APPEAL from a judgment of the Superior Court of Tuolumne County. Eric L. DuTemple, Judge. (Super. Ct. No. CRF24200)
The opinion of the court was delivered by: Wiseman, J.
CERTIFIED FOR PUBLICATION
We consider whether an authorized medical marijuana user is, based on that fact alone, unamenable for drug recovery treatment and therefore not an appropriate candidate for Proposition 36*fn1 probation. Although the medical use of marijuana may be considered by the court in establishing the terms and conditions of probation under Prop. 36 and in crafting the treatment to be provided, we conclude the authorized use of medical marijuana does not by itself make a nonviolent drug offender unamenable to the treatment mandated by Prop. 36.
Procedural and Factual Histories
In 2007, appellant Brian Clifford Beaty admitted transporting and possessing methamphetamine in violation of Health and Safety Code,*fn2 section 11379, subdivision (a) and § 11377, subdivision (a). At sentencing, the trial court suspended imposition of sentence and placed Beaty on Prop. 36 probation for a period of five years. The terms of Beaty's probation included the usual restrictions on the use of any unauthorized drugs, narcotics, or controlled substances and an order that he not use any controlled substance without a prescription from a medical doctor. Beaty was also ordered to enroll in, participate in, and complete a drug treatment program.
As the result of a motorcycle accident in 1998, Beaty is disabled. He suffers from chronic pain, slurred speech, and slow reaction times. At some point, Beaty inquired about the possibility of using marijuana for pain release and to help with anxiety and stress. He was referred to Dr. Fry who prescribed the use of marijuana for pain relief, appetite control, anxiety management, and blood pressure reduction. Beaty meets with Dr. Fry once a year for a medical evaluation and a renewal of the marijuana prescription. Beaty admits that he uses marijuana on a daily basis.
Beaty also testified that he was referred to Dr. Fry by "[local physician] Nick Dobler," his treating doctor. Later Beaty explained that, although Nick Dobler is not a physician, he works under Dr. Hoenes. A check of the California Department of Consumer Affairs web site indicates that Nicholas Dobler is a physician's assistant practicing in Tuolumne County. ( (as of Jan. 26, 2010).) Apparently it is Dobler whom Beaty sees on a regular basis. His last visit to Dobler was two weeks prior to the hearing.
When placed on Prop. 36 probation, Beaty told his probation officer that he had the medical marijuana prescription and about his use of marijuana. The officer told Beaty that all his medications must be approved by the Prop. 36 team. He was also advised that he could not use marijuana, even though prescribed, while on Prop. 36 probation. Beaty was counseled by his attorney that his use was legal, so he continued to use marijuana on a daily basis for medicinal purposes. Not surprisingly, Beaty tested positive for marijuana each time he was tested.
In November 2007, the dirty tests were the basis for a five-count petition alleging that Beaty had violated his probation by testing positive five times. At the subsequent probation revocation hearing, the court found that the allegations were true and that Beaty had tested positive as alleged, but concluded that Beaty had an affirmative defense because he had a prescription for the medical use of marijuana and an established relationship with the prescribing physician. The court modified the terms of Beaty's probation and ordered that he meet with probation to review guidelines for the medical marijuana program. The court also ordered that Beaty comply with probation's policy concerning the use of medical marijuana.
In January 2008, the probation department filed a second petition alleging that Beaty had violated probation by failing to appear for a scheduled group meeting at his treatment service provider. Beaty admitted this violation and was ordered to perform eight hours of community service. This was the only meeting he missed.
In February 2008, Beaty's probation officer, Anthony Johnson, met with him to go over the terms of the court's medical-marijuana-use policy. Beaty was asked by Johnson to sign the policy, however, Beaty refused to do so. The policy placed stringent conditions on Beaty's use of medical marijuana, including that he obtain verification every three months from a physician of his continued need for marijuana; that he not be in possession of more than six mature plants or 12 immature plants and up to one-half pound of dry marijuana; that he only buy his medical marijuana from a licensed reputable business; and that once a THC (the active ingredient of marijuana) inhaler becomes available, no other form of medical marijuana be used. These restrictions are more restrictive than those found in Proposition 215*fn3 and its enabling statutes.*fn4
In May 2008, the probation department filed a third petition alleging that Beaty had violated his terms of probation by (1) failing to sign the required county policy for medical use of marijuana, and (2) failing to provide a quarterly verification of the physician's order for use of marijuana for medicinal purposes. Additionally, the petition as amended added a third allegation, that Beaty was unamenable for treatment under Prop. 36, and asked that he be placed on formal probation.
At the probation revocation hearing, the trial court sustained only the third allegation, finding Beaty unamenable for treatment based on the testimony of two experts, Beaty's drug abuse counselor and the clinical director of the treatment program in which Beaty was enrolled. Both opined that the use of marijuana was inconsistent with the goal of abstinence, and that by using marijuana on a daily basis, Beaty was under the influence of a mind-altering substance that posed a conflict of interest in substance abuse group counseling sessions. Johnson testified that he believed Beaty's marijuana use complied with the physician's recommendation and that Beaty had provided the annual certification required under Prop. 215. Beaty was not allowed to participate in group sessions because Beaty's drug counselor, Don Merchant, believed Beaty's daily use equated to Beaty being under the influence of marijuana at all times. Individuals under the influence are not allowed to participate in recovery groups.
The court acknowledged the tension between the intent of Prop. 36 that drug abusers recover from drug use, and the intent of Prop. 215 that individuals not suffer penal consequences for the medicinal use of marijuana. It found that Beaty was unamenable to treatment because, for someone with a past history of using methamphetamine, the daily use of marijuana poses a danger of future criminality and future use of methamphetamine. The court observed that Prop. 36's purpose is to provide treatment in order for a person convicted of a nonviolent drug offense to "build a solid foundation in recovery so they can remain clean and sober and not continue their use."
The court revoked Beaty's Prop. 36 probation and sentenced him to a term of 30 days in county jail, which was then stayed during the pending appeal. The order was modified on September 3, 2008, to impose a fine of $1,050. Both orders have been appealed (case Nos. F055868 and F056467). The matters were ...