Opinion
F061716 Super. Ct. No. F10900365
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. NATHAN ALAN LIRETTE, Defendant and Appellant.
Dale Dombkowski, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Cornell, Acting P.J., Gomes, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Fresno County. Don Penner, Judge.
Dale Dombkowski, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Appellant, Nathan Alan Lirette, pled no contest to dissuading a witness (Pen. Code, § 136.1, subd. (c)(1)) and misdemeanor inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)).
All further statutory references are to the Penal Code, unless otherwise indicated.
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On May 26, 2010, the court placed Lirette on three years' probation on condition that he serve a year in jail.
On appeal, Lirette contends the court abused its discretion when it denied his motion to modify his probation to allow him to use marijuana for medical purposes. We affirm.
FACTS
In January 2010, Lirette lived with the victim, with whom he had two children. In the early morning hours of January 8, 2010, Lirette returned home from a night of drinking with his friends and fell asleep on the couch. At 11:30 a.m. that day, after Lirette had moved to a bedroom, the victim confronted him about his drinking and they started to argue. Lirette then got out of bed, shoved her across the hallway into their daughter's room, and locked the victim inside with him. Lirette called the victim names and told her that if she ever called the police on him again, he would take their children and kill her. The victim asked Lirette to let her out so she could check on their children. Instead, Lirette got on top of her on the bed and pinned her down with her left arm behind her. The victim felt a pop in her shoulder and began experiencing excruciating pain. Lirette shoved his wallet in the victim's mouth and covered her nose with his hand, preventing the victim from breathing and causing her to feel light-headed. The victim managed to tell Lirette to get off of her and began kicking and pulling his hair until eventually he let her go.
When Lirette went to take a shower, the victim left the residence and called the police. She told the responding officers that although police had previously responded only twice to domestic violence incidents at her residence, Lirette had been abusive towards her on numerous occasions. She also told the officers that Lirette smoked marijuana "all the time" and that he was an alcoholic.
The assault resulted in the victim suffering fractures to her arm and thumb, cuts on her lower lip and under her tongue, a swollen upper lip, and bruising on both arms.
On January 26, 2010, the district attorney filed a complaint charging Lirette with inflicting corporal injury on a cohabitant (count 1), battery with serious bodily injury (count 2/§ 243, subd. (d)), false imprisonment (count 3/§ 236), and dissuading a witness (count 4). The complaint also alleged a great bodily injury enhancement (§ 12022.7, subd. (e)) in count 1.
On April 28, 2010, after count 1 was reduced to a misdemeanor, Lirette entered his plea to counts 1 and 4 in exchange for the dismissal of the remaining counts and enhancement.
Lirette's probation report indicates that during a probation department interview Lirette stated that he first began consuming alcohol and smoking marijuana at age 14. He acknowledged that alcohol consumption had been a problem for him in the past and that prior to his arrest he was drinking a six-pack of beer up to four times weekly. Lirette also stated that he first used cocaine at age 16, but only used a few times in the previous year, and that he had used methamphetamine less than 10 times. Lirette declined to discuss his use of LSD. Lirette also reported that he completed the Kings View Outpatient Program in 2001 and 2007 and completed 90 days in the CAP program in 2006.
Although Lirette stated he was in "great" physical condition, he reported using medical marijuana for anxiety and chronic pain, off and on, for the past six years. After receiving his cannabis card he began using a gram of marijuana daily.
The probation report also indicated that in 2002 Lirette was convicted of cultivation of marijuana and in 2006 of driving with a blood alcohol content of .08 percent or greater.
On May 26, 2010, the court placed Lirette on three years' probation.
On November 3, 2010, at a domestic violence review hearing, Lirette requested that the court modify his probation conditions to allow him to use marijuana for medical purposes.
On November 17, 2010, at a hearing on Lirette's request, Dr. Terrill Brown testified that he provided Lirette with a recommendation to use marijuana for medical purposes in May 2009, and a second recommendation earlier that month. According to Dr. Brown, when he first met Lirette in May 2009, he conducted a thorough review of Lirette's medical records and assessed his response to previous medications. Dr. Brown determined that Lirette suffered from a generalized anxiety disorder with some social anxiety issues. Lirette also suffered from chronic neck and back pain and, since he had had a surgical repair in his rectal area, Lirette would not want to use medications that caused constipation, including any opiate and certain diuretics. Lirette also told Dr. Brown that he did not like the way the regular medicines made him feel. In Dr. Brown's opinion, even though Lirette was on felony probation he should be allowed to use medical marijuana because his criminal behavior in the past had not directly related to a substance abuse problem.
