Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF060003067
CANTIL-SAKAUYE, J.
Defendant, Vernon Emile Smith, Jr., appeals the trial court’s denial of his request to use physician-recommended marijuana while on probation, pursuant to Health and Safety Code section 11362.795, subdivision (a) (§ 11362.795(a)). The trial court denied the request stating, without explanation, that defendant’s showing was “insufficient” and noting that defendant had previously violated his probation (by committing misdemeanor vandalism). We conclude that the trial court did not properly exercise its discretion in denying defendant’s request and we remand for further proceedings.
Hereafter, undesignated statutory references are to the Health and Safety Code.
BACKGROUND
In December 2006, the Sutter County District Attorney filed a criminal complaint against defendant charging him with the following crimes: (1) transporting methamphetamine; (2) possessing methamphetamine for sale; and (3) giving away, offering to give away, transporting, or offering to transport or attempting to transport, not more than 28.5 grams of marijuana. In June 2007, defendant pled guilty to possessing methamphetamine for sale, and defendant was placed on probation subject to certain conditions, one of which (condition 10) precludes him from using or possessing marijuana, with or without a physician’s recommendation/prescription, without prior court approval. In April 2009, defendant admitted violating his probation by committing misdemeanor vandalism. Defendant was reinstated on probation and given seven days in jail.
In July 2009, defendant filed a motion under section 11362.795(a) for an order permitting him to use medical marijuana while on probation. With his motion, defendant submitted an embossed “Physician’s Statement” signed by Philip A. Denney, M.D., and dated September 24, 2008. The Physician’s Statement reads: “This certifies that [defendant] born on 06-20-86 was examined in my office. He/she has a serious medical condition which, in my professional opinion, may benefit from the use of medical cannabis. I have discussed the potential risks and benefits of medical cannabis use with the above named person. I approve his/her use of cannabis as medicine. Use of this medication alone, with alcohol or other mind-altering medications may produce physical or mental impairment affecting the performance of potentially dangerous tasks. Use caution until you know how this medication affects you. Use the least amount of medical cannabis needed to relieve symptoms. I recommend that you not use tobacco. Please use discretion and respect the rights of others. This approval will expire one year from the above date [09-24-08].” The bottom of the Physician’s Statement contains a separate “Patient Declaration” signed by defendant and dated September 24, 2008. This declaration states: “I [defendant], the undersigned, declare that all the information provided to the above physician is true and correct under penalty of perjury. I am a California resident.” Additionally, in connection with the motion, defense counsel submitted a declaration in which he stated, among other things, that defendant “wishes to be able to possess and use medicinal marijuana.”
No objection was raised to the Physician’s Statement.
No objection was raised to defense counsel’s declaration.
In July 2009, the trial court heard defendant’s motion. The parties orally argued their respective positions based on their written submissions; no testimony was taken. At the hearing, the court pondered “how would we possibly know that the medical marijuana that has been prescribed, in quotes, to Mr. Smith is effective since the prescription was obtained after he was placed on probation, and up until this moment, he still is prohibited from possessing or consuming marijuana with or without a recommendation?” The court continued, “[s]o in looking at the physician’s statement and looking at the--well, the physician’s statement says that Mr. Smith has a serious medical condition which is unspecified which in my professional opinion may benefit from the use of medical cannabis. And I see in the motion by [defense counsel] the defendant has tried alternatives to medicinal marijuana with little positive effect. [¶] My question is, is there some reason to believe medical marijuana will be effective for Mr. Smith?”
Defense counsel rejoined: “Number one, I’m not sure that’s the question that needs to be answered for the motion. The medicinal marijuana laws are clear. If one seeks the consultation of a physician and a physician recommends medicinal marijuana, the court is not in a position to go behind the doctor/patient privilege and inquire as to the efficacy of the doctor’s statement. That’s his recommendation. That’s between he [sic] and the patient. I don’t know if the court is in a position to go behind that statement. If the other remedies have been ineffective, then the medicinal marijuana may be effective.... And if we had to show in each case that the medicinal marijuana would be effective, we would never be able to make that showing absent abuse of medicinal marijuana. In other words, you have to violate his probation to make the claim.”
