P. v. Nunez
Filed 6/10/13 P. v. Nunez CA1/1
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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE L.
NUNEZ,
Defendant and Appellant.
A135803
(Sonoma
County
Super. Ct.
No. SCR-601471)
Defendant
entered a plea of no contest to one count of
Saf. Code, § 11379, subd. (a)), and one count of
(Health & Saf. Code, § 11378).
imposition of sentence was suspended and defendant was placed on probation for
three years, on the conditions, among others, that he comply with a drug
treatment program, and refrain from use of medical marijuana if so directed by
the program. He argues in this appeal
that the proscription against his use of medical marijuana is invalid. We conclude that under the circumstances
presented the trial court did not abuse its discretion by ordering defendant to
abstain from marijuana use as a condition of his probation, and affirm the judgment.
STATEMENT OF
FACTS
On
January 31, 2011, an
undercover detective for the Santa Rosa Police Department arranged by telephone
to purchase methamphetamine from defendant.
Later that day, defendant and the detective met in the parking lot of
the Santa Rosa department store,
where defendant sold the detective a 3.35-gram package of methamphetamine for
$240. A second purchase of a package of
1.62 grams of methamphetamine from defendant was initiated by an undercover detective
for the Santa Rosa Police Department, and completed on the afternoon of February 3, 2011. A subsequent search of defendant’s residence
and vehicle resulted in seizure of additional methamphetamine, along with
baggies and other items used to package methamphetamine.
Following
defendant’s entry of his no contest plea, at the sentencing hearing on February 15, 2012, the court placed
defendant on formal probation for 36 months upon the conditions that he obey
all laws, complete all counseling programs, and not “possess or use any controlled
substances or associated paraphernalia without a valid prescription.†Defendant advised the court that he intended
to retain his “215†medical marijuana card prescribed to him for his “back
problem.†The court directed defendant
to carry a “valid 215†medical marijuana card and “show proof of that†to his
probation officer.
On
May 4, 2012, defendant appeared at a hearing to inform the court that the drug
counseling program in which the probation department had placed him, the Day
Reporting Center, prohibited use of marijuana, including medical
marijuana. Defendant requested placement
in a “different program,†or a court order allowing him to use medical
marijuana “while he’s in the program.â€
The court set an additional hearing to grant defendant the opportunity
to present “medical proof†or other witnesses to establish that medical
marijuana is the only alternative to “deal with his pain.†The probation department was also asked to
present an “oral report†at the hearing on defendant’s use of medical marijuana
and “participation in the drug program.â€
At
the subsequent hearing defense counsel offered to the court “a note†of
unexplained content from defendant’s doctor, and stated that defendant had been
provided with “medication for pain, which is a narcotic, Norco or Vicodin,†in
addition to his medical marijuana. The
drug counseling program disallowed defendant’s medical marijuana use, but not
his use of prescription Norco. Defense
counsel responded to an inquiry from the court by acknowledging that
pharmaceutical alternatives such as Norco exist to relieve defendant’s pain,
but asserted that defendant “has bad reactions to Norco and would prefer to use
the marijuana in place of the Norco.â€
The defense was not prepared to present medical testimony that defendant
had no alternative “except smoke marijuana.â€
The probation department represented to the court that the Day Reporting
Center was the counseling program defendant needed to succeed, in light of his
history and commitment offenses, and all those who participate in that program
are not permitted to smoke marijuana.
The
court exercised its discretion in favor of ordering defendant to follow the
directives of the probation department and abstain from use of medical
marijuana while in a drug counseling program.
This appeal followed.
DISCUSSION
Defendant
challenges the trial court’s decision to disallow his lawful use of medical
marijuana while on probation. He
maintains that use of “medical marijuana obtained pursuant to a physician’s
recommendation†must be treated no differently than “any other lawfully
prescribed medication†for back pain relief, “such as Norco.†He claims the court therefore erred by
requiring the defense to present “medical evidence†that “there is absolutely
nothing else he can do except smoke marijuana†to alleviate his pain. Defendant asserts that the court abused its
discretion by effectively imposing a probation condition that proscribes his
medical marijuana use.
