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The People v. Jack Allen Pritchard

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Yolo


March 1, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JACK ALLEN PRITCHARD, DEFENDANT AND APPELLANT.

(Super. Ct. Nos. CRF090005765, CRF081202)

The opinion of the court was delivered by: Hoch ,j.

P. v. Pritchard CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Jack Allen Pritchard, appeals the trial court's denial of his request to use physician-recommended marijuana while on probation (Health & Saf. Code, § 11362.795(a)).*fn1 The trial court denied the request by stating, "I'm not going to confirm anybody's need for medical marijuana." We agree with the parties that the trial court abused its discretion in denying defendant's request and we remand for further proceedings.

BACKGROUND

In 2008, defendant pled no contest to transporting marijuana and was placed on Proposition 36 probation, on condition he successfully complete a substance abuse program and abstain from the use or possession of illegal drugs, including marijuana.*fn2

In a subsequent probation search of defendant's home, officers found marijuana, a medical marijuana card, and psilocybin mushrooms.

Charged with possession of marijuana for sale, possession of the mushrooms, and child endangerment (in view of evidence his young daughter could have had access to the drugs), defendant pled no contest in the instant action (case number 09-5765) to possessing the psilocybin mushrooms, a controlled substance.*fn3 The trial court placed defendant on formal probation with a number of terms and conditions, including that he complete a 90-day outpatient treatment program and that he abstain from the use or possession of illegal drugs, including marijuana.

Before sentencing, defense counsel sought permission for defendant to use marijuana medicinally, after he completed his 90-day treatment program: "[Defendant] is on Prop 36 for a marijuana transportation case which occurred during a time when he had lapsed in getting his Prop 215 recommendation. I provided the Court and counsel with his recommendations that go back to 2002. There is a lapse in there. From the probation report, the Court can see that he has a documented need. This is not an 18-year-old with an insomnia problem, he has great medical disabilities. That's why he's on SSI.[*fn4 ] When he was on Prop 36, he complied with the program and didn't use at all. It was -- all of his drug tests were clean. He did not know that he had to come back to court to ask for permission in order to use once he was out of the program. He's asking that he get that permission --

"THE COURT: Permission to do exactly what?

"[Defense Counsel]: To use marijuana medicinally once he's completed his 90-day program. The reason that I ask, your Honor, is that if he does not, he will be taking Soma, Klonopin, and Vicodin. He has a liver problem. All of those drugs are more powerful and more dangerous than marijuana. He has documented -- I'm sorry -- I provided the doctor's note.

"THE COURT: I don't contest your analysis, although I have two problems with this. Number one, I'm not a doctor. I don't have the right letters after my name and don't decide what drugs or substances are or are not good for people's medical conditions. Number two, the People of the State of California decided that it is appropriate for people to have medical marijuana. That doesn't mean I have to sign orders blessing it, and I'm not about to put my signature on anything.

"[Defense Counsel]: Can I note [] section 11362.795 -- I have a copy for the court if you'd like. You may be aware of it -- and this indicates that the Court may confirm he's able to use medical marijuana, but the analysis the Court is required to use is to be consistent with the Prop 215 -- the Prop 215 laws.

"THE COURT: I'm not going to confirm anybody's need for medical marijuana. Next question." (Paragraph breaks omitted.)

DISCUSSION

Defendant contends, and the People agree, that the court abused its discretion in denying his request to use medicinal marijuana while on probation. We also agree.

In sentencing criminal defendants, the Legislature has endowed trial courts with "broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. (Pen. Code, § 1203 et seq.) 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 . . . .' (People v. Dominguez (1967) 256 Cal.App.2d 623, 627.) Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted.) As another appellate court recently reiterated, "it is well settled that the trial court has the discretion to impose probation conditions that prohibit even legal activity." (People v. Brooks (2010) 182 Cal.App.4th 1348, 1352 (Brooks), citing Lent, at p. 486.)