The court recognized the “conundrum” but denied the motion. The court stated that “simply establishing that the defendant has been given a prescription and states that--which states that he may benefit from the use of medical cannabis is insufficient, but the court also notes Mr. Smith is being placed on probation, has not been in compliance with probation, has one violation of probation already. The court does not find good cause to modify the terms and conditions of probation and will deny the request.” This timely appeal followed.
DISCUSSION
Defendant contends that the trial court abused its discretion in denying his request to use medicinal marijuana while on probation. Defendant concedes that “Health and Safety Code section 11362.795, which specifically authorizes a court to modify the terms of probation to permit the probationer to use medical marijuana, does not explain what factors the court should consider. [Defendant], however, submits that the court’s refusal to allow [him] to use marijuana, with a doctor’s recommendation, was arbitrary and capricious, and did not serve the purposes of rehabilitation or reformation.” Defendant notes that the trial court did not explain how defendant’s showing was “insufficient.”
I.
Section 11362.795(a) is part of the Medical Marijuana Program (MMP) enacted by the Legislature and effective as of 2004. (People v. Brooks (2010) 182 Cal.App.4th 1348, 1352 (Brooks).) Section 11362.795(a) provides in pertinent 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 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.” (§ 11362.795, subd. (a)(1)-(4).) In his briefing below, defendant cited and relied upon both subdivisions (a)(1) and (a)(3) in support of his request to use medical marijuana while on probation.
A.
Defendant’s Eligibility for Marijuana Use
Under section 11362.795(a), the first task is to determine whether defendant is “eligible to use marijuana pursuant to Section 11362.5.” (§ 11362.795(a)(1).) This section, i.e., “[s]ection 11362.5, ” is known as the Compassionate Use Act (CUA), an initiative measure adopted by the voters in 1996 as Proposition 215. (People v. Kelly (2010) 47 Cal.4th 1008, 1012.) The CUA exempts eligible patients from “prosecution or sanction” for the possession and cultivation of marijuana. (§ 11362.5, subd. (b)(1)(B); People v. Mower (2002) 28 Cal.4th 457, 482.)
With respect to eligibility under the CUA, in the context of establishing a defense to criminal prosecution or sanction we have said: “Although section 11362.5 affords a defense to ‘seriously ill Californians’ who obtain and use marijuana for medical purposes, it includes within that category a list of illnesses, including arthritis, and ‘any other illness for which marijuana provides relief.’ (Subd. (b)(1)(A), italics added.) To meet the requirements of section 11362.5 it is the defendant’s burden to show ‘that he or she was a “patient” or “primary caregiver, ” that he or she “possesse[d]” or “cultivate[d]” the “marijuana” in question “for the personal medical purposes of [a] patient, ” and he or she did so on the “recommendation or approval of a physician” (§ 11362.5(d)).’” (People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1441 (Tilehkooh) quoting People v. Mower, supra, 28 Cal.4th at p. 477.) Naturally, these criteria were phrased in the past tense (e.g., possessed the marijuana in question) because a defense operates to preclude liability for past conduct. Here, by contrast, defendant seeks to possess and use marijuana prospectively. Accordingly, phrasing it in the future tense, to meet the requirements of the CUA (i.e., to be eligible to use marijuana under the CUA), at a minimum, defendant must show that he is a “patient, ” that he seeks to “possess[]” the “marijuana” in question “for [his] personal medical purposes, ” and that he has the “recommendation or approval of a physician” to do so. (§ 11362.5, subdivision (d); cf. Tilehkooh, supra, at p. 1441.) Defendant met his burden.
The Physician Statement demonstrates, and no party disputes, that defendant is a patient of Dr. Denney’s. In addition, the Physician Statement along with counsel’s declaration shows, and no party disputes, that defendant intends to possess and use the medical marijuana in question for his personal medical purposes, i.e., to relieve his serious medical condition. Finally, the Physician Statement demonstrates, and no party disputes, that defendant has the recommendation or approval of a physician, Dr. Denney, to use marijuana for defendant’s personal medical purposes. Accordingly, defendant sufficiently established his eligibility to use marijuana under the CUA.