We of course have no quarrel
with the proposition urged by defendant that his medical marijuana use is not
unlawful, although existing law creates a limited immunity to certain crimes
rather than a blanket right to lawfully use marijuana for medical
purposes. (People v. Mower (2002) 28 Cal.4th 457, 470; Browne v. County of Tehama (2013) 213 Cal.App.4th 704, 711;
Cal.App.4th 747, 774.) Marijuana remains
a schedule I controlled substance in California. (Ross
v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 923.) “Both federal and California laws generally
prohibit the use, possession, cultivation, transportation, and furnishing of
marijuana. However, California statutes,
the Compassionate Use Act of 1996
(CUA; Health & Saf. Code, § 11362.5, added by initiative, Prop. 215, as
approved by voters, Gen. Elec. (Nov. 5, 1996)) and the more recent Medical
Marijuana Program (MMP; § 11362.7 et seq., added by Stats. 2003, ch. 875, § 2,
p. 6424), have removed certain state law obstacles from the ability of qualified
patients to obtain and use marijuana for legitimate medical purposes. Among other things, these statutes exempt the
‘collective[] or cooperative[] . . . cultiva[tion]’ of medical
marijuana by qualified patients and their designated caregivers from prosecution
or abatement under specified state criminal and nuisance laws that would
otherwise prohibit those activities.
(§ 11362.775.)†(
Health & Wellness Center, Inc. (2013) 56 Cal.4th 729, 737, fn.
omitted.)
The
MMP was enacted by the Legislature to clarify the scope of the CUA, and
“created a voluntary program for the issuance of identification cards to
qualified patients and primary caregivers.
(§ 11362.71.) [¶] The MMP
also ‘immunizes from prosecution a range of conduct ancillary to the provision
of medical marijuana to qualified patients. [Citation.]’ [Citation.]
‘Section 11362.765 accords qualified patients, primary caregivers, and
holders of valid identification cards, an affirmative defense to certain
enumerated penal sanctions that would otherwise apply to transporting,
processing, administering, or giving away marijuana to qualified persons for
medical use.’ [Citation.] The MMP provides that specified individuals
‘shall not be subject, on that sole basis,
to criminal liability’ under sections 11357 (possession), 11358 (cultivation),
11359 (possession for sale), 11360 (transportation), 11366 (maintaining
location for selling, giving away or using controlled substances), 11366.5
(managing location for manufacture or storage of controlled substance), or
11570 (‘drug den’ abatement law).
(§ 11362.765, subd. (a), italics added.)†(Browne
v. County of Tehama, supra, 213 Cal.App.4th 704, 712–713.) In addition, section 11362.795, subdivision
(a)(1), specifically provides that, “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.â€
name="_ftnref3" title="">[3]
The
validity of probation conditions prohibiting use of otherwise authorized or
prescribed marijuana use have been considered and resolved by this court in
recent opinions. The governing test is
“whether the defendant’s asserted right to use marijuana for medical purposes
satisfies the CUA.†(
1348, 1351–1352.) In
829, 837 (Leal), another division of
this court was presented with the issue of “a probation condition banning
marijuana possession and use, even as authorized by the CUA,†where, as here,
“circumstances suggest to a sentencing court that a defendant would be
rehabilitated†by a drug treatment plan that recommended no use or possession of
controlled substances, including marijuana.
Following a comprehensive examination of the validity of probation
conditions in the context of authorized medical marijuana use, the court
adopted 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 Lent test[
authorization; and third, we consider competing policies governing the exercise
of discretion to restrict CUA use.†(
As in
Leal, we have no reason based on the
record before us to question the legitimacy of defendant’s medical marijuana
card, so we proceed “to the step-two question of whether a nexus to his crimes
or future criminality existed, under the Lent
test, to allow judicial interference†with defendant’s lawful use of medical
marijuana. (Leal, supra, 210 Cal.App.4th 829, 840.)
