Opinion
H036009
12-14-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH AZIZ ELANSARI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. Nos. CC820483, CC821205)
Defendant Joseph Aziz Elansari appeals from an order denying his motion to possess medical marijuana while on probation. He contends that the trial court abused its discretion. We disagree and affirm the order.
BACKGROUND
Pursuant to a negotiated disposition, defendant pleaded no contest to possessing marijuana for sale and acquiring $25,000 from a controlled substance. The trial court placed him on probation with a condition against possessing illegal drugs. At a later hearing, defendant produced a valid medical marijuana card and the trial court modified the probation conditions to permit defendant to possess medical marijuana. Defendant violated probation by driving on an expired driver's license and leaving the state without permission. The probation officer's petition to revoke probation also noted that officers had found a half pound of marijuana, a digital scale, and $400 in defendant's possession. Defendant admitted violating probation, and the trial court--via a judge different from the judge who had originally placed defendant on probation--revoked it. In a negotiated disposition, the trial court reinstated probation on condition that defendant serve five months in jail. It also imposed a temporary no-drug-or-alcohol condition that included marijuana and set a hearing for defendant's motion to possess medical marijuana. At that hearing, the People argued that defendant's underlying offense involved significant quantities of marijuana and cash. They also urged that "medical marijuana cards can be obtained by anybody in this room for about $50. There's virtually no requirement, except finding someone willing to write one. It's interesting to note . . . when he was picked up, he doesn't know the alleged marijuana doctor when asked by the police." They noted that defendant had used marijuana illegally before obtaining the marijuana card. The trial court then asked defendant why he was taking medical marijuana, who was his doctor, when was the last time he saw the doctor, and whether the doctor had written any reports. Defendant replied that the prescription was from a family doctor for stress due to a 2002 car accident. The trial court remarked that defendant worked as a painter and looked healthy, well-muscled, and energetic: "So I'm curious as to when you last saw the doctor and what notes were written by the doctor memorializing any objective findings the doctor saw to justify a medical marijuana card." Defendant argued that "there are no changed circumstances for a modification. The ability to have a modification, you have to have some factual basis, and there is none here to justify the modification that [the original sentencing judge] granted [defendant]. Now, without changed circumstances, all the Court is doing is revisiting the same facts, the same issues that that trial judge reviewed in allowing [defendant] to use marijuana." The trial court noted the following: "The underlying offense has to do with, in 2008, when he was arrested for possession of 2 pounds of marijuana, in possession of $14,620 in cash, in a brown paper bag, an additional $3925 in the left, rear floorboard, 9 grams of marijuana in his backpack, and then, a day later, a search warrant revealed items of drug sales, $25,000 worth of cash. And I have yet to see documentation of a medical reason why he needs medical marijuana." It denied defendant's motion "without prejudice."
For one having a medical marijuana card, the possession of a half pound of marijuana is lawful under the Compassionate Use Act (CUA). (Health & Saf. Code, § 11362.5 et seq.)
The probation officer noted in the petition to revoke that defendant had "admitted to this officer he used marijuana prior to obtaining a medical marijuana card."
DISCUSSION
Generally, the trial court has "substantial discretion in deciding the appropriate conditions of probation in any individual case." (People v. Moret (2009) 180 Cal.App.4th 839, 845 (Moret).)The court may impose any "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).)
"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. Lent (1975) 15 Cal.3d 481, 486 (Lent), abrogated by Proposition 8 on another ground as recognized in People v. Wheeler (1992) 4 Cal.4th 284, 290-292.) " 'This test is conjunctive--all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.' " (Moret, supra, 180 Cal.App.4th at pp. 845-846, quoting People v. Olguin (2008) 45 Cal.4th 375, 379-380.)
Thus, "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).) Courts have approved probation conditions banning noncriminal behavior having no relationship to the defendant's crime as varied as requiring a probationer to inform the probation officer of the existence of pets (People v. Olguin, supra, 45 Cal.4th at pp. 379-380), and possessing an item of known gang clothing even though the defendant's crime was unrelated to gang activity. (People v. Lopez (1998) 66 Cal.App.4th 615, 624.)
