IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
January 18, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
GARY ALLEN CROSIER, DEFENDANT AND APPELLANT.
(Super. Ct. No. CM030572)
The opinion of the court was delivered by: Hull , J.
P. v. Crosier
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Gary Allen Crosier entered a negotiated plea of no contest to one count of possessing marijuana for sale. (Health & Saf. Code, § 11359; unspecified section references that follow are to the Health and Safety Code.) The court suspended imposition of sentence and placed defendant on probation for three years.
On appeal, defendant asserts that the trial court abused its discretion in refusing to permit him to use medical marijuana while on probation. We affirm the judgment.
FACTS AND PROCEEDINGS
Given the nature of defendant's claim, we dispense with a statement of the underlying facts and instead focus on the sentencing hearing.
Defendant entered a plea of no contest to possession of marijuana for sale. Before sentencing, he filed a petition with the trial court pursuant to section 11362.795, subdivision (a)(1), which permits a defendant to request the court confirm the permissible use of medical marijuana while on probation.
In his supporting declaration, defendant stated that he suffered from three mental conditions: "1) intermittent explosive disorder coupled with bi-polar disorder; 2) severe anti[-]social personality disorder; and 3) post[-]traumatic stress disorder." He stated that he also suffered from various physical conditions, specifically "1) Hepatitis; 2) severe arthritis; 3) degenerative bone disease in neck; 4) two disc protrusion[s] (lower back injury due to being thrown off second tier while in custody); 5) torn meniscus and ACL in right knee[; and] 6) hip problems, with an unknown diagnos[i]s."
He added that he did not use prescription drugs because he had a "bad liver and kidney" and because psychotropic drugs left him in a stupor. According to defendant, medical marijuana kept him stable and allowed him to complete his tasks. He also stated that he had been told that, due to his liver disease, his life expectancy would be shortened with traditional medications.
Defendant submitted a letter from the doctor who prescribed his medical marijuana, Dr. Phillip Denney. Dr. Denny said he had been treating defendant since March 2006, when defendant came to his office due to chronic pain in his right knee and hip from an earlier injury. Defendant found that marijuana helped manage his pain and helped him sleep; defendant "much preferred Cannabis to prescription medications[,] particularly narcotics."
Dr. Denny said a review of defendant's medical history revealed a diagnosis of chronic Hepatitis C that had been "largely inactive and not currently treated." The doctor's examination of defendant found no signs of active hepatitis. However, the examination did reveal "positive findings of pain, stiffness and decreased range of motion about the lumbar spine, right hip and right knee."
The doctor reported that he had reviewed defendant's records from the Riverside County Regional Medical Center and confirmed pain management services had been utilized in accordance with defendant's history.
Dr. Denny concluded that defendant suffered from a serious medical condition that benefitted from the use of medical marijuana. Dr. Denny or his associates approved this use annually from 2006 through the time of this prosecution in 2009.
The probation report also described defendant's medical condition. Defendant "reported he ha[d] hepatitis C and an accompany liver disorder, as well as 'two broken disks' in his back, and bad knees, hips, and right elbow." Defendant stated he took prescription medications, including Vicodin (as needed), prescribed by the Feather River Clinic, and Ativan, prescribed by Dr. Long of Butte County Behavioral Health. Defendant "reported he was diagnosed as suffering from 'Bipolar Disorder' and 'Intermittent Explosive Disorder' by the California Department of Corrections in 2004 or 2005. He was diagnosed as suffering from 'Anti-social Disorder' and 'Post-Traumatic Stress Disorder' by Dr. Long of Butte County Behavioral Health in 2009."
Defendant told the probation officer that medical marijuana was a necessity. He said, "'I have to use it. I need to. If I don't, I'll have to take pills and the pills will kill me in six months. My viral load is over 200 million, but I can function because of the marijuana.'" He added, "'Why I use marijuana, I'm a naturalist. It's against my religion to use drugs.'"
The prosecutor strenuously opposed defendant's petition to use medical marijuana while on probation. She attacked the credibility of Dr. Denny, whom she described as a "noted 'Pot Doc.'" She added, "The District Attorney would be more sympathetic or impressed if the discussion came from a primary care physician who had personal knowledge or actual diagnostic materials rather than self[-]report and old records from Riverside County." Dr. Denny did not indicate that there had been any communication between his office and the Feather River Clinic or Dr. Long. She pointed out that the age and origin of defendant's diseases were not clear, and that inconsistent information had been provided by defendant and Dr. Denny.
