People v. Brooks

In December 2006, Brooks was arrested for possession of marijuana and methamphetamine. In February 2007, he pled guilty to one count of possession of methamphetamine. Brooks waived Proposition 36 probation (Pen. Code, § 1210.1, subd. (b)(4)), and the trial court placed him on formal probation for three years. Among the terms and conditions of probation was that Brooks not be in possession of illegal drugs unless on recommendation of a physician pursuant to Proposition 215, the Compassionate Use Act of 1996 (CUA), section 11362.5 et seq.

In January 2009, the police stopped Brooks for a traffic violation and found approximately two pounds of marijuana in his car. The quantity and packaging led them to arrest Brooks for possession of marijuana for sale.

Instead of bringing a separate charge, the prosecution moved to revoke Brooks’s probation. A contested probation violation hearing was held in February 2009. Brooks testified that the marijuana was for his personal use, he cooked it into a variety of foods, and that at the time of his arrest he showed the police a marijuana recommendation from a physician.

Dr. David Bearman testified he gave Brooks a marijuana recommendation in January 2007. Bearman said that two pounds was a reasonable amount for personal use, particularly for someone who ingested it by means other than smoking. Bearman had given Brooks the recommendation for asthma, irritable bowel syndrome and shoulder pain.

The court found Brooks possessed marijuana for sale, not personal use. It found him in violation of probation. It reinstated probation but modified the terms to prohibit Brooks from any use or possession of controlled substances.

DISCUSSION

Brooks contends that as a matter of law the court cannot impose a probation condition barring the use of doctor-recommended medical marijuana.

In 1996, the electorate passed Proposition 215, the CUA, later codified as section 11362.5. Subdivision (d) of section 11362.5 provides: “Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary

In People v. Bianco (2001) 93 Cal.App.4th 748 [ 13 Cal.Rptr.2d 392 ], the appellate court held that section 11362.5 is not a defense to a violation of probation that directs the defendant to “obey all laws.” (93 Cal.App.4th at pp. 751-752.) It reasoned that marijuana use, even with a doctor’s recommendation, is a violation of federal law. (Id. at p. 753.) The court further reasoned that, federal law aside, a probation condition can prohibit otherwise lawful conduct that is reasonably related to the defendant’s criminal offense. (Id. at pp. 753-754.)

In People v. Mower (2002) 28 Cal.4th 457 [ 122 Cal.Rptr.2d 326 , 49 P.3d 1067 ], our Supreme Court held the trial court erred in instructing that the defendant had the burden of proving his medical marijuana defense by a preponderance of the evidence. Instead, the defendant only had to raise a reasonable doubt. In so holding, the court said: “As a result of the enactment of section 11362.5 [,] [subdivision] (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.” (Id. at p. 482.)

In People v. Tilehkooh (2003) 113 Cal.App.4th 1433 , 1445-1447 [ 7 Cal.Rptr.3d 226 ], the court revisited its opinion in Bianco. Relying on Bianco, the prosecution argued the defendant’s possession of medical marijuana under the CUA violated the probation condition “obey all laws.” The court, prompted by Mower, decided that Bianco was wrong in stating that possession of marijuana under the CUA violated the defendant’s probation because it violated federal law.

Neither Mower nor Tilehkooh helps Brooks. The cases simply conclude that the use of marijuana under the CUA is lawful in California and that such use does not violate the probation condition “obey all laws.” (People v. Tilehkooh, supra, 113 Cal.App.4th at p. 1445.) Neither case holds that the trial court cannot ever impose a probation condition barring the use of medical marijuana. At best, Brooks quotes Tilehkooh, supra, 113 Cal.App.4th at page 1444, which states: “A rehabilitative purpose is not served when the probation condition proscribes the lawful use of marijuana for medical purposes pursuant to section 11362.5 any more than it is served by the lawful use of a prescription drug.” Tilehkooh, however, does not sanction a section 11362.5 defense where there is a claim that the defendant “diverted marijuana for nonmedical purposes. [Citation.]” (Tilehkooh, supra, at p. 1437.) There may well be circumstances under which a trial court may properly ban even a prescription drug as a condition of probation.

Brooks contends depriving him of the use of marijuana recommended by a doctor constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.

Brooks relies on Estelle v. Gamble (1976) 429 U.S. 97 , 107 [ 50 L.Ed.2d 251 , 97 S.Ct. 285 ]. There the court held that “deliberate indifference” by prison authorities to an inmate’s medical needs could raise a constitutional claim. (Id. at p. 105.) Even assuming Estelle applies to a probation condition imposed by a court on someone who is not confined in a prison, Brooks is not helped. The court did not exhibit a deliberate indifference to Brooks’s medical needs. There was no evidence medical marijuana was the only treatment or even the most effective treatment for his medical condition. Moreover, there is ample evidence from Brooks’s criminal history that he suffers from addiction to intoxicating substances. Keeping him from such a substance does not constitute deliberate indifference to his medical needs.

The judgment is affirmed.

Yegan, J., and Coffee, J., concurred.

On April 7, 2010, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied June 30, 2010, S182147. Kennard, J., and Werdegar, J., were of the opinion that the petition should be granted.