In their briefing, both parties agree that the Physician’s Statement is a “recommendation” for marijuana use. For purposes of this appeal, we accept this characterization of the Physician’s Statement.
In analyzing defendant’s request, it appears the trial court took issue with the sentence in the Physician’s Statement where Dr. Denney certified that defendant had a serious medical condition which, in Dr. Denney’s professional opinion, “may benefit from the use of medical cannabis.” (Italics added.) While it remains uncertain exactly why the trial court regarded this “may benefit” sentence as “insufficient, ” case law holds otherwise.
The court in City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 374, addressed a similar physician’s statement. In words equally applicable here the court observed: “[T]he statement from his physician states [defendant] has a serious medical condition and may benefit from the use of medical cannabis, and that puts [defendant] in the category of persons the CUA and MMP were designed to protect.” (Ibid.) To the extent the trial court was looking for a more strongly-worded representation on the efficacy of medical marijuana as to defendant’s condition, nothing in the CUA, nor section 11362.795(a), nor case law, imposes a requirement that a physician’s recommendation or approval of marijuana use include a strong statement that marijuana will successfully treat the condition at issue. Here, Dr. Denney’s professional opinion, uncontradicted by any evidence in the record, that defendant may benefit” from marijuana provides no basis for concluding that defendant’s showing of eligibility under the CUA was “insufficient.”
That no such strong statement is required is not surprising. It is not uncommon for a physician to prescribe treatment based on a belief that it might/may benefit the patient. (See, e.g., Wilson v. Barnhart (10th Cir. 2004) 87 Fed.Appx. 689, 692 [physician believed patient “might benefit from physical therapy” and prescribed physical therapy sessions]; Losser v. Astrue (W.D. Pa. Aug. 12, 2008, No. 07-1473) 2008 U.S. Dist. LEXIS 65900, at *17 [physician indicated that patient “might benefit from a mood stabilizer and prescribed one milligram of Risperdal”]; Saco v. Tug Tucana Corp. (D. Mass. 2007) 483 F.Supp.2d 88, 95 [physician believed patient “‘may benefit from some rehab with conditioning and range of motion exercises’” and prescribed conditioning exercises]; Lucio v. Barnhart (N.D.Ill. June 22, 2004, No. 03 C 7078) 2004 U.S. Dist. LEXIS 12207, at *22 [physician opined that patient “might benefit from a low-dose tricyclic antidepressant and prescribed Elavil”]; Howell Metal Co. v. Adams (Va.Ct.App. 2001) 543 S.E.2d 629, 630 [physician believed patient “‘might benefit from treatment of anxiety and depression’” and prescribed an antidepressant].) That no more is required is understandable given the state of the research on medical benefits of marijuana. See Conant v. Walters (9th Cir. 2002) 309 F.3d 629, 643 (conc. op. of Kozinski, J.) [recognizing that the evidence supporting the medical use of marijuana is not conclusive and stating “that there is a genuine difference of expert opinion on the subject”];see also City of Garden Grove v. Superior Court, supra, 157 Cal.App.4th at p. 377 [same].)
In a similar vein, the People argue that “defendant completely failed to justify the need for medicinal marijuana” and “he provided no indication that his alleged condition could not have been treated in another way.” The People’s argument is misguided. The People concede that defendant obtained a physician’s recommendation for marijuana use, and, indeed, defendant established his eligibility under the CUA. Nothing in the CUA (or § 11362.795(a)) obligated defendant to further “justify [his] need for medical marijuana.” Moreover, there is no requirement under the CUA (or § 11362.795(a)) that defendant demonstrate that marijuana is the only viable treatment option. (See People v. Tilehkooh, supra, 113 Cal.App.4th at p. 1441) [concluding that the “[t]he medical necessity defense is not the measure of the right to obtain and use marijuana for medical purposes granted by ” the CUA].)