Two cases have addressed whether a trial court has discretion to forbid the use of medical marijuana under the CUA as a condition of probation. Both have concluded that it does. (Brooks, supra, 182 Cal.App.4th at p. 1352; Moret, supra, 180 Cal.App.4th at pp. 843-844.)
In Moret, the defendant pleaded no contest to possession of a concealed weapon. (Moret, supra, 180 Cal.App.4th at p. 842.) During his probation interview, the defendant told the probation officer that he used marijuana to treat his migraine headaches and had recently obtained a medical marijuana card. (Id. at pp. 843, 847.) The trial court nevertheless imposed a "no marijuana" probation condition, noting the defendant's lack of credibility and apparent attempt to " 'game the system' " in regards to medical marijuana. (Id. at pp. 847-848.) It offered to allow the defendant to use Marinol, an offer the defendant declined. It also explained that the condition was an attempt to prevent future criminality: " 'He's a young man. Obviously, he's got potential, but he keeps smoking dope and carrying firearms.' " (Id. at p. 847.) " '[H]e's got real problems going on in his life, and smoking dope isn't helping him. That's the bottom line.' " (Ibid.)
Marinol is a "prescription drug containing a synthetic marijuana compound." (People v. Trippet (1997) 56 Cal.App.4th 1532, 1539.)
The Court of Appeal affirmed. It first held that the trial court had discretion, despite the legality of using marijuana if prescribed under the CUA, to forbid marijuana use as a condition of probation. It noted that Health and Safety Code section 11362.795, subdivision (a), "clearly permits the trial court to impose such a condition," and held the statute was constitutional. (Moret, supra, 180 Cal.App.4th at pp. 853, 855, fn. 15.) The appellate court also held that the trial court had not abused its discretion in imposing the marijuana ban given the doubts about the defendant's credibility, the lack of evidence supporting his claimed medical condition and need for marijuana to treat it, and the court's assessment that abstaining from marijuana while on probation would aid in preventing future criminality. (Id. at pp. 848-850.)
Health and Safety Code section 11362.795, subdivision (a), provides in part:
"(1) Any 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 . . . .
"(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." These provisions anticipate that a court may grant or deny a petition for the use of medical marijuana during the probationary period.
In Brooks, supra, 182 Cal.App.4th 1348, the defendant pleaded guilty to possession of methamphetamine. The trial court placed him on probation, with one of the probation conditions being that he not possess illegal drugs "unless on recommendation of a physician pursuant to [the CUA]." (Id. at p. 1350.) While on probation, the defendant was arrested for possession of two pounds of marijuana for sale. Despite the testimony of a physician that he had prescribed the marijuana for Brooks' "asthma, irritable bowel syndrome and shoulder pain" and two pounds was "a reasonable amount for personal use" if ingested, the trial court found the defendant in violation of his probation. (Ibid.)The trial court reinstated probation, but with a modified drug condition prohibiting "any use or possession of controlled substances" regardless of whether prescribed under the CUA. (Ibid.)
The Court of Appeal affirmed. Citing Lent, it agreed that the trial court had discretion to impose the no-controlled substances condition, noting "it is well settled that the trial court has the discretion to impose probation conditions that prohibit even legal activity. [Citation.] Brooks presents no compelling reason for making an exception for medical marijuana." (Brooks, supra, 182 Cal.App.4th at p. 1352, citing Lent, supra, 15 Cal.3d at p. 486.) It acknowledged the holding of People v. Kelly (2010) 47 Cal.4th 1008 (Health & Saf. Code, § 11362.77, setting forth weight and amount limits on the possession and cultivation of medical marijuana, impermissibly amended the CUA to the extent it burdened a CUA defense to a cultivation or possession charge). "There is nothing in Kelly, however that would invalidate the probation provisions of [Health and Safety Code] section 11362.795, subdivision (a)." (Brooks, supra, at p. 1352.) The Court of Appeal also concluded that the trial court had not abused its discretion in prohibiting the defendant from using medical marijuana while on probation. "Brooks tried to hide his illegal conduct behind the CUA . . . [T]he probation condition relates to future criminality. The condition removes any temptation to try to hide criminal possession of marijuana behind the CUA again." (Id. at p. 1353.)
