Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Madera County. Edward P. Moffat II, Judge. Super. Ct. No. MCR019684
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J., and Kane, J.
After a bench trial, the court convicted appellant, Carl Branch, of possession for sale of marijuana (Health & Saf. Code, § 11359) and cultivation of marijuana (§ 11358). On January 17, 2007, the court placed Branch on five years’ probation on condition that he serve 60 days local time. One of Branch’s conditions of probation required him to “[o]bey all laws, [f]ederal, [s]tate and local.” On appeal, Branch contends the court abused its discretion when, over the defense’s objection, it required him to obey all federal laws. We will affirm.
Unless otherwise indicated, all further statutory references are to the Health & Safety Code.
Branch also raised three other contentions which we will not discuss because he withdrew them through a letter filed in this court on October 10, 2007. Additionally, the facts of Branch’s offenses are omitted because they are not germane to the issue he raises.
Branch contends that as written, the condition requiring him to obey all federal laws could be interpreted to proscribe the lawful use of medical marijuana. (See § 11362.5.) Thus, according to Branch, that condition should be modified to conform to “California law by specifying an exception for conduct which the compassionate use defense immunizes.” We will reject these contentions.
“In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.] ‘The court may impose and require ... [such] reasonable conditions[ ] as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.’ (Pen. Code, § 1203.1, subd. (j).) The trial court’s discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, we have interpreted Penal Code section 1203.1 to require that probation conditions which regulate conduct ‘not itself criminal’ be ‘reasonably related to the crime of which the defendant was convicted or to future criminality.’ [Citation.] As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or ‘“‘exceeds the bounds of reason, all of the circumstances being considered.’” [Citations.]’ [Citation.]” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.)
Here, the court acted within in its discretion in imposing the obey-all-laws condition because this condition is clearly aimed at regulating criminal conduct and is also related to Branch’s future criminality.
Section 11362.5 provides:
“(a) This section shall be known and may be cited as the Compassionate Use Act of 1996.
“(b)(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:
“(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
“(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.
“(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana. [¶]…[¶]
“(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.
“(d) 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.”
“The Compassionate Use Act of 1996 (the CUA) ensures that Californians who obtain and use marijuana for specified medical purposes upon the recommendation of a physician are not subject to certain criminal sanctions. [Citation.] Specifically, the CUA provides an affirmative defense to the crimes of [transporting marijuana,] possessing marijuana [citation] and cultivating marijuana [citation] for physician-approved personal medical purposes. [Citation.]” (People v. Wright (2006) 40 Cal.4th 81, 84-85, fn. omitted.)
Branch’s request to modify his obey-all-laws condition by specifying an exception for conduct that the CUA immunizes, in effect, amounted to a request that the trial court include in it a potential affirmative defense to allegations that he violated his probation by committing one of the marijuana offenses noted above. This modification is unnecessary and its ramifications impractical.
An affirmative defense must be raised and proved by the defendant. (People v. George (1994) 30 Cal.App.4th 262, 275.) Further, a probationer who complied with the conditions of section 11362.5 would always be able to raise the CUA as a defense to alleged probation violations involving the possession, transportation, or cultivation of marijuana. (People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1437.) Thus, it was unnecessary for the trial court to specify that the CUA would be a defense to an alleged probation violation premised on Branch’s possession, transportation or cultivation of marijuana if he complied with the requirements to assert that defense.
Moreover, Branch has not provided any authority for his implicit assertion that affirmative defenses must be included in a condition of probation requiring a defendant to obey all laws. Nor would such a requirement be practical. First, it would have required the trial court here to state in Branch’s obey-all-laws condition that the CUA defense was an affirmative defense not only to probation violations premised on the violation of federal laws involving the transportation, possession, or cultivation of marijuana but also to those premised on the violation of similar state laws. More importantly, however, it was impractical for the trial court to list all potential affirmative defenses to criminal conduct in the obey-all-laws condition because this would require the court to specify innumerable defenses to innumerable criminal acts that could result in a defendant violating his probation. Accordingly, we reject Branch’s contention that the court erred by its failure to modify his obey-all-laws condition in the manner he requests.
DISPOSITION
The judgment is affirmed.