Once the requirements of the CUA are satisfied, as they were below, “the possession and cultivation of marijuana is no more criminal... than the possession and acquisition of any prescription drug with a physician’s prescription.” (People v. Mower, supra, 28 Cal.4th at p. 482.) Although defendant sufficiently established his eligibility to use marijuana under the CUA and thus could invoke section 11362.795(a), defendant was not thereby automatically entitled to possess and use medical marijuana while on probation. Notwithstanding his showing of eligibility under the CUA, under section 11362.759(a), the trial court still retained discretion to deny his request. (See People v. Brooks, supra, 182 Cal.App.4th at p. 1352.) This is consistent with the general rule that a probation condition may regulate even noncriminal conduct if the condition is reasonably related to the crime for which the defendant was convicted or to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486.) This takes us to the trial court’s discretionary decision to deny defendant’s request.
If the demonstration of eligibility to use marijuana under the CUA automatically entitled the probationer to judicial confirmation that he/she can use marijuana while on probation (§ 11362.795(a)(1)) or a modification (§ 11362.795(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.
B.
Trial Court’s Exercise of Discretion
“‘[E]xercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) “‘The scope of discretion always resides in the particular law being applied, i.e., in the “legal principles governing the subject of [the] action....” Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion.’ [Citation.]” (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 831.) Generally, a trial court abuses its discretion when its determination is arbitrary, capricious, or exceeds the bounds of reason. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
When considering a probationer’s request under section 11362.795(a)(1) to confirm that he/she is allowed to use medical marijuana while on probation, the statute provides that 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.” (§ 11362.795(a)(2).) When considering a probationer’s request under section 11362.795(a)(3) to modify the terms of probation to permit him/her to use medical marijuana while on probation, the statute provides that the “court’s consideration of the modification request... shall comply with the requirements of this section.” (§ 11362.795(a)(4).) By operation of section 11362.795(a)(4), the same “requirements” applicable to confirmation requests under section 11362.795(a)(1) pertain to probation modification requests under section 11362.795(a)(3). Therefore, with respect to the latter, the court’s decision and the reasons for it must be stated on the record and an entry stating those reasons must be made in the court’s minutes.
Here, on the record, the trial court stated the following with respect to defendant’s request: “[S]imply establishing that the defendant has been given a prescription and states that--which states that he may benefit from the use of medical cannabis is insufficient, but the court also notes Mr. Smith is being placed on probation, has not been in compliance with probation, has one violation of probation already. The court does not find good cause to modify the terms and conditions of probation and will deny the request.” Following the hearing, minutes were entered which state: “The Court has read and considered the motion filed on the Defendant’s behalf as well as the People’s response. The court does not find good cause to grant th[e] motion.” There are several problems with the court’s disposition.
To begin with, the trial court was required to state its “reasons” for its decision on the record. Here, at least one basis for the court’s decision was that defendant’s showing was “insufficient.” This conclusory statement, made without further explanation, does not meet the court’s statutory obligation to specify the “reasons” for its decision. Nor does it fully comport with the axiom that “‘exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.’ [Citation.]” (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 977, italics added.) Moreover, as discussed above, to the extent the court regarded defendant’s showing as “insufficient” because of the “may benefit” phraseology in the Physician’s Statement, the court’s decision was erroneous. To the extent the court regarded defendant’s showing as “insufficient” for some other reason, we do not perceive why and we are not inclined to speculate exactly how defendant’s showing could be viewed as insufficient when the statute squarely places the onus on the trial court (not the appellate court) to specify the reasons for its decision.
The other “reason” the court gave for its decision to deny defendant’s request was that defendant had violated his probation. This reason, standing alone, is an arbitrary basis upon which to deny defendant’s request. Defendant violated his probation by committing misdemeanor vandalism. This type of malfeasance does not create any legitimate, rational concern that, if given permission to possess and use medical marijuana, defendant will smoke/ingest it for nonmedical reasons or divert it for nonmedical purposes. (Cf. People v. Brooks, supra, 182 Cal.App.4th at p. 1353 [upholding trial court’s imposition of a probation condition precluding medical marijuana use; probationer violated probation by possessing approximately two pounds of marijuana for sale, not for medicinal use as he claimed, and thus a probation condition precluding him from using medical marijuana “remove[d] any temptation to try to hide criminal possession of marijuana behind the CUA”]; People v. Moret (2009) 180 Cal.App.4th 839, 848 [upholding trial court’s imposition of a probation condition precluding medical marijuana use; defendant’s conduct raised a genuine question about his honesty and the trial court “quite justifiably” doubted defendant’s claim that he needed medical marijuana for self-purported migraine headaches].) True, “[t]here may well be circumstances under which a trial court may properly ban even a prescription drug as a condition of probation.” (People v. Brooks, supra, 182 Cal.App.4th at p. 1351.) Here, however, the trial court gave no explanation, nor is it apparent, why defendant’s commission of misdemeanor vandalism is relevant to whether he should be banned from using what is tantamount to a prescription drug to treat his serious medical condition.
