohibiting
CUA-authorized use of marijuana serves no rehabilitative purpose. We examined that language in
disagreed, in any event, with the notion that prohibiting CUA use cannot serve
a rehabilitative purpose. (
II. The
Evidence and Step-Three Balance of Interests
Applying
Leal’s three-part inquiry to the
facts of this case, the parties agree that the step-three balance of interests
is determinative. Judge Mallach
implicitly accepted that Stine had a valid physician’s recommendation by the
time of the hearing, whether from Drs. Lucido or Hergenrather, or
both. Stine also concedes in his
supplemental brief “that—due to his underlying conviction for possession of
marijuana for sale—the trial court did not abuse its discretion under the
traditional Lent standard when it
refused to modify the challenged probation condition.†We therefore proceed to step three.
urgency at the start of the hearing by saying that, while he had of course seen
Stine during trial: “I was quite shocked
to see him in custody about a week ago.
He has lost a lot of weight and he is in a great deal of pain.†Rajan said Stine had been taking medication
in jail for the past week but, for his first month there, “refused to takeâ€
any, feeling that he would have “other symptoms and problems with those
medications†and so was “racked with painâ€â€”“bent over.†Rajan said conventional medications “did a
number on his system,†adding: “And as
you can see, he has lost about 20 pounds with the use of the medications. He’s been suffering an allergic reaction; he
reports a cyst under his arm that’s getting bigger and he’s had hives.†As it
developed, however, most of those unsworn representations lacked support in the
record and the testimony of the sole witness, Hergenrather.
The
amount of weight loss was never fixed by the evidence and was not tied causally
to marijuana, which Stine had apparently not used for months. Hergenrather testified that he believed Stine
had been on “a hiatus†from marijuana at the time he examined him. On the matter of weight loss, we have the
testimony of Stine at trial, on June 20, that he weighed 148 pounds. Hergenrather testified at the hearing that,
when he examined Stine at his office on September 22, two days before
Stine began serving jail time, Stine “weighed 151 pounds and he looked lean for
being 5-foot-10 and a half, but in reasonably good health at the time.†He was asked
on cross-examination: “You would expect
that if the absence of marijuana was really the determinative factor in his
health, that you would see a substantial weight loss in a month [since his
August sentencing] I’d have to imagine; right?†and conceded, “That could
be.†Later, during argument, Stine’s
counsel stated that Stine had told him he now weighed “136 pounds,†but this
was never shown by evidence. The transcript indicates that Hergenrather
held up, for the judge to see, a photograph he said he had taken of Stine on
September 22, but the photograph was only marked as an exhibit, not admitted in evidence, and is not in our
appellate record. Even if we had the
image before us, we have no image from the hearing
with which to compare it. Hergenrather
testified, displaying the photograph, that Stine “looked to me to be weighing a
little—at least a little bit more than he does now. His facial features have changed
somewhat.†The record thus leaves us
unable to quantify the weight loss, except to infer, first, that Hergenrather,
a physician, did not seem to think it was a serious amount, and second, that
Rajan’s statement “about 20 pounds†had to be exaggeration.
The
premise that Stine suffered from ulcerative colitis was, as at trial and
sentencing, undisputed, and the judge made a statement that it was
documented. Hergenrather reviewed
medical records that, Rajan represented, were the same ones used by
Dr. Lucido at trial, and they included a colonoscopy done on Stine a month
before trial. The records were not
introduced at the hearing, but Hergenrather opined that the records, together
with his examination of Stine, showed ulcerative colitis—albeit misdiagnosed
for several years as pancreatitis. Stine
had reported “nausea and vomiting and marked loss of appetite and a marked
degree of pain. Most of his emergency
room presentations were with abdominal pain and that is typical of this
pancreatitis diagnosis as well so I think it was
understandable . . . that he was repeatedly diagnosed with
pancreatitis; but in fact, he was suffering from pain from inflammation, not of
the pancreas, but in the colon.†A
biopsy from the colonoscopy showed “moderate chronic active colitis with
ulceration . . . .â€
Having seen Stine just once, Hergenrather found it “a little bit
difficult†to rate the severity of his colitis, but called it a “significant
disease,†with “worse than average conditions,†and rated it as “about an eight
or nine†on a scale of one to ten.
