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People v. Brooks

March 16, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT
v.
THOMAS THEODORE BROOKS, DEFENDANT AND APPELLANT.



(San Luis Obispo County Super. Ct. No. F397300). Ernest J. Borunda, Judge.

The opinion of the court was delivered by: Gilbert, P.J.

CERTIFIED FOR PUBLICATION

Thomas Theodore Brooks has a physician's recommendation for medical marijuana use. (Health & Saf. Code, § 11362.5, subd. (d).)*fn1 Nevertheless, we conclude circumstances here permit the trial court to impose a probation condition barring Brooks's use of medical marijuana. We affirm.

FACTS

In December 2006, Brooks was arrested for possession of marijuana and methamphetamine. In February 2007, he pled guilty to one count of possession of methamphetamine. Brooks waived Proposition 36 probation (Pen. Code, § 1210.1, subd. (b)(4)), and the trial court placed him on formal probation for three years. Among the terms and conditions of probation was that Brooks not be in possession of illegal drugs unless on recommendation of a physician pursuant to Proposition 215, the Compassionate Use Act (CUA), section 11362.5 et seq.

In January 2009, the police stopped Brooks for a traffic violation and found approximately two pounds of marijuana in his car. The quantity and packaging led them to arrest Brooks for possession of marijuana for sale.

Instead of bringing a separate charge, the prosecution moved to revoke Brooks's probation. A contested probation violation hearing was held in February 2009. Brooks testified that the marijuana was for his personal use, he cooked it into a variety of foods, and that at the time of his arrest he showed the police a marijuana recommendation from a physician.

Doctor David Bearman testified he gave Brooks a marijuana recommendation in January 2007. Bearman said that two pounds was a reasonable amount for personal use, particularly for someone who ingested it by means other than smoking. Bearman had given Brooks the recommendation for asthma, irritable bowel syndrome and shoulder pain.

The court found Brooks possessed marijuana for sale, not personal use. It found him in violation of probation. It reinstated probation but modified the terms to prohibit Brooks from any use or possession of controlled substances.

DISCUSSION

I.

Brooks contends that as a matter of law the court cannot impose a probation condition barring the use of doctor-recommended medical marijuana.

In 1996, the electorate passed Proposition 215, the CUA, later codified as section 11362.5. Subdivision (d) of the section provides: "Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician."

In People v. Bianco (2001) 93 Cal.App.4th 748, the appellate court held that section 11362.5 is not a defense to a violation of probation that directs the defendant to "obey all laws." (Id. at pp. 751-752.) It reasoned that marijuana use, even with a doctor's recommendation, is a violation of federal law. (Id. at p. 753) The court further reasoned that, federal law aside, a probation condition can prohibit ...


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