Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM029844
HULL, J.Defendant Arthur Leonard Jenkins appeals from his conviction of possession of marijuana for sale. (Health & Saf. Code, § 11359; undesignated statutory references that follow are to the Health and Safety Code.) He contends the trial court abused its discretion by imposing a condition of probation requiring him to refrain from using marijuana.
We affirm the judgment.
Facts and Proceedings
We set forth the facts based on the probation report because defendant pleaded no contest. The probation report recounts the following:
On July 4, 2008, a Butte County sheriff’s deputy received a tip from a confidential informant that Casey Wilkins was illegally growing marijuana on his property. While en route on another assignment, the deputy passed by one of Wilkins’s properties located at 3972 Danville Circle near Concow, California. The deputy observed several marijuana plants growing in the yard as he drove by.
Several weeks later, the deputy returned and found approximately 86 marijuana plants and a 12-gauge shotgun on the property around the house on Danville Circle. Posted on the property were copies of seven recommendations for medical marijuana. The deputy did not contact anyone at the property because the area was still evacuated after a fire.
Further investigation revealed that the posted medical marijuana recommendations had been duplicated at other properties owned by Wilkins. The sheriff’s deputies secured a search warrant, which they served at the Danville Circle property. During the search, the deputies found 48 mature marijuana plants. The deputies also arrested defendant at the property.
On October 1, 2008, the Butte County District Attorney charged defendant with a felonious cultivation of marijuana (§ 11358) and felonious possession of marijuana for sale (§ 11359). A week later, defendant was released from jail on his own recognizance with the condition that he refrain from using marijuana.
On June 25, 2009, defendant pleaded no contest to possession of marijuana for sale with the understanding that the charge for cultivating marijuana would be dismissed pursuant to a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754). Accordingly, the trial court sentenced defendant to 120 days in jail with credit for 10 days of actual time served, placed him on three years’ probation, and imposed various fines and fees. The court also ordered him not to use marijuana.
Defendant timely filed a notice of appeal.
Discussion
I
Prohibition on Use of Marijuana as a Condition of Probation
Defendant contends the trial court erred in prohibiting him, as a condition of probation, from using medical marijuana. We reject the argument.
During the plea colloquy, the prosecutor informed the court that she offered defendant a deal involving no prison time if he pled guilty to both charges--cultivation and possession of marijuana for sale. Defendant rejected the offer because he was concerned that it would require him to stop smoking marijuana. Defense counsel elaborated that defendant smoked marijuana to keep his blood pressure down after his two heart attacks. Defendant’s attorney informed the court that defendant would try to obtain a letter from a cardiologist that recommended the use of marijuana. In the interim, the defense requested that the condition prohibiting marijuana use while defendant was on his own recognizance be suspended.
The prosecution countered that defendant had been subject to the no marijuana condition since his release from custody, and that the condition should remain in effect until sentencing. The prosecution further stated, “I’m looking forward to meeting a... cardiologist who thinks anyone should smoke anything after a heart attack.”
The court accepted defendant’s no contest plea and left the no marijuana condition in place pending sentencing. The court advised defendant that “documentary evidence is going to be important if you’re going to be talking the Court out of [sic] striking that condition.”
At sentencing, defendant failed to produce a recommendation for marijuana use by a cardiologist or any other doctor. Nonetheless, the defense again asked the court to strike the prohibition on defendant’s use of marijuana during his term of probation. The prosecutor argued against lifting the prohibition and noted that she would be willing to reconsider her position if defendant produced a recommendation from his cardiologist.
The court inquired of defendant about when he obtained his medical marijuana recommendation. Defendant was unable to remember the date and stated only that it was prior to his heart attacks.
After having defendant review the conditions of his probation, the court placed him on probation for a term of three years. As part of the terms of probation, defendant was prohibited from using marijuana. In imposing the no marijuana condition, the court noted that it had informed defendant about the importance of securing a recommendation prior to sentencing and that he had failed to produce such a recommendation. Thus, the court explained: “Now, what I have in front of me is a recommendation from the defendant that predates his alleged January heart attack. So, the Court does not consider that to be a current recommendation in light of his medical condition.”
Before concluding, the court admonished defendant: “To be clear, sir, you are not to use marijuana with or without a recommendation. If at some point... you’re able to convince the probation officer that the marijuana has some medicinal purpose that comports with your physical condition, then that is something that can be presented to the Court upon modification from the District Attorney’s office.”
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 an 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, 107 (Brooks), citing Lent, at p. 486.)
Although the Compassionate Use Act of 1996 (the Act) (codified at section 11362.5) allows for limited possession and use of marijuana upon the recommendation of a doctor, the Act does not prohibit a court from prohibiting marijuana use during a term of probation. (People v. Moret (2009) 180 Cal.App.4th 839, 853.) This is because “a probation condition can prohibit otherwise lawful conduct that is reasonably related to the defendant’s criminal offense.” (Brooks, supra, 182 Cal.App.4th at p. 1351.) Consequently, “a trial court has discretion to impose a no-marijuana-use probation condition on the holder of a medical marijuana card.” (Moret, at p. 853.)
In this case, the trial court did not abuse its discretion by prohibiting defendant from using medical marijuana with or without a doctor’s recommendation. Defendant’s offenses directly related to the cultivation and possession of marijuana. Thus, the challenged condition of probation directly related to the crimes for which he was convicted and to potential future criminality. (See Brooks, supra, 182 Cal.App.4th at pp. 1350-1351.)
Moreover, considerations of future criminality arising from use of marijuana during probation are justified by the probation report’s indications that defendant suffers from serious, long-term marijuana addiction. Defendant informed the probation department that he had been smoking “3/4 [of] a joint” since he was 14 years of age--a time period of approximately 34 years. This means that defendant was using marijuana long before the Act was passed by the California voters in 1996. (See Brooks, supra, 182 Cal.App.4th at pp. 1350-1351.)
We note that the record suggests that defendant may never have had a medical marijuana recommendation from a doctor. Whether he did or did not, he plainly had not obtained one since he suffered a heart attack and it was not unreasonable or an abuse of discretion for the court to require him to obtain a new recommendation given his changed medical condition. We note, too, that the court told defendant that, in the event he obtained a new recommendation from a physician, defendant could return to court and ask to be relieved of the probation condition here at issue.
The condition of probation that defendant refrain from using medical marijuana related directly to the offense for which defendant was convicted. Further, the condition constituted a reasonable measure to deter future criminality. Accordingly, the trial court did not abuse its discretion in prohibiting defendant from using marijuana during his term of probation.
II
Presentence Custody Credits
In his opening brief, defendant contends he was entitled to 10 days of presentence custody credit under the recent revision of Penal Code section 4019. (Stats 2009, 3d Ex. Sess., ch. 28, § 50, eff. Jan. 25, 2010).) After the opening brief was filed, the trial court issued an amended order that granted defendant a total of 20 days credit for time served--10 credits for actual days and 10 credits under Penal Code section 4019. In short, defendant has received the relief he sought.
The People argue that the recent revision of Penal Code section 4019 was not intended to retroactively provide presentence custody credits. We disagree.
The amendment of Penal Code section 4019 applies to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies “to acts committed before its passage provided the judgment convicting the defendant is not final”]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits].) Defendant is not excluded from the additional accrual of credit. (Pen. Code, § 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], § 2933 [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].) Defendant, having served 10 days of presentence custody, was properly credited by the trial court with 10 days of conduct credit.
Disposition
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., ROBIE, J.