To be accurate, on the record, the trial court stated that it “notes” defendant violated his probation. Therefore, whether defendant’s probation violation was actually one of the court’s reasons for its decision (as opposed to something noted in passing) is not altogether clear. However, for present purposes, we construe the court’s statement as meaning that defendant’s violation of probation was one reason for its decision.
In the People’s briefing below, the People intimated that defendant’s lack of “good conduct” in violating his probation was relevant to whether his probation should be modified to permit him to use medical marijuana. In support, the People cited Penal Code section 1203.3(a), which states: “The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. The court may at any time when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person so held.” The People’s reliance on this statute is misplaced. Taken facially, the statutory reference to the probationer’s “good conduct and reform” is tied to the termination of probation, not the modification of probation conditions, and only the latter is at issue here. In any event, there is no meaningful relationship between the defendant’s lack of a good conduct, i.e., his commission of misdemeanor vandalism, and his request to modify a condition of his probation so that he may use physician-recommended medical marijuana.
With respect to the court’s minutes, they do not specify the reasons for the court’s decision. The minutes merely assert the court’s conclusion that it “does not find good cause” to grant the motion. Under the statute, the reasons why the court was denying defendant’s motion were required to be stated in the minutes.
In sum, the trial court did not follow statutory procedures and properly exercise its discretion. In exercising its discretion, the trial court was required to, but neglected to, specify the reason(s) why defendant’s showing was “insufficient.” The other reason proffered by the trial court--that defendant violated his probation--was, on the facts of this case, an arbitrary basis upon which to deny defendant’s request. Accordingly, we reverse the trial court’s order denying defendant’s request. We will, however, remand with instructions to hold a new hearing on the matter so that compliance with the requirements of section 11362.795(a) can be achieved and discretion can be exercised in the manner required by statute. Although appellate courts will not order a remand for further proceedings where to do so would be futile (People v. Seldomridge (1984) 154 Cal.App.3d 362, 365; Charles H. Duell, Inc. v. Metro-Goldwyn-Mayer Corp. (1932) 128 Cal.App. 376, 385), we cannot say that a remand for further proceedings would be futile here. It is possible that a legitimate, rational reason exists to preclude defendant from using medical marijuana while on probation. Moreover, a remand seems especially warranted given that the Physician’s Statement has expired during the pendency of this appeal.
We note that the People have articulated new arguments on appeal which were not raised below.
II.
Constitutional Challenge
As an alternative argument, defendant contends that the court’s refusal to permit him to use medical marijuana “with a valid prescription” was not only an abuse of discretion, but it also violated his “right to privacy guaranteed by both the federal and state constitution.” Because we agree with defendant that the trial court abused its discretion in denying his request and are remanding the case, defendant’s alternative argument is moot and we decline to address it. (California Assn. of Prof. Scientists v. Department of Fish & Game (2000) 79 Cal.App.4th 935, 955 [declining to address arguments rendered moot on appeal).] Moreover, defendant failed to raise his constitutional challenge below, and, therefore, waived it on appeal. (SeePeople v. Gardineer (2000) 79 Cal.App.4th 148, 151 [concluding that a constitutional challenge to a probation condition, on vagueness grounds, was waived on appeal where not raised below].)
Technically, defendant did not have a “prescription” for marijuana.
DISPOSITION
We reverse the trial court’s denial of defendant’s request to use medical marijuana while on probation and remand with instructions to hold new proceedings on the matter in conformity with section 11362.795(a).
We concur: NICHOLSON, Acting P. J., ROBIE, J.