Filed 2/24/15 P. v. Hicks CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E060081

v.                                                                       (Super.Ct.No. FWV1102758)

MAURICE SHAWN HICKS,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller and

Cara D. Hutson, Judges. Affirmed.

         Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Heather M.

Clark and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

         Pursuant to a plea agreement, defendant and appellant Maurice Shawn Hicks pled

no contest to assault by means likely to produce great bodily injury (Pen. Code, § 245,

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subd. (a)(1), count 3), corporal injury to a cohabitant (Pen. Code, § 273.5, count 4), and

criminal threats (Pen. Code, § 422, count 5). A trial court imposed a five-year state

prison term, but suspended the sentence and placed defendant on probation for three

years, under specified conditions. The court referred the matter to the probation

department for further terms and held another hearing to impose the additional terms.

Subsequently, the court held a hearing pursuant to People v. Vickers (1972) 8 Cal.3d 451

and found defendant in violation of his probation. The court revoked his probation and

imposed the previously suspended sentence.

       On appeal, defendant contends that the court erred in revoking his probation based

on his use of medical marijuana. We disagree and affirm.

                            PROCEDURAL BACKGROUND

       On August 31, 2012, the court modified defendant’s probation conditions to add

the following condition: “Neither use nor possess any controlled substance without

medical prescription. A physician’s written notice is to be given to the probation

officer.”

       On September 30, 2013, the probation department filed a petition for revocation of

probation, alleging that defendant was given a presumptive drug test on September 25,

2013, and it returned a positive result for marijuana and cocaine.

       A probation revocation hearing was held, beginning on November 12, 2013.

Probation Officer Ricque Belluscio testified that on September 24, 2013, he conducted a

home visit at defendant’s residence. Defendant was not there, so the probation officer




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talked to his grandmother. Officer Belluscio left a card instructing defendant to report to

the probation office the next day.

       Defendant reported to probation the next day and was given a presumptive drug

test. The result was positive. Defendant signed a form in which he voluntarily admitted

to using marijuana on September 23, 2013. Defendant told Officer Belluscio that he had

a medical marijuana card. The officer told him that the probation department’s policy

was that probationers cannot use marijuana, even if they have a card. However, at the

hearing, Officer Belluscio testified that he “would have to research to see if that’s an

actual probation policy or if it is a directive that was distributed through our probation e-

mail system.”

       Another probation officer, Addi Garcia, testified that he was defendant’s probation

officer, and that he previously conducted a home visit on October 2, 2012. Defendant

was not there, but his grandmother indicated which bedroom was his. Officer Garcia’s

partner searched the bedroom and found a sword and several empty bottles of medical

marijuana. Officer Garcia met with defendant the next day. Defendant said he was using

marijuana daily. Officer Garcia told him he could not possess any type of marijuana

paraphernalia and that he could not use marijuana at all. Defendant said he understood.

       Defendant testified on his own behalf at the revocation hearing. He admitted that

he had failed to appear for his probation review hearing on January 18, 2013, and that he

was subsequently arrested and brought before the court. At that time, the court did not

impose his suspended sentence, but warned him against committing any further

violations.


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       Defendant further admitted that on September 23, 2013, he told the probation

officers he smoked marijuana. He said he told the officers that his probation terms said

he could not use drugs unless they were prescribed by a doctor. Defendant said he had a

marijuana prescription and showed the officers his card; they then told him he was not

allowed to use medical marijuana. Defendant confirmed that he signed the form

admitting that he smoked marijuana. He also said that day was the first time he had heard

that he was not allowed to have medical marijuana. Defendant did not remember Officer

Garcia previously telling him in October 2012, that he could not use medical marijuana.

Defendant confirmed that his medical marijuana prescription expired on September 5,

2013. He also admitted that he continued to use marijuana after his prescription had

expired.

       The court heard and considered the testimonies, as well as argument from counsel.