“A trial court has broad, but not unlimited, discretion in
setting the terms and conditions of probation.
[Citations.] On appeal, we review
the trial court’s exercise of that discretion under the abuse of discretion
standard. ‘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 . . . .â€
[Citation.]’ [Citations.] All three factors must be present for a
condition of probation to be invalid.
[Citation.] Furthermore,
‘[i]nsofar as a probation condition serves the statutory purpose of
“reformation and rehabilitation of the probationer,†[citation] it necessarily
follows that such a condition is “reasonably related to future criminality†and
thus may not be held invalid whether or not it has any “relationship to the
crime of which the offender was convicted.†’ [Citation.]
A trial court does not abuse its discretion unless its determination is
arbitrary or capricious or ‘ “ ‘exceeds the bounds of reason, all of
the circumstances being considered.’ †’ [Citation.]â€
(People v. Hughes (2012) 202
Cal.App.4th 1473, 1479 (Hughes).)
The
record provides ample support for a finding that a prohibition on defendant’s
marijuana use, although not criminal for purposes of the Lent test, has a relationship to the crimes of which he was convicted and is
reasonably related to deterring future criminality. He was convicted of drug offenses: one
count of sale of methamphetamine, and one count of possession for sale of
methamphetamine. The information
available to the sentencing court reveals that defendant actively and
repeatedly engaged in drug sales. He has
a lengthy, extensive history of theft and drug offenses, along with at least
intermittent drug use, and chronic alcohol abuse. He failed in a prior substance abuse
treatment plan, which resulted in revocation of his probation and imposition of
a state prison term. The sentencing court
was justified in finding that the residential treatment program identified by
the probation department was necessary to facilitate defendant’s successful
completion of probation. The probation
department indicated that the Day Reporting Center counseling program, which was considered
appropriate for defendant’s particular needs, did not permit marijuana use,
which was also an entirely reasonable restriction. On this record the Lent test is satisfied, and thus provides threshold discretion for
the court to interfere with authorized medical marijuana use. (Hughes,
supra, 202 Cal.App.4th 1473, 1481.)
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
829, 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.†(
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.†(Ibid.)
We
find no abuse of the court’s discretion here.
With the
record reflecting a need to limit or prohibit marijuana use for defendant’s
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. We agree with
defendant that he was not required to definitively prove marijuana was the only
existing treatment option for his back pain, but in this case he did not offer
evidence of an overriding medical need.
supra, 210 Cal.App.4th 829, 844.) Defendant expressed a preference, not a necessity, for
medical marijuana use as a pain medication.
His counsel acknowledged that medical alternatives were available to
treat defendant’s back ailment. No
testimony was presented that the nature and gravity of defendant’s
condition demanded marijuana to effectively
alleviate his symptoms. In fact, defendant had been treated with the prescription pain
medication Norco in the past, without any complaint of ineffectiveness. Counsel merely asserted defendant’s dislike
for the “way Norco makes him feel.†While
we recognize that continued use of medical marijuana by probationers may in
some cases be critical, the evidence falls well below that level in the present
case. The court’s finding that the
balance of competing policies weighs in favor of restraining defendant’s use of
medical marijuana while he participates in a
discretion.
title="">[6]
Accordingly,
the judgment is affirmed.
__________________________________
Dondero, J.
We concur:
__________________________________
Margulies, Acting P. J.
__________________________________
Banke, J.
name="_ftn1" title="">[1] As part of the negotiated disposition of the case,
other charges of possession of methamphetamine, sale of methamphetamine, and
possession of methamphetamine for sale were dismissed, as was an allegation of
a prior strike conviction. All further
statutory references are to the Health and Safety Code.
name="_ftn2" title="">[2] In light of the no contest plea we will recite the
facts pertinent to the underlying offenses only as necessary to the issues
presented on appeal.