Defendant acknowledges the holdings of Moret and Brooks, but asks this Court to follow the dissent in Moret. We decline to part company with Moret and Brooks. The trial court was well within its ample discretion to conclude--and we infer it implicitly did conclude--that there was both a nexus to defendant's prior possession-for-sales conviction and relation to his future criminality, because barring his possession or use in this way would discourage him from the temptation of hiding illegal sales by claiming that any possession was pursuant to the CUA. Moreover, the trial court told defendant that its decision was without prejudice. This contemplates that the trial court would consider a modification of the medical marijuana prohibition if defendant returned with a persuasive presentation by a physician rather than the bare medical marijuana card and defendant's attestation that he needed marijuana for his stress.
Defendant argues that his medical marijuana card is prima facie evidence of his eligibility to use medical marijuana and it was incumbent on the People to "bring in the doctor" to refute his right to use medical marijuana on probation. We disagree.
If the demonstration of eligibility to use marijuana under the CUA automatically entitled a probationer to judicial confirmation that he/she can use marijuana while on probation (Health & Saf. Code, § 11362.795, subd. (a)(1)) or a modification (id. subd. (a)(3)) of his/her probation conditions to permit marijuana usage, the statute would simply direct the trial court to so confirm or modify once eligibility under the CUA is shown. Because the statute does not so direct, this indicates that the trial court still retains discretion to deny confirmation and modification requests even when the movant's eligibility under the CUA has been established. (See Moret, supra, 180 Cal.App.4th at p. 843 [marijuana card]; Brooks, supra, 182 Cal.App.4th at p. 1350 [physician's testimony].)
Defendant next contends that the trial court erred because it modified his terms of probation without a change in circumstances. Not so.
In the event of a violation of probation, "the court may modify, revoke, or terminate the probation of the probationer." (Pen. Code, § 1203.2, subd. (b); see also id. § 1203.1, subd. (j).) "[T]he court has jurisdiction, upon revocation of probation, to place the defendant upon a new probation, with new conditions." (In re Bine (1957) 47 Cal.2d 814, 817.) "Probation is an act of clemency and may be withdrawn if the privilege is abused. . . . In such case the court is specifically authorized to modify and change any and all of the terms and conditions of probation." (Ibid.) However, a change in circumstances is required before a court has jurisdiction to extend or otherwise modify probation, and an order modifying the terms of probation based upon the same facts as the original order granting probation is in excess of jurisdiction of the court, for the reason that there is no factual basis for it. (People v. Cookson (1991) 54 Cal.3d 1091, 1095; In re Clark (1959) 51 Cal.2d 838, 840; In re Bine, supra, at p. 818.) A change in circumstance equates to a "fact" " 'not available at the time of the original order.' " (People v. Cookson, supra, at p. 1095.)
Here, circumstances changed from the time of the original order: defendant violated the terms of his probation and the trial court had revoked his probation. Thus, the trial court was entitled to place defendant upon a new probation with new conditions. Defendant claims that the trial court was not entitled to alter his prior medical marijuana condition because there was no nexus between the acts constituting his probation violation and his use of medical marijuana. But defendant cites no authority for this proposition.
Defendant finally complains that the trial court's order is reversible because it was based on the trial court's antipathy toward the CUA. He cites the trial court's remarks that "I think medical marijuana is a joke" and "Prescriptions don't mean anything. It's just something somebody writes." Defendant is mistaken.
Though the trial court's opinion may be clear from the record, the record is clear that the opinion did not ground the trial court's order. The trial court remarked after the "joke" comment that the law prevailed over its opinion: "But that's my opinion. That's not the law." And its comment about the prescriptions were in the context of trying to coax defendant into substantiating his case with more than his medical marijuana card: "So I'm curious as to when you last saw the doctor and what notes were written by the doctor memorializing any objective findings the doctor saw to justify a medical marijuana card." The trial court here was rightly inquiring whether defendant was attempting to " 'game the system' " in regards to medical marijuana. (Moret, supra, 180 Cal.App.4th at pp. 847-848.) Moreover, as previously mentioned, the trial court indicated that it was receptive to defendant's argument if defendant made a stronger showing of his reasons for requiring medical marijuana.
DISPOSITION
The order denying defendant's motion to possess medical marijuana while on probation is affirmed.
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Premo, J.
WE CONCUR:
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Rushing, P.J.
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Elia, J.