Opinion
H042969
01-09-2017
THE PEOPLE, Plaintiff and Respondent, v. THOMAS GARCIA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS150403)
Defendant Thomas Garcia challenges the trial court's order denying his request to modify his probation to permit him to use medical marijuana pursuant to a physician's recommendation. He contends that the court's order violated his constitutional right to privacy and was unreasonable. We affirm the order.
I. Background
Defendant, who had been drinking beer, hit the victim in the back of the head with a horseshoe. When the victim responded by grappling with defendant in an effort to protect himself, defendant struck the victim several more times in the face with two horseshoes. Bystanders pulled defendant off of the victim, and defendant fled the scene in his vehicle. The victim was bleeding profusely from wounds to his head, and he required emergency medical treatment at a hospital. Defendant was apprehended and told the police that he attacked the victim because he believed that the victim had robbed him several months earlier.
Defendant was charged by amended information with assault with a deadly weapon (Pen. Code § 245, subd. (a)(1)), and it was further alleged that he had personally inflicted great bodily injury (§ 12022.7, subd. (a)) in the commission of the assault and that the assault was a serious felony because he had personally used a dangerous or deadly weapon (§ 969f, subd. (a)) in its commission. He entered into a plea agreement under which he pleaded no contest to the assault count and admitted the serious felony allegation in exchange for probation and dismissal of the great bodily injury allegation.
Subsequent statutory references are to the Penal Code unless otherwise specified.
Defendant admitted to the probation officer that he has anger issues and a drinking problem. He consumes 12 or more beers a day. He was on probation when he committed the assault. Defendant, who was 56 years old at the time of the assault, had been drinking and using marijuana since he was 14 years old. The probation officer told defendant that he would not be able to use marijuana while on probation.
Defendant's adult criminal history extends back more than three decades. He was convicted of vandalism (§ 594) in 1983, 1991, 1993, and 2005 and of misdemeanor battery (§ 242) in 1986, 1990, 1993, 2005, and 2011. In 1988, he was convicted of cultivating marijuana (Health & Saf. Code, § 11358). In 1993, he was convicted of public fighting (§ 415, subd. (1)) and vehicle tampering (Veh. Code, § 10852), and in 1995 he was convicted of being a felon in possession of a firearm (former § 12021, subd. (a)(1)). He was convicted in 1996 of possessing controlled substance paraphernalia (Health & Saf. Code, § 11364). In 1997, he was convicted of spousal battery (§ 243, subd. (e)) and infliction of corporal injury on a spouse (§ 273.5). He was convicted of theft (§ 484) in 1998 and of dissuading a witness (§ 136.1) in 2011.
On June 26, 2015, the court suspended imposition of sentence and placed defendant on probation with numerous conditions. One condition was that he "not knowingly use or possess alcohol, intoxicants or other controlled substances without the prescription of a physician." Defendant did not object to this condition on any grounds. In August 2015, defendant filed a request asking the court to modify his probation to permit him to use medical marijuana pursuant to his medicinal marijuana card.
At the October 16, 2015 hearing on defendant's request for modification, defendant presented testimony by Dr. Grant Weiss. Weiss was not defendant's "primary treating physician." Weiss worked for "Compassionate Health Options" (CHO) "evaluat[ing] whether [patients] have a medical condition that may be helped by medical marijuana." He recommended medical marijuana for at least 98 percent of the 6,000 patients he evaluated each year.
Defendant had first come to CHO in 2011. He reported that he suffered from chronic low back pain arising from a 2003 injury, acute situational anxiety, and depression, and CHO obtained medical records that verified these claims. Weiss had not evaluated defendant in 2011; his colleague had done so. Weiss had seen defendant just once, on March 6, 2015, when defendant came in for his "yearly renewal" of his medical marijuana card. Defendant's primary care physician was treating defendant's chronic back pain with pain medications. Defendant was smoking marijuana. Defendant told Weiss that he drank just one beer a day.
Weiss testified that defendant "would be medically served by using medical marijuana." His opinion was based on defendant's report that his use of marijuana lessened his pain, improved his sleep and depression, and reduced his reliance on the opioids prescribed by his primary care physician.