On November 2, 2010, Dr. Brown prescribed a relatively small amount of Norco, an opiate, for management of chronic pain and Xanax, a member of the benzodiazepine family, for anxiety. He prescribed these medications as an alternative to marijuana because Lirette told him that he was not able to use marijuana because he was on felony probation. However, if he had been able to prescribe marijuana, Dr. Brown most likely would not have prescribed either drug.
During questioning by the court, Dr. Brown testified that in evaluating Lirette for a medical marijuana recommendation he took a history from Lirette of his use of controlled substances. Lirette admitted consuming between 10 and 30 drinks per week, which concerned Dr. Brown. Lirette, however, did not tell Dr. Brown that he had driven under the influence of alcohol, crashed into a residence, and had been prosecuted for it. Nor did Lirette tell Dr. Brown that he had used cocaine, LSD, or methamphetamine. Lirette did, however, tell Dr. Brown that he had experimented with illegal drugs as a teenager. Dr. Brown was also aware that Lirette had been in two substance abuse programs.
When asked if the knowledge of drug use would have affected his decision to recommend medical marijuana, Dr. Brown explained that in his experience marijuana had prevented many of his patients from getting into trouble with other drugs. Dr. Brown would still have recommended that Lirette use medical marijuana even if he had known the above circumstances.
Dr. Brown also testified that Lirette told him that during a previous grant of probation he was allowed to use marijuana for medical purposes. After Dr. Brown was excused, discussions between the court and defense counsel clarified that on May 24, 2004, after the court terminated Lirette's Proposition 36 probation because of his use of marijuana, it placed him on regular probation and allowed him to use marijuana for medical purposes. On May 10, 2006, when the court sentenced Lirette on his driving under the influence of alcohol conviction, the court revoked Lirette's authorization to use marijuana. When the court asked defense counsel why Lirette told Dr. Brown he had been allowed to use marijuana for medical purposes when he was on probation, defense counsel conceded that Lirette had been referring to the two-year period noted above.
After hearing argument from counsel the court stated:
"... I'll make the record as clear as I can that in the court's opinion, drugs are drugs, I don't care if it's alcohol, marijuana or some other drug, the defendant in this case has an extensive history with the use of various drugs. This incident for which he's on the crime for which he's on probation was triggered in part by an event in his life and the life of the victim wherein the victim started the whole confrontation because of the defendant's partying, as she said, as the probation department report sets forth that he had been out partying all night and that event eventually led to the crime for which the defendant is on probation.
"I also make a finding that I don't believe that the defendant revealed the extent [of] his use of drugs, recreational or otherwise to Dr. Brown at the time that Dr. Brown made his decision and I also find very troubling the defendant's characterization of what I consider to be misleading information that he could use medical marijuana while he was on probation in the last probation cycle. That is the kind of minimizing information that the court gets very concerned about and I don't know why, it makes no sense to me to tell the doctor that I can use medical marijuana the last time that I was on probation and seemingly I guess in the back of his mind have the thought that well, I did for the first couple of years and then the Judge changed that because oh, by the way, I was driving under the influence, ran into an individual's home and my probation was revoked as a result of that. That information not being revealed to the doctor in the court's mind, maybe not in the doctor's mind but in the court's mind evidences a minimization of the problem that the defendant has with respect to the use of any drug, whether it's alcohol, marijuana or any other drug. I believe that he has struggled with this addiction as evidenced by the attempts to address his addiction in rehab programs and I commend him for that. I see a parade of people coming through this courtroom every day who struggle with various types of drugs. Some don't make any effort at all to try to deal with it and I commend you for that, for those attempts to deal with this issue but the abuse of the drugs the abuse of drugs which he showed in [2005] when he drove under the influence and created an incredible danger to the community by crashing his vehicle into another individual's home, I think that directly relates -- that potential directly relates to the criteria that the court is required to consider on conditions of probation. [¶] ... [¶]
"All right I believe what the court is required to do, the court can set conditions of probation and I'm quoting here from [In re T.C.] which is a
2009 decision at 173 Cal.App.4th 837, the court there citing other authority, a condition of probation which requires or forbids conduct which is not in itself criminal and is for that reason most vulnerable to challenge is nonetheless valid if the conduct required or forbidden either A, has a relationship to the crime of which the offender was convicted or B, is reasonably related to future criminality.
"It is the opinion of the court that both prongs, both A and B are present in this particular case in that partying was what led to the unfortunate confrontation between the defendant and the victim in this case which [led] to a felony conviction for the defendant. I also believe that the use or potential use of any drug by the defendant is reasonably related to a potential for future criminality because he's demonstrated in the past that he can use a drug that is otherwise legal, alcohol, and use it in an illegal manner and create a risk of harm to others."
