Super. Ct. No. CRF060003067
The opinion of the court was delivered by: Cantil-sakauye,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant, Vernon Emile Smith, Jr., appeals the trial court's denial of his request to use physician-recommended marijuana while on probation, pursuant to Health and Safety Code section 11362.795, subdivision (a) (§ 11362.795(a)).*fn1 The trial court denied the request stating, without explanation, that defendant's showing was "insufficient" and noting that defendant had previously violated his probation (by committing misdemeanor vandalism). We conclude that the trial court did not properly exercise its discretion in denying defendant's request and we remand for further proceedings.
In December 2006, the Sutter County District Attorney filed a criminal complaint against defendant charging him with the following crimes: (1) transporting methamphetamine; (2) possessing methamphetamine for sale; and (3) giving away, offering to give away, transporting, or offering to transport or attempting to transport, not more than 28.5 grams of marijuana. In June 2007, defendant pled guilty to possessing methamphetamine for sale, and defendant was placed on probation subject to certain conditions, one of which (condition 10) precludes him from using or possessing marijuana, with or without a physician's recommendation/prescription, without prior court approval. In April 2009, defendant admitted violating his probation by committing misdemeanor vandalism. Defendant was reinstated on probation and given seven days in jail.
In July 2009, defendant filed a motion under section 11362.795(a) for an order permitting him to use medical marijuana while on probation. With his motion, defendant submitted an embossed "Physician's Statement" signed by Philip A. Denney, M.D., and dated September 24, 2008. The Physician's Statement reads: "This certifies that [defendant] born on 06-20-86 was examined in my office. He/she has a serious medical condition which, in my professional opinion, may benefit from the use of medical cannabis. I have discussed the potential risks and benefits of medical cannabis use with the above named person. I approve his/her use of cannabis as medicine. Use of this medication alone, with alcohol or other mind-altering medications may produce physical or mental impairment affecting the performance of potentially dangerous tasks. Use caution until you know how this medication affects you. Use the least amount of medical cannabis needed to relieve symptoms. I recommend that you not use tobacco. Please use discretion and respect the rights of others. This approval will expire one year from the above date [09-24-08]." The bottom of the Physician's Statement contains a separate "Patient Declaration" signed by defendant and dated September 24, 2008. This declaration states: "I [defendant], the undersigned, declare that all the information provided to the above physician is true and correct under penalty of perjury. I am a California resident."*fn2 Additionally, in connection with the motion, defense counsel submitted a declaration in which he stated, among other things, that defendant "wishes to be able to possess and use medicinal marijuana."*fn3
In July 2009, the trial court heard defendant's motion. The parties orally argued their respective positions based on their written submissions; no testimony was taken. At the hearing, the court pondered "how would we possibly know that the medical marijuana that has been prescribed, in quotes, to Mr. Smith is effective since the prescription was obtained after he was placed on probation, and up until this moment, he still is prohibited from possessing or consuming marijuana with or without a recommendation?" The court continued, "[s]o in looking at the physician's statement and looking at the--well, the physician's statement says that Mr. Smith has a serious medical condition which is unspecified which in my professional opinion may benefit from the use of medical cannabis. And I see in the motion by [defense counsel] the defendant has tried alternatives to medicinal marijuana with little positive effect. [¶] My question is, is there some reason to believe medical marijuana will be effective for Mr. Smith?"
Defense counsel rejoined: "Number one, I'm not sure that's the question that needs to be answered for the motion. The medicinal marijuana laws are clear. If one seeks the consultation of a physician and a physician recommends medicinal marijuana, the court is not in a position to go behind the doctor/patient privilege and inquire as to the efficacy of the doctor's statement. That's his recommendation. That's between he [sic] and the patient. I don't know if the court is in a position to go behind that statement. If the other remedies have been ineffective, then the medicinal marijuana may be effective. . . . And if we had to show in each case that the medicinal marijuana would be effective, we would never be able to make that showing absent abuse of medicinal marijuana. In other words, you have to violate his probation to make the claim."
The court recognized the "conundrum" but denied the motion. The court stated that "simply establishing that the defendant has been given a prescription and states that--which states that he may benefit from the use of medical cannabis is insufficient, but the court also notes Mr. Smith is being placed on probation, has not been in compliance with probation, has one violation of probation already. The court does not find good cause to modify the terms and conditions of probation and will deny the request." This timely appeal followed.
Defendant contends that the trial court abused its discretion in denying his request to use medicinal marijuana while on probation. Defendant concedes that "Health and Safety Code section 11362.795, which specifically authorizes a court to modify the terms of probation to permit the probationer to use medical marijuana, does not explain what factors the court should consider. [Defendant], however, submits that the court's refusal to allow [him] to use marijuana, with a doctor's recommendation, was arbitrary and capricious, and did not serve the ...