The prosecutor noted that although defendant asserted he suffered from hepatitis, Dr. Denny described the disease as inactive. Defendant said he suffered from three mental conditions, none of which were mentioned by Dr. Denny. And although defendant stated he did not use drugs and that it was "against [his] religion" to do so, he also told the probation officer that he used both Vicodin and Ativan.
At the sentencing hearing, the trial court set aside both the prosecutor's characterization of Dr. Denny as a disreputable "pot doc" and the prosecutor's opinion that medical marijuana was of doubtful use in treating defendant's conditions. The court continued, "However, I do agree that there are inconsistencies in the application. I find that it's unpersuasive and the Court is going to deny the application for exception to the no controlled substances, no use of marijuana, on the current record based on the application you've made . . . ."
The court added, "I'm not foreclosing [defendant] from coming back with a more persuasive and a consistent global presentation by a physician currently evaluating the defendant that he needs this marijuana for his alleged conditions, but at this point the Court will deny the application."
Defendant contends that the court erred in denying his petition to use medical marijuana while on probation. The People respond in part that defendant has forfeited this claim by failing to raise any objection at the time of sentencing. Defendant's claim is properly before us. His petition and argument at the hearing were sufficient to preserve this issue for appeal. However, it is meritless.
Trial courts have broad discretion to determine whether a defendant is suitable for probation and if so, under what conditions. (People v. Olguin (2008) 45 Cal.4th 375, 379.) "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.]' [Citation.] This test is in the conjunctive--all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Ibid.)
Although the Compassion Use Act of 1996 (§ 11362.5) allows for limited possession and use of marijuana upon the recommendation of a doctor, the Act does not preclude a court from prohibiting marijuana use during the term of probation. (People v. Brooks (2010) 182 Cal.App.4th 1348, 1352; People v. Moret (2009) 180 Cal.App.4th 839, 853, lead opn.) To the contrary. "[A] trial court has discretion to impose a no-marijuana-use probation condition on the holder of a medical marijuana card." (Moret, at p. 853, lead opn.) That is because "a probation condition can prohibit otherwise lawful conduct that is reasonably related to the defendant's criminal offense." (Brooks, at p. 1351.)
The language of section 11362.795 contemplates that a court may grant or deny the use of medical marijuana while on probation. Subdivision (a)(1) of the statute permits a defendant to "request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation," while subdivision (a)(2) requires that the "court's decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court." These provisions anticipate that a court may grant or deny a petition for the use of medical marijuana during the probationary period.
Here, the court found defendant's petition to be unpersuasive due to the "inconsistencies in the application." Defendant suggests that this statement is meaningless, but he ignores the context for the court's remark. The prosecutor had outlined and argued these discrepancies at length. For example, although defendant claimed medical marijuana was necessary for treating both physical and mental conditions, Dr. Denny described only defendant's physical problems. Defendant said using drugs other than marijuana was "against [his] religion," but he also told the probation officer that he used both Vicodin and Ativan. Defendant emphasized that he had hepatitis, which made the use of other drugs problematic, but Dr. Denny said that defendant's hepatitis was inactive and he offered no opinion about the possible effect of drugs on that condition.
Given these inconsistencies, the trial court acted well within its discretion in denying defendant's petition. Moreover, the court told defendant that this decision was subject to modification if he returned with "a more persuasive and a consistent global presentation by a physician currently evaluating the defendant that he needs this marijuana for his alleged conditions." Contrary to defendant's claim, there was no abuse of discretion.
Defendant also suggests that the court failed to comply with section 11362.795, subdivision (a)(2) in that the court minutes do not specify the reasons for denying defendant's petition. Instead, the minutes state only that defendant's request for medical marijuana was "denied without prejudice." Defendant's failure to raise this issue below forfeits any claim of error. (People v. Moret, supra, 180 Cal.App.4th at p. 854, lead opn.)
The judgment is affirmed.
We concur: BLEASE , Acting P. J. SCOTLAND , J.*fn1