DISCUSSION
Lirette contends that his use of marijuana did not have any relationship to the crimes of which he was convicted and was not related to a potential for future criminality. Thus, according to Lirette, the court abused its discretion when it denied his request to modify his probation to allow him to use marijuana for medical purposes. We disagree.
"As a result of the enactment of [Health & Safety Code] section 11362.5(d), the possession and cultivation of marijuana is no more criminal—so long as its conditions are satisfied—than the possession and acquisition of any prescription drug with a physician's prescription." (People v. Mower (2002) 28 Cal.4th 457, 482.) Further, Health and Safety Code section 11362.795 allows a defendant who is eligible to use marijuana pursuant to Health and Safety Code section 11362.5 to request clarification from the court whether he or she is allowed to use medical marijuana while he or she is on probation. However, a trial court has the discretion to impose probation conditions that prohibit even legal activity. (People v. Lent (1975) 15 Cal.3d 481, 486.)
"Section 1203.1 gives trial courts broad discretion to impose conditions of probation to foster rehabilitation of the defendant, protect the public and the victim, and ensure that justice is done. [Citations.] '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...." [Citation.] 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.' [Citation.] As with any exercise of discretion, the court violates this standard when it imposes a condition of probation that is arbitrary, capricious or exceeds the bounds of reason under the circumstances. [Citation.]" (People v. Jungers (2005) 127 Cal.App.4th 698, 702.)
Here, Lirette had a long history of substance abuse involving several drugs including alcohol and marijuana. In 2002, prior to Lirette's use of marijuana for medical purposes he was convicted of cultivating marijuana. In 2006 he was convicted of driving with a blood alcohol content of .08 percent or greater after he drove a car into a residence while inebriated. Further, the assault on the victim occurred after a night of drinking with his friends and Lirette did not dispute the victim's statement in his probation report that he used marijuana "all the time." Given the extent of Lirette's marijuana use and that alcohol lessens self-control (People v. Beal (1997) 60 Cal.App.4th 84, 87), the court could reasonably conclude that Lirette also used marijuana during the drinking binge that ultimately led to the assault of the victim. Thus, we conclude that the record supports the court's conclusion that Lirette's use of marijuana was reasonably related to the crimes of which Lirette was convicted.
Moreover, as noted by the court, Lirette's driving under the influence of alcohol conviction demonstrated that Lirette was capable of using a legal substance in an illegal manner. Further, in view of Lirette's history of substance abuse and his penchant for using marijuana, the court could reasonably conclude that allowing Lirette to use marijuana for medical reasons would provide too great a temptation for him to use it in a similar illegal manner. The court could also reasonably find that prohibiting Lirette's use of marijuana for medical purposes would eliminate the temptation to cultivate marijuana in an amount in excess of what he allegedly needed for those purposes. (Cf. People v. Brooks (2010) 182 Cal.App.4th 1348, 1353.) Accordingly, we conclude that the record supports the court's finding that the condition prohibiting Lirette from using marijuana was related to future criminality.
Lirette contends that the evidence does not support the court's finding that marijuana use was involved in the crimes he was convicted of because this finding was based on "an extrapolation of a misrecollection of the evidence." According to Lirette, in concluding that his "partying" ultimately led to the confrontation with the victim, the court misrecollected that the victim told police Lirette had been "out drinking with his friends all night" prior to the assault and it "extrapolate[d] marijuana use as part of the partying." Lirette's semantic argument is unpersuasive. The court used the word "partying" to characterize Lirette's conduct in staying out all night with his friends drinking and, as noted above, the court could reasonably infer from the record that Lirette's "partying" included using marijuana.
Lirette also contends that the record does not support the court's conclusion that his use of marijuana related to future criminality because the record showed that he had used medical marijuana for years without it causing him any problems; Norco was physically addictive while marijuana was not; and medical marijuana prevents some patients who abuse drugs from getting in trouble with other medications.
However, Lirette's claim that his use of medical marijuana had never caused him any problems ignores the circumstances noted above from which the court could reasonably conclude that he used marijuana during the drinking binge that ultimately resulted in the assault on the victim. It also ignores Lirette's use of marijuana for non-medical purposes which resulted in his 2002 felony conviction for cultivating marijuana. Further, that marijuana may not be physically addictive or that it keeps some patients from abusing their medications does not eliminate the possibility that it, too, can be abused or the court's concern that given his history of substance abuse, Lirette might abuse it. Accordingly, we reject Lirette's contention that the court abused its discretion when it denied his request to be allowed to use medical marijuana while he was on probation.
DISPOSITION
The judgment is affirmed.