Filed 12/23/14 P. v. Munoz CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039895
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1095700)

         v.

LUIS ALBERTO MUNOZ,

         Defendant and Appellant.



         Defendant Luis Alberto Munoz challenges the trial court’s imposition of a
probation condition that prohibits his use of medical marijuana. Defendant was
convicted by plea of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)) and
admitted an enhancement allegation that “a person not an accomplice” was present during
the burglary (Pen. Code, § 667.5, subd. (c)(21)). The court suspended imposition of
sentence and granted three years probation. Almost two years later, based on two new
encounters defendant had with police, the court granted the probation officer’s request to
modify defendant’s probation conditions to impose a condition prohibiting the use of
alcohol or drugs, including medical marijuana.
         Defendant contends the court abused its discretion when it imposed the no-
medical-marijuana condition because (1) it had no relationship to his burglary offense
and (2) it was not reasonably related to future criminality because there was no evidence
he was misusing his medical marijuana card. He also contends the trial court abused its
discretion when it imposed the condition as a “standard practice” for all probationers who
have probation conditions that prohibit the use of alcohol or illegal drugs. Finally, he
contends the condition is unconstitutionally vague and overbroad because it does not
contain an express knowledge requirement. We conclude that the court did not abuse its
discretion in imposing the no-medical-marijuana condition, but accept the Attorney
General’s concession that the condition must be modified to include a knowledge
requirement. We will therefore modify the condition and affirm the order as modified.

                           FACTS AND PROCEDURAL HISTORY

December 2010 Burglary

        In the late morning on December 23, 2010, defendant—who was then 18 years
old—and an unidentified juvenile entered a home in Monte Sereno. The homeowner was
out of town, but the tenant who lived in the downstairs apartment was home. The tenant
heard a “heavy thumping noise,” went up the stairs—just enough to peek inside his
landlord’s home—and saw two young males wearing hoodies walking through the living
room.
        Initially, the tenant thought they were workers hired by the homeowner, but since
the situation seemed odd, he decided to investigate. The tenant looked for, and did not
see, a contractor’s truck. He noticed that a side door to the garage had been forcibly
opened and saw a pile of personal property on the garage floor. The tenant called the
police. He then saw one of the burglars and “bolted at him,” yelling, “Robber, robber!”
The burglar ran off through the front yard. The tenant then encountered the other burglar,
who ran off through a creek in the back yard.
        Police officers stopped defendant and the unidentified juvenile less than half a
mile from the burglarized home. The teens, who had gotten rid of their hoodies and cut
off their jeans to make them look like shorts, said they were jogging. The unidentified

                                              2
juvenile had some of the homeowner’s jewelry in his pocket. Defendant had a “packet”
of cash ($275) in his pocket; attached to the cash was a post-it note with the homeowner’s
handwriting on it.

Bail Forfeiture, Plea, and Sentencing

       Defendant was arrested and posted bail. But he failed to appear for a court hearing
in February 2011 and the court issued a bench warrant for his arrest. The bench warrant
had a description of defendant, which stated that he had a tattoo of a marijuana