The court rejected defendant's request for modification. It acknowledged that medical marijuana "may in some cases be the only thing that gives people relief from particular situations." However, the court noted that Weiss had not testified that marijuana was "medically necessary" for defendant. It did not preclude a further request by defendant. "I'm not saying that if there was some more defined methodology of the use of marijuana for this individual I might be persuaded, but with the evidence that has been presented, the kind of broad brushed general it felt good for Mr. Garcia so I recommended it again for him, which was in some respects generally what Doctor Weiss said, I don't find that it is something that's medically necessary for Mr. Garcia to use. I find that he has access to significant other medical resources that were brought out in this hearing to address the issue; that he has used those other resources to address the issue . . . ." On November 10, 2015, defendant filed a notice of appeal from the court's order denying his modification request.
II. Discussion
"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 and an entry stating those reasons shall be made in the minutes of the court. [¶] (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. [¶] (4) The court's consideration of the modification request authorized by this subdivision shall comply with the requirements of this section." (Health & Saf. Code, § 11362.795, subd. (a).)
A. Timeliness, Appealability, and Forfeiture
The Attorney General contends that defendant's appeal is untimely, that the order denying his modification request was not appealable, and that defendant forfeited his claims by failing to raise them below.
First, we agree with the Attorney General that defendant's appeal is not a timely challenge to the imposition of the probation condition. However, defendant does not purport to be challenging the probation order. He challenges only the court's denial of his modification request. His appeal from that order is timely.
Second, we disagree with the Attorney General's claim that the court's order denying defendant's modification request was not an appealable order.
A defendant may appeal "[f]rom any order made after judgment, affecting the substantial rights of a party." (§ 1237, subd. (b).) The Attorney General relies on People v. Djekich (1991) 229 Cal.App.3d 1213 (Djekich). In Djekich, the defendant was placed on probation with a condition that he pay a fine of $1,000 per count for a total of $10,000. He subsequently moved to modify his probation on the ground that the multiple fines violated section 654. The court denied his motion, and he appealed from the denial. (Djekich, at p. 1218.) The Court of Appeal concluded that he could not appeal from the denial because he had not appealed from the order of probation. "To hold otherwise would condone extending the jurisdictional time limit for filing appeals through bootstrapping." (Id. at p. 1219.)
In this case, unlike in Djekich, defendant could not have raised his contentions regarding his ability to use medical marijuana in an appeal from the probation order because the probation order preceded his utilization of the mechanism created by the Legislature for seeking approval of medical marijuana use during probation. (Cf. People v. Howerton (1953) 40 Cal.2d 217, 220 [substantial rights not affected where issue raised in appeal from post-judgment order could have been reviewed in appeal from judgment].) Health and Safety Code section 11362.795 permits a probationer who is eligible to use medical marijuana to file a request for modification of a probation order to permit use of medical marijuana during the probationary period. That statute requires a statement of reasons for the court's ruling on such a request. Defendant's challenge to the court's decision on his request does not duplicate a challenge that he failed to make in a timely appeal from the probation order. Since the statute provides a mechanism for adjudicating such requests that mandates a statement of reasons, we believe that the Legislature intended for such decisions to be reviewable in an appeal from the decision on such a request.
Third, while we agree with the Attorney General that defendant forfeited his appellate contentions by failing to make them below, we will address his contentions on the merits to forestall a claim of ineffective assistance of counsel.
Defendant contends on appeal that the trial court's denial of his modification request was a violation of his constitutional right to privacy and was unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent). A challenge to a probation condition other than a facial constitutional challenge must be raised in the trial court in order to preserve that challenge for appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 881-882, 886-887 (Sheena K.).) Defendant does not claim that his constitutional privacy challenge is a facial constitutional challenge. At no point below did defendant make any constitutional arguments or assert that prohibiting him from using marijuana while on probation would be unreasonable under Lent. Instead, he asserted that the only issue before the trial court on his modification request was "whether there's sufficient evidence that . . . has established a valid medical basis for Mr. Garcia to have access to and use marijuana while he is on probation."
Since defendant's trial counsel's failure to preserve these issues for appeal would be deficient if these issues have merit, we proceed to the merits.