Stine’s
heightened discomfort by the time of the hearing was better shown, but again,
not to the degree represented by his counsel, and it can be argued that there
was actually no evidence of what drug
he had taken during his last week in custody.
His counsel, Rajan, stated
that he had just spoken with Stine, who said it was Mesalamine, but that
statement was unsworn. There was no
stipulation to that effect, Stine himself never testified, and Rajan’s
statement was evidently news to Hergenrather.
Judge Mallach followed up by asking Hergenrather if he knew
that drug, and whether he was on it when Hergenrather examined him. Hergenrather gave no information about the
“last time,†but did say of the examination, “I don’t believe he was [on it] at
the time.†Thus we do not have evidence
of what drug Stine was taking.
Even
if we could say it was Mesalamine, there was no evidence of
whether it was an appropriate dose, and whether any claimed ill effects could
be attributed to it. And on the subject
of ill effects, there was no evidence
that, as Rajan stated at the start of the hearing: “He’s been suffering an allergic reaction; he
reports a cyst under his arm that’s getting bigger and he’s had hives.†No one so testified. Nor was there evidence for Rajan’s statement
at argument that Stine was “experiencing extraordinary side effects.†The matter was so poorly presented that we
can only speculate as to any of those matters.
Stine’s
past use of conventional drugs was
also never settled. Hergenrather
determined, partly from medical records but also largely from things that Stine
told him, that conventional drugs had
been ineffective. When questioned about
relying on Stine’s self-reporting, Hergenrather conceded that, in forming his
conclusions, he had to rely on what Stine, or other patients, told him. Asked whether, beyond Stine’s “word,†he had
“any documentation that he has been prescribed these medications,†Hergenrather
said: “I would have to review the
records that I have in my folder and see what he was prescribed at the time of
his visit. I don’t remember the answer
specifically. I know he’s been given a
lot of pain relievers and a lot of antibiotics over the course of this
emergency room visits. But as far as
going home with a prescription for an immune-modulating
drug, . . . the classic drugs used in ulcerative colitis, I’d
have to review the records to say for sure.â€
Later, following a recess during which Hergenrather examined the medical
records he had brought to court, he told Judge Mallach: “I don’t think I can be of any more help
today. I do have some records electronic—in
electronic form at the office. These
records are from 2000 until 2005 and more recently when Doctor Rubenstein
consulted with the defendant on May—in May of 2011.†He did not know what Dr. Rubenstein’s
treatment plan was. Returning to the court’s
earlier question about when Stine last used conventional medication,
Hergenrather said that Stine did not tell him:
“He simply said that it was a previous prescription and I don’t know
when it was stopped so I don’t have that information.†No further review apparently took place
during the presentation of evidence, and Judge Mallach declined, after
ruling on the motion, a tardy suggestion by Stine’s counsel to “reconsiderâ€
after being presented with a documentary history.
Hergenrather
testified, nevertheless, that Stine reported to him having tried Mesalamine
(brand named Asacol), upon which Deputy District Attorney Morris Maya
interjected: “. . . I
have no objection to the doctor testifying to this information as the basis for
his opinion, but not for the truth of the matter. I’m not convinced.†The judge ruled, “Okay. That will be the
understanding then.†Hergenrather went
on to say Stine told him he had “tried five different traditional medications. He named
Asacol . . . . That
is probably the most commonly used probably [ex]cepting Prednisone
steroids. I think 58 percent of the
patients in my study group have used or are using this particular medication in
helping manage this condition.†But Stine
told him that Asacol was not working:
“[H]e didn’t know why it wasn’t working.
He did say that it just was not working.