Section 11362.795, cited by defendant during sentencing, is part of the Medical Marijuana Program (MMP) enacted by the Legislature and effective as of 2004. (Brooks, supra, 182 Cal.App.4th 1348, 1352.) Section 11362.795, subdivision (a), provides in pertinent part that "(1) [a]ny 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. [¶] (2) 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. [¶] (3) During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana. [¶] (4) The court's consideration of the modification request authorized by this subdivision shall comply with the requirements of this section."

Accordingly, before a court may "confirm that [a probationer] is allowed to use medical marijuana while he or she is on probation," it must first determine whether defendant is "eligible to use marijuana pursuant to Section 11362.5." (§ 11362.795, subd. (a)(1).)

Section 11362.5, known as the Compassionate Use Act (CUA), is an initiative measure adopted by the voters in 1996 as Proposition 215. (People v. Kelly (2010) 47 Cal.4th 1008, 1012.) The CUA exempts eligible patients from prosecution or sanction for the possession and cultivation of marijuana and affords a defense to seriously ill Californians who obtain and use marijuana for medical purposes; it "includes within that category a list of illnesses, including arthritis, and 'any other illness for which marijuana provides relief.' [Citation.] To meet the requirements of section 11362.5 it is the defendant's burden to show 'that he or she was a "patient" or "primary caregiver," that he or she "possesse[d]" or "cultivate[d]" the "marijuana" in question "for the personal medical purposes of [a] patient," and he or she did so on the "recommendation or approval of a physician" (§ 11362.5(d)).'" (People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1441 (Tilehkooh), italics omitted.)

By logical extension, when (as here) a probationer seeks to establish his or her eligibility under the CUA, he or she must show that he or she is a "patient," that he or she seeks to "possess[]" the "marijuana" in question "for [his or her] personal medical purposes," and that he or she has the "recommendation or approval of a physician" to do so. (§ 11362.5, subdivision (d); cf. Tilehkooh, supra, 113 Cal.App.4th at p. 1441.)

Of course, the trial court was not required to exercise its discretion by granting defendant's request to be allowed to use the medicinal marijuana. In People v. Moret (2009) 180 Cal.App.4th 839, for example, the appellate court affirmed the trial court's exercise of its discretion in making an order granting probation on condition that the defendant abstain from using medical marijuana notwithstanding a physician's recommendation. In Moret, however, the Court of Appeal found that the defendant's conduct raised a genuine question about his honesty, his acquisition of a medical marijuana recommendation was "extremely recent"; thus, the trial court "quite justifiably" doubted defendant's claim that he needed medical marijuana for self-purported migraine headaches. (Id. at pp. 845-850; see also Brooks, supra, 182 Cal.App.4th at pp. 1352-1353 [prohibiting defendant probationer from using medical marijuana was not an abuse of discretion because Brooks failed to present a "compelling reason" for allowing his medical marijuana use and the prohibition was "directly related" to his probation violation for illegal marijuana possession].)

Section 11362.795 requires the court to exercise its discretion in acting on that request, and to state its decision and reasons for its decision on the record. (§ 11362.795, subd. (a)(2).) "'[E]xercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Generally, a trial court abuses its discretion when it fails or refuses to exercise its discretion (People v. Orabuena (2004) 116 Cal.App.4th 84, 99) or when its determination is arbitrary, capricious, or exceeds the bounds of reason. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)

From the record, it appears the trial court either failed to exercise its discretion, or did so arbitrarily; either circumstance constitutes an abuse of discretion. The court's only stated reason for denying defendant's request to use medical marijuana while on probation did not consider defendant, his crime, or his individual circumstances. By declaring, "I'm not going to confirm anybody's need for medical marijuana," the court indicated it would deny such a request without regard to the circumstances. That was an abuse of discretion.

We agree with the parties that the matter must be remanded.

DISPOSITION

We reverse the trial court's denial of defendant's request to use medical marijuana while on probation and remand with instructions to hold new proceedings on the matter in conformity with Health and Safety Code section 11362.795, subdivision (a).

We concur:

BLEASE , Acting P.J.

NICHOLSON ,J.


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