Filed 2/28/14 P. v. Aukerman CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048479

         v.                                                            (Super. Ct. No. 12WF0268)

JOHN PHILIP AUKERMAN,                                                  OPINION

     Defendant and Appellant.


                   Appeal from an order of the Superior Court of Orange County, Christopher
Evans, Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.) Affirmed.
                   Jesse W.J. Male, Michelle Rogers and Loleena Ansari, 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, Charles Ragland and
Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.


                                          *                  *                  *
              As part of a plea agreement, defendant John Phillip Aukerman was
sentenced to four years in the county jail. The sentence was divided into one year in the
county jail and three years on mandatory supervision. One condition of his supervision
prohibited defendant from using “unauthorized drugs, narcotics, or controlled substances,
and [required him to] submit to testing as directed by any peace officer or mandatory
supervision officer.” Ten months later, a search of defendant’s residence resulted in the
discovery of 32 grams of marijuana and drug paraphernalia. The probation officer filed a
petition for arraignment on mandatory supervision violation, alleging these facts. At the
hearing, defendant presented a valid medical marijuana prescription card and argued that
because the marijuana had been prescribed, his possession was “authorized.” The trial
court rejected this argument and defendant repeats it here. We likewise reject the
argument and affirm the trial court’s order.


                                       DISCUSSION


              Defendant argues the quoted condition not to use unauthorized drugs is
vague and overbroad. To the extent this contention is an attack on the imposition of the
condition at the time of sentence, he failed to appeal from his original sentence and
cannot raise the issue here.
              Furthermore, the Medical Marijuana Program (Health & Saf. Code §§
11362.7 et seq.) places the burden on a probationer who uses medical marijuana to
request the sentencing court to allow such use. Health and Safety Code
section 11362.795, subdivision (a)(1) provides, “[a]ny criminal defendant who is eligible
to use marijuana . . . may request that the court confirm that he or she is allowed to use
medical marijuana while he or she is on probation. . . .” The same code section makes it
clear that, if the medical prescription is issued during the period of probation, the burden
is on the probationer to seek court permission to use medical marijuana. (Health & Saf.

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Code, § 11362.795, subd. (a)(3).) The court has to make specific findings when granting
such a request. (Health & Saf. Code, § 11363.795, subd. (a)(2).) No such permission
was sought here and, as a result, the necessary findings were not made. Although the
statute relates to “probation,” while defendant was subject to “mandatory supervision,”
Penal Code section 1170, subdivision (h)(5)(B)(i) provides the supervision shall be
conducted “by the county probation officer in accordance with the terms, condition, and
procedures generally applicable to persons placed on probation.” Therefore, Health and
Safety Code section 11362.795 is applicable to mandatory supervision. Thus, the
prohibition on the use of “unauthorized drugs, narcotics, or controlled substances,” when
read together with Health and Safety Code section 11362.795, clearly applies to
physician prescribed medical marijuana unless approved by the court.
              Defendant also argues the drug use term is unconstitutionally invalid, citing
provisions in the California Constitution declaring life, liberty, and safety to be
inalienable rights (Cal. Const., art. I, § 1) and the substantive due process protections of
the United States Constitution (U.S. Const., 5th & 14th Amends.) and the California
Constitution (Cal. Const., art. I, § 7, subd. (a)). Defendant bases this argument, without
citing factual or legal authority, on a statement that there is “no rehabilitative interest in
impeding defendant from using medication that is prescribed for him.” He acknowledges
there is no case law to support this argument and recognizes that an authority he cites,
Raich v. Gonzales (9th Cir. 2007) 500 F.3d 850, “declin[ed] to extend protection to
medical marijuana because medical use of marijuana had not yet become fundamental
and implicit in the concept of ordered liberty.” The other cited case, Abigail Alliance,
Better Access v. Von Eschenbach (D.C. Cir. 2007) 495 F.3d 695, is to the same effect.
              Defendant also argues his use of medical marijuana was not “willful.” The
trial court implicitly found that it was and it is not our prerogative to determine
credibility. “We resolve all factual conflicts and questions of credibility in favor of the
prevailing party and indulge in all legitimate and reasonable inferences to uphold the

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finding of the trial court if it is supported by substantial evidence which is reasonable,
credible and of solid value.” (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) The
stipulation to the facts alleged in the petition do not raise any issues as to whether
defendant’s possession was willful and we fail to perceive how such possession could be
anything other than willful.
              Finally, defendant asks us to correct the minute order to reflect that the
court’s approval is required for the use of medical marijuana. But, again, the above
quoted provision of Health and Safety Code section 11362.795 to the same effect, makes
such a change unnecessary.


                                       DISPOSITION


              The order is affirmed.



                                                   RYLAARSDAM, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.




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