Opinion
C085355
02-26-2018
THE PEOPLE, Plaintiff and Respondent, v. TYLER JOHN HORISK, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CF04468)
Defendant Tyler John Horisk pleaded no contest to driving under the influence and causing bodily injury to another. (Veh. Code, § 23153, subd. (b).) As part of a grant of probation, he was prohibited from using marijuana—including under a Proposition 215 recommendation—as well as entering a business or location where marijuana is the primary item for sale or use. Defendant appeals contending those conditions are invalid under the Lent test. We agree and will direct the trial court to strike or modify the conditions.
Proposition 215 was adopted by California voters in 1996 and is known as the Compassionate Use Act of 1996. (Health & Saf. Code, § 11362.5.)
People v. Lent (1975) 15 Cal.3d 481 (Lent).
FACTUAL AND PROCEDURAL BACKGROUND
The parties stipulated to a factual basis from the probation report. The facts are drawn from that report.
The victim and defendant, the driver, were riding an all-terrain vehicle in April 2016. At one point, defendant accelerated to a high speed, leading to a collision. His blood was later tested at 0.16 percent blood-alcohol content. The victim suffered fractures to her right eye socket, nose, and left wrist.
Defendant pleaded no contest to driving under the influence and causing bodily injury to another. (Veh. Code, § 23153, subd. (b)—count 2.) The remaining counts were dismissed with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754.
At sentencing, defense counsel objected to proposed probation conditions Nos. 4 and 67. Condition No. 4 prohibited defendant from using marijuana, including under a Proposition 215 recommendation. Condition No. 67 prohibited him from entering a business or location where marijuana is the primary item for sale or use and from ingesting any item containing marijuana. Defense counsel argued as to both conditions: "It doesn't really have a relationship to this crime . . . . [¶] I think it's an unreasonable condition given [it has] really nothing to do with this case. This is an alcohol-related incident."
Condition No. 4 provides: "Totally refrain from the use, control, or possession of any controlled substance unless with a current prescription from a licensed physician. Do not possess any narcotic paraphernalia nor knowingly associate with anyone who has ever been convicted of any criminal offense involving these substances, nor anyone using or selling controlled substances, without permission of the probation officer. . . . No Prop. 215 marijuana recommendations allowed."
The prosecution responded that defendant clearly "exhibited behavior where he cannot consume substances in a responsible manner."
The trial court granted probation and ordered defendant to serve 60 days in custody. It also imposed conditions Nos. 4 and 67, noting the conditions "would be appropriate to allow [defendant] to successfully complete probation."
Before this case, defendant had no criminal record.
DISCUSSION
On appeal defendant challenges the probation conditions related to medical marijuana, arguing the conditions are invalid under the Lent test. We agree.
A trial court has broad discretion to impose reasonable probation conditions to promote the probationer's rehabilitation and ensure the public's safety. (Pen. Code, § 1203.1, subd. (j); see People v. Olguin (2008) 45 Cal.4th 375, 379.) Conditions are reviewed for abuse of discretion. (Olguin, at p. 379.) Generally, a condition is valid unless all three prongs of the Lent test are satisfied: (1) the condition has no relationship to the crime committed; (2) the condition relates to conduct that is not itself criminal; and (3) the condition requires or forbids conduct "not reasonably related to future criminality . . . ." (Ibid., citing Lent, supra, 15 Cal.3d at p. 486.)
Applying the Lent test, here, the probation conditions are invalid as they pertain to marijuana prescribed for medical purposes under the Compassionate Use Act, Proposition 215. The conditions have no nexus with defendant's crime. Defendant's crime involved alcohol, not marijuana. Equating alcohol with medical marijuana simply because both substances can intoxicate paints with too broad a brush—the same could be said of many prescription medications.
The conduct itself is not criminal. Though marijuana is illegal under federal law, using medical marijuana as authorized by the Compassionate Use Act is not conduct that is itself criminal for purposes of the Lent test. (People v. Leal (2012) 210 Cal.App.4th 829, 840-841 (Leal).)
Finally, the conditions do not forbid conduct reasonably related to preventing future criminality. That recreational marijuana use could reasonably relate to future criminality should not preclude the use of marijuana for medical purposes where nothing in the record suggests a prescription would be abused. (Cf. People v. Hughes (2012) 202 Cal.App.4th 1473, 1481 [upholding condition prohibiting medical marijuana where defendant was convicted of possessing marijuana for sale, where the defendant sought to justify his possession using the Compassionate Use Act]; Leal, supra, 210 Cal.App.4th at pp. 841-842 [upholding medical marijuana condition where the defendant was convicted of possessing marijuana for sale and sought to hide behind his medical authorization]; People v. Brooks (2010) 182 Cal.App.4th 1348, 1353 [upholding condition prohibiting medical marijuana where the defendant sought to hide his illegal conduct behind the Compassionate Use Act].) To conclude otherwise could, for example, condone a condition barring all physicians from prescribing pain medication solely because such prescriptions are capable of being abused.
In sum, because the record fails to indicate a nexus between medical marijuana use and defendant's crime or possible future criminality, the two challenged conditions are invalid. We will direct the trial court to strike the portion of probation condition No. 4 proscribing Proposition 215 marijuana use. We will also direct the trial court to strike or modify probation condition No. 67—prohibiting defendant from entering a business or location where marijuana is the primary item for sale or use, or from ingesting any item containing marijuana—so as not to interfere with the lawful purchases and use of medical marijuana as proscribed pursuant to Proposition 215.
DISPOSITION
The trial court is directed to issue an amended probation order, striking the portion of condition No. 4 proscribing Proposition 215 marijuana recommendations. The trial court is further directed to strike or modify condition No. 67 so as not to interfere with the lawful purchase of medical marijuana pursuant to Proposition 215. As modified, defendant's order of probation in affirmed.
BUTZ, J. We concur: BLEASE, Acting P. J. HULL, J.