He was still having bloating, cramping, pain, nausea, vomiting, and
frequent stools; as many as a dozen stools a day in the morning hours.†Hergenrather did not recall “any other side
effects†(sic).
medications or he simply did not feel he got relief from†them, “so that was
part of my finding at the time [of examining him].†When asked what “problem†or “complaintsâ€
Stine had with conventional medications, Hergenrather said, “Mostly
explained to me.†(Italics added.) “He explained that experimenting with
Cannabis, he had found marked relief of pain and nausea. He still has a little bit of vomiting as some
of the patients do in my experience, but he finds that if he does vomit, it
actually gives him some sense of relief by emptying his stomach and he doesn’t
continue to vomit, which he was doing on conventional medications. He found that the Cannabis did ease his
nausea, help his appetite, and reduce his pain.â€
During
the examination, Hergenrather said, Stine reported marked tenderness in his
middle to lower abdomen when pressed, and Hergenrather deemed marijuana to be
“an excellent medicine†for him—his “best drug of choice.†He explained how the drug works in the body’s
“endocannabinoid systemâ€: “We have
receptors in our bowels, in our brains, and really throughout our body. In specific locations where the marijuana
molecules, THC and the other cannabinoids, activate these receptor sites; and
in doing so, have a down regulating effect, an anti-inflammatory effect on both
the immune system and the nervous system.†“THC, the dominant cannabinoid in Cannabis,
gram for gram is a more potent anti-inflammatory chemical than Prednisone
. . . .†The best effect
comes from “small frequent use of Cannabis.
If you were smoking Cannabis, it would be a toke or two if I may speak
of it that way; every hour or two. The
active ingredients only last in the bloodstream about an hour and they rapidly
are metabolized into the inactive metabolites, which persist in the body for
weeks and weeks. But the active
ingredients are very short-lived.†Based
on what patients told him, daily users of marijuana to manage the disease
averaged three grams a day, and those who also used conventional medications
averaged 1.7 grams.
Patients
using both forms of treatment also sometimes opt for one over the other
exclusively. He could not say for sure
whether some who opt for just marijuana do so because of the drug’s “euphoric
effect.†He acknowledged some overuse of
the drug, including excessive recreational use, but did not “see that as a
problem.†Questioned
by the court with regard to Stine specifically and the fact that he had two
convictions for selling drugs, Hergenrather said that, since Stine’s symptoms
fit the disease, he proceeded as if “dealing with a man with a disease rather
than a man with another motive.†He drew
his conclusions based on Stine’s “self-reporting†but did not feel there was
“any significant compelling reason other than†the disease for Stine seeking a
marijuana recommendation. Doctors in the
“marijuana industry,†he also explained, “have recognized that there are
non-psychoactive cannabinoids.
Basically, just about identical—just about identical molecules to THC
that aren’t psychoactive, but have all the other medicinal properties. There are 70 cannabinoids in marijuana. THC is the dominant one and it is
psychoactive. So that the docs in my
rule [sic] are doing these days is
where it’s recommending the cannabidiol rich strains or other strains that
aren’t particularly psychoactive. You
don’t get high basically, but you do get the medicinal effects so those
products are coming to be available.â€
Forty-five
percent of Hergenrather’s patients used just marijuana, and 55 percent also
used conventional medications. He
explained that he also recommended “other commonly used immune-modulating
medications or steroids in some cases to manage the flare-ups†of the
disease. Ulcerative colitis, he said, is
not a “steady state†disease, but is characterized by flare-ups and remissions,
the mechanism of which is not really understood. “Stress,†however, is “the single most
significant problem in causing flare-ups . . . . A lot of people will say this food gives them
trouble or that food gives them trouble, but the only thing that’s consistent
throughout is stress as a cause of aggravating condition.â€
Stine’s
motion was based in part on a claim that incarceration caused him more severe
symptoms, apparently due to stress. His
counsel interjected at one point during argument: “Mr. Stine is now indicating that even if the
Court weren’t to grant the use of marijuana while he’s on probation, he could
deal with that; it’s just he can’t do both in custody and not use marijuana.â€
In
argument on the motion, Rajan cited a 15-pound weight loss since being in
custody (not actually established), and the stress of being incarcerated as a
cause of worsened symptoms. He urged the
court to allow “small dosages many times a day,†as recommended by
Hergenrather, and suggested that the court could “effectively restrict how much
he has at any time†by use of a search condition, imposing a possession limit
of an ounce or less at any given time, and the threat of prosecution or
probation revocation should Stine not comply.