It then stated that the minute order dated January 25, 2013, indicated that the court said it

would not proceed with a previous probation violation petition, but warned defendant that

any further violation of probation would result in the imposition of a state prison

sentence. The court then found that defendant had willfully violated his probation, noting

that he smoked marijuana on a daily basis. The court remarked that the previous court

made it very clear that he was not to deviate from his probation conditions. The court

stated that if defendant had a medical marijuana card, and he kept smoking after it had

expired, and if he ignored the probation officer’s directive to not smoke, even with a card,

then he was in violation. The court revoked his probation and imposed the five-year state

prison sentence.


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                                         ANALYSIS

     The Court Properly Exercised its Discretion in Revoking Defendant’s Probation

       Defendant contends that the trial court erred by revoking his probation based on

his use of medical marijuana. He points to the probation officer’s testimony concerning a

blanket policy prohibiting all probationers from using marijuana and claims that such

policy violates Proposition 215. He further argues that the probation officer did not

provide any written notification of this policy. Finally, defendant argues that he had

previously obtained a doctor’s recommendation authorizing him to use medical

marijuana, and that his failure to renew the medical marijuana card when it expired did

not justify a finding that he was in violation of his probation. We conclude that the court

properly found him in violation.

       A. Relevant Law

       “Trial courts are granted great discretion in deciding whether or not to revoke

probation.” (People v. Kelly (2007) 154 Cal.App.4th 961, 965.) “A court may revoke

probation ‘if the interests of justice so require and the court, in its judgment, has reason to

believe from the report of the probation officer or otherwise that the person has violated

any of the conditions of his or her probation . . . .’ [Citation.] ‘As the language of [Penal

Code] section 1203.2 would suggest, the determination whether to . . . revoke probation

is largely discretionary.’ [Citation.] ‘[T]he facts supporting revocation of probation may

be proven by a preponderance of the evidence.’ [Citation.] However, the evidence must

support a conclusion the probationer’s conduct constituted a willful violation of the terms




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and conditions of probation. [Citation.]” (People v. Galvan (2007) 155 Cal.App.4th 978,

981-982; see Pen. Code, § 1203.2, subd. (a).)

       B. The Court Properly Exercised its Discretion

       The probation condition at issue here “relates to otherwise legal conduct because

the medical use of marijuana has been legal in California since 1996 when the electorate

passed Proposition 215, the CUA [Compassionate Use Act], codified as Health and

Safety Code section 11362.5.” (People v. Hughes (2012) 202 Cal.App.4th 1473, 1479-

1480, fn. omitted (Hughes).) Under the CUA, the proscription against possession of

marijuana, in violation of Health & Safety Code section 113571, does not apply to a

patient who possesses marijuana for personal medical purposes upon the written or oral

recommendation or approval of a physician. (§ 11362.5, subd. (d).) The Medical

Marijuana Program (MMP) was designed to clarify the CUA and facilitate its

enforcement. (People v. Leal (2012) 210 Cal.App.4th 829, 838 (Leal).) Under the MMP,

a person who suffers from a “serious medical condition” may “register and receive an

annually renewable identification card that, in turn, can be shown to a law enforcement

officer who otherwise might arrest the program participant or his or her primary

caregiver.” (People v. Kelly (2010) 47 Cal.4th 1008, 1014 (Kelly).) In other words, the

identification card identifies the holder as a person authorized to engage in the medical

use of marijuana. (§ 11362.71, subd. (d)(3).) Participation in the MMP’s identification

card system is voluntary. (Kelly, supra, 47 Cal.4th at p. 1014.)

       1 All further statutory references will be to the Health & Safety Code, unless
otherwise noted.


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       We initially address defendant’s argument that the probation department’s alleged

“blanket policy” of not permitting probationers to use medical marijuana violates the

provisions of the CUA. It is not clear that the probation department had such policy here.

Officer Belluscio testified that he “would have to research to see if that’s an actual

probation policy or if it is a directive that was distributed through our probation e-mail

system.” In any event, many courts “have affirmed probation terms that prohibit the

medical use of marijuana.” (Hughes, supra, 202 Cal.App.4th at p. 1480; see People v.

Moret (2009) 180 Cal.App.4th 839, 853 and People v. Brooks (2010) 182 Cal.App.4th

1348, 1352.)

       Defendant next contends that his probation revocation “was actually based on [his]

failure to renew his medical marijuana card” after it had expired. He contends that his

failure to renew his medical marijuana card did not constitute a violation of his probation.