B. Lent Challenge
"[T]he only reasonable interpretation of section 11362.795, subdivision (a) is that it authorizes a trial court to impose a condition of probation that prohibits a defendant from the use of medical marijuana." (People v. Hughes (2012) 202 Cal.App.4th 1473, 1480.) "Trial courts have broad discretion to impose such reasonable probation conditions 'as it may determine are fitting and proper to the end that justice may be done . . . and generally and specifically for the reformation and rehabilitation of the probationer . . . .' " (People v. Chardon (1999) 77 Cal.App.4th 205, 217; § 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 . . . .' [Citation.]" (Lent, supra, 15 Cal.3d at p. 486.)
The sole issue that arises from defendant's Lent challenge is whether his use of medical marijuana is reasonably related to his future criminality. We review the trial court's decision for abuse of discretion and will reverse only "when its determination is arbitrary or capricious or ' " 'exceeds the bounds of reason, all of the circumstances being considered.' " [Citations.]' " (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
Defendant has a 30-year history of criminal violence and admits that he has a serious drinking problem and an anger problem. His use of alcohol and marijuana began simultaneously when he was 14 years old, over 40 years ago. He undoubtedly was not using marijuana medicinally when he was a teenager. Defendant was convicted of cultivating marijuana in 1988, long before he suffered the 2003 injury for which a physician has now recommended medical marijuana. So that crime was unrelated to any medical need for marijuana.
Under these circumstances, we cannot find that the trial court's decision to preclude him from using medical marijuana while he is on probation was beyond the bounds of reason. Defendant is a violent substance abuser with a 40-year history of marijuana use that far predates any medical need. The trial court could have reasonably concluded that his habitual use of marijuana was related to his future criminality because it might interfere with his ability to avoid his habitual drinking and habitual violence, other habits that he had maintained along with his marijuana habit for 30 years. The trial court could have reasonably been concerned that, as even Weiss admitted, marijuana could lower defendant's inhibitions. We reject defendant's Lent challenge to the court's order denying his modification motion.
C. Constitutional Challenge
Defendant contends that the court's order denying his modification motion abridged his constitutional right to privacy.
"[T]he right to privacy is not absolute, but may yield in the furtherance of compelling state interests." (People v. Stritzinger (1983) 34 Cal.3d 505, 511.) A probation condition may permissibly infringe on a probationer's constitutional rights so long as the condition is narrowly tailored. (Sheena K., supra, 40 Cal.4th at p. 890.) Assuming arguendo that defendant's privacy interests were infringed upon by the court's order, the constitutional right to privacy is not violated if "the invasion of the privacy interest is justified because it substantially furthers one or more legitimate competing or countervailing privacy or non-privacy interests." (In re Christopher M. (2005) 127 Cal.App.4th 684, 695 (Christopher M.), disapproved on a different point in People v. Gonzales (2013) 56 Cal.4th 353, 373.) In a case concerning a prohibition on the use of medical marijuana during probation, "[t]he requisite balancing contemplates a judicial assessment of medical need and efficacy based upon evidence: the defendant's medical history, the gravity of his or her ailment, the testimony of experts or otherwise qualified witnesses, conventional credibility assessments, the drawing of inferences, and perhaps even medical opinion at odds with that of the defendant's authorizing physician." (People v. Leal (2012) 210 Cal.App.4th 829, 844.)
In this case, the trial court could have reasonably concluded that defendant did not have a strong need to use medical marijuana during his probationary period. Defendant was receiving conventional treatment for his ailments from his primary care physician, and it was not apparent that this treatment or other available treatments would not be as efficacious as medical marijuana. His primary ailment, chronic back pain, was a common one that even Weiss admitted could be treated with conventional modalities. On the other side of the balance, the trial court was legitimately concerned that defendant's use of marijuana during his probationary period would pose a risk of danger to the community because it could contribute to the continuation of his substance-abuse-fueled criminal violence. Furthermore, the court did not preclude defendant from renewing his request upon a showing that his need for medical marijuana could be safely balanced against this risk.
We conclude that the court did not err in concluding that uncontrolled medical marijuana use combined with defendant's lengthy history of criminal violence and substance abuse posed too much danger to the community to permit. The risk that defendant's use of marijuana would increase the danger he posed to the community coupled with his lack of a strong need for medical marijuana supports the trial court's decision denying his modification request.
III. Disposition
The order is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.