Prosecutor
Maya countered that he did not doubt Stine had the disease or that marijuana
might alleviate symptoms, but his “real concern†was Stine’s motivation. Citing financial reasons and the “avoidance
of penal consequences,†he was concerned that Stine was motivated “to really
promote the Court adopting this method of treatment as opposed to alternative
and traditional methods of treatment.â€
Citing the current and 1995 convictions for drug dealing, and the
expired medical marijuana card from 2005, Maya urged: “These things don’t seem to me to be such a
priority in his life . . . that they should provide a basis for
him to avoid incarceration, which is essentially what the end result is going
to be here.†Maya added: “I also am very troubled by the fact he
refused medication for a month. This is
an individual who seemingly is trying to dictate the terms of how he’s going to
be treated. If this is such an awful
affliction, which I believe it to be, I find it to be ludicrous that he would
not seek some method of relief, even though it’s not the preferred method of
relief. [¶] So I just have lots of
questions about Mr. Stine’s motivation for making this request.â€
Judge Mallach began her ruling with this query: “[I]s the suffering because [the defendant]
has another motive or is the suffering because he has no other alternatives? That’s the bottom line here.
“I
. . . accept the sincerity of Mr. Rajan and I accept the sincerity of
the [d]octor; I don’t necessarily accept the sincerity of the defendant. And I think what is telling is the fact that
when the defendant goes to see the doctor out of custody while he is apparently
in some pain, he is not—he’s not in the condition he’s in right now and I think
you have to say well, why is that? I
appreciate you’re saying it’s stress and stress exacerbates the illness and I
accept that. But I also think it’s
because the defendant—Mr. Maya said it more articulately than I’m going
to. But essentially the defendant
chooses not to take the medication because he wants to present himself in this
fashion. And I think that—because he
wants to use the marijuana.
“You
know, and I will even accept the fact that maybe . . . the use of
medical marijuana . . . relieves his symptoms better than the
traditional medicine, but he’s in the jail right now and the choices are
traditional medicine and he’s choosing not to avail himself of that even if
there are side effects so I’m not sure how really rational that is.†The judge also questioned how realistic it
was to expect a probation officer to monitor daily “what dosage the defendant
is taking of marijuana.†Then, after
rejecting Rajan’s alternative suggestion that the court consider just
electronic home monitoring, the judge added:
“I’m a cynic, we’ll call it like it is.
I think Mr. Stine is fairly manipulative and I think Mr. Maya has it
right. He chooses for—whether it’s the
best treatment or not, I’ll leave to others, but he chooses to use the
marijuana and he doesn’t—I have not seen a pattern that’s why I asked the
doctor about the history of . . . the medication he’s taken—if I’d
seen a history of somebody who’s literally gone through all of the medications
and hasn’t received relief from any of them, then we’d be a different
situation. That’s not what I’m seeing.â€
On
the question of release on electronic home monitoring, the judge saw no basis
for it, was “just s[k]eptical†about Stine’s claim of “severe†pain and noted
that, with custody credits, he was really only serving 90 days, not six months.
probationer’s CUA use of medical 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.) “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.†(
Stine
fails to show abuse of discretion. The
court’s skepticism or cynicism about the degree of his disease-related
suffering and his motive for the motion was reasonably grounded in the
record. His all-for-my-own-use medical
marijuana defense at trial had featured him testifying to a fairly preposterous
account of how he came to be parked in a high narcotics area of East Palo Alto
with a digital scale, over $1,800 in marijuana packed in one-ounce bags, and
wearing a bulletproof vest. The court
could reasonably discount his credibility in general and view his testimony as
manipulative.