The probation condition at issue stated: “Neither use nor possess any controlled

substance without medical prescription. A physician’s written notice is to be given to the

probation officer.” Contrary to defendant’s claim, the court found him in violation of his

probation because he kept smoking his medical marijuana beyond the expiration of the

card, not because he failed to renew his card.

       At oral argument, defendant argued that the expiration of a medical marijuana card

is not significant, since a doctor can give oral permission for a person to obtain and use

marijuana for medical purposes. Defendant is correct that a doctor can give a patient a

“written or oral recommendation” for use of medical marijuana. (§ 11362.5, subd. (d).)

Moreover, the expiration of a medical marijuana card is not necessarily significant, since


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possession of such card is voluntary. (§ 11362.71, subds. (a)(1) & (d)(3); County of San

Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 830.) However, what is

significant here is that defendant continued to possess and use marijuana after his medical

prescription had expired. Section 11357 criminalizes the possession of marijuana.

Section 11362.5, subdivision (d) exempts “qualified patients . . . ‘who obtain and use

marijuana for medical purposes upon the recommendation of a physician’” from criminal

prosecution. (People v. Mower (2002) 28 Cal.4th 457, 482.) In other words, for patients

with a medical prescription, the possession of marijuana “is no more criminal . . . than the

possession and acquisition of any prescription drug with a physician’s prescription.”

(Ibid.) Because defendant’s prescription had expired, he was no longer authorized to

possess or use marijuana. Moreover, unlike a person who possessed any prescription

drug, defendant was on probation, under a term that forbade him from possessing or

using any controlled substance without a medical prescription.

       Defendant asserted, at oral argument, that there is no requirement that a patient

periodically renew a doctor’s recommendation regarding medical marijuana use. In

support of his argument, he cited the following passage from People v. Windus (2008)

165 Cal.App.4th 634 (Windus): “[W]e see nothing in the [CUA] that requires a patient to

periodically renew a doctor’s recommendation regarding medical marijuana use. The

statute does not provide . . . that a recommendation ‘expires’ after a certain period of

time.” (Id. at p. 641.) However, this passage merely points out the CUA itself imposes

no automatic expiration period on a doctor’s recommendation. (Ibid.) In the instant case,

defendant’s medical prescription had expired on its own on September 5, 2013.


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Furthermore, no evidence was presented—either through medical testimony or

documentation signed by a doctor—that defendant had a valid medical recommendation

for his use of medical marijuana on September 25, 2013, the day he admitted he was still

smoking marijuana. Windus does not support the notion that he could continue to use

marijuana after his doctor’s prescription had expired by its own terms. Moreover, it is

reasonable to require that a physician’s recommendation be current. Eliminating that

requirement would mean a defendant, having once obtained a medical marijuana

prescription good until a specified date, would remain covered by the protections of the

statute indefinitely. Nothing in Windus supports this proposition. We further note that,

in Windus, the defendant’s doctor testified on the defendant’s behalf, regarding his

current need for medical marijuana. (Id. at p. 638.) In contrast, there was no physician

testimony proffered here to show a current recommendation for defendant to use medical

marijuana.

       Finally, the issue in this probation proceeding, unlike in Windus, was not whether

defendant had a right to present a CUA defense to a jury, but whether defendant violated

his probation. (See Windus, supra, 165 Cal.App.4th at p. 639.) Defendant had no valid,

unexpired prescription. There was also no testimony presented that he was even

continuing to use marijuana for medical purposes.

       Ultimately, the court did not abuse its discretion in revoking defendant’s

probation. Although the court based its finding on defendant smoking marijuana beyond

the expiration of the medical marijuana card, rather than the actual prescription, we

affirm the result because the task of an appellate court is to “review the correctness of the


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challenged ruling, not the analysis used to reach it.” (In re Baraka H. (1992) 6

Cal.App.4th 1039, 1045.) Defendant’s unlawful possession and use of marijuana clearly

supported the court’s conclusion that his conduct constituted a willful violation of his

probation.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                HOLLENHORST
                                                                          Acting P. J.


We concur:


KING
                          J.


MILLER
                          J.




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