(Super. Ct. Nos. CRF090005765, CRF081202)
The opinion of the court was delivered by: Hoch ,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 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.
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 ...