While
there was no dispute that Stine had ulcerative colitis, a serious disease, that
disease is not static but is marked by flare-ups and remissions. The court had good reason to doubt the
severity or even existence of recent ill effects Stine’s counsel asserted. The extent of Stine’s weight loss was never
established, but was surely not the 20 pounds claimed by Rajan. Nor did any evidence support Rajan’s claims
of an allergic reaction, hives, a growing cyst under one arm, him being “racked
with pain†or suffering “extraordinary side effects,†or even whether such
effects could be attributed to the conventional drug Stine had taken for the
week preceding the hearing. Hergenrather
never testified to those things, and Stine did not testify at all. Hergenrather spoke of Stine having marked
abdominal tenderness during his physical examination of him five week earlier,
but he conceded that this was based on self-reports from Stine, whom the court
reasonably felt was manipulative and not very credible.
Then
there was the suspiciously manipulative decision by Stine not to take any
conventional medication for the first four weeks of his incarceration. Hergenrather had testified that most of his
patients used conventional drugs in addition to marijuana, and he would
prescribe them for any of his patients during flare-ups.
No
evidence beyond Stine’s self-reporting to Hergenrather supported that he had
tried using conventional prescription drugs for ulcerative colitis. Stine told
Hergenrather that he had used “five different drugs,†yet named only
Asacol, and Hergenrather could not find mention of any of those drugs in the
medical records, only references to antibiotics and pain relievers given for
abdominal discomfort. Absence of the
medical records surely, and reasonably, heightened the court’s skepticism, for
it would seem implausible that a prescription drug, if ordered, would not be
mentioned. Interestingly, too, Stine’s
report of problems or complaints concerning conventional drugs were not of side
effects, but that they did not relieve his symptoms (see fn. 4,
And while Stine did self-report getting good relief from smoking
marijuana, there was no mention of his having tried any synthetic form of THC,
the drug’s psychoactive cannabinoid, which Stine’s briefing notes is available
in pill form. (People v. Rigo (1999) 69 Cal.App.4th 409, 413-414.) We do not suggest that Stine had to show that
he had exhausted every available alternative to marijuana, but the record did
not compel the conclusion that he had tried any. Even if the court was inclined to assume for
sake of argument that Stine had tried Asacol for the previous week, the record
does not establish his dosage, whether that dosage was at a therapeutic level,
or whether he took it consistently.
The
court’s (and prosecutor’s) concern about “motivation†was also supported by the
record. Not only might Stine logically
be motivated to get the euphoric high of THC in the marijuana, rather than use
other drugs, but his motion sought immediate release on electronic home
monitoring in order to use it. It was
reasonable to conclude that he was leveraging a claimed urgent need for medical
marijuana as a means to get out of jail, a situation we do not find in any
reported decision.
No
abuse of discretion is shown.
Disposition
The order denying modification is
affirmed.
_________________________
Kline,
P.J.
We
concur:
_________________________
Haerle,
J.
_________________________
Richman,
J.
A133781,
People v. Thomas Marshon Stine
name="_ftn1" title=""> [1] All undesignated further section references
are to the Health and Safety Code.
name="_ftn2" title=""> [2] “Under the Lent test and settled review principles: ‘We review conditions of probation for abuse
of discretion. [Citations.] Generally, “[a] condition of probation will
not be held invalid unless it ‘(1) has no relationship to the crime of
which the offender was convicted, (2) relates to conduct which is not in
itself criminal, and (3) requires or forbids conduct which is not
reasonably related to future criminality . . . .’ [Citation.]â€
[Citation.] This test is
conjunctive—all three prongs must be satisfied before a reviewing court will
invalidate a probation term.
[Citations.] As such, even if a
condition of probation has no relationship to the crime of which a defendant
was convicted and involves conduct that is not itself criminal, the condition
is valid as long as the condition is reasonably related to preventing future
criminality. [Citation.]’ [Citations.]â€
(Leal, supra, 210 Cal.App.4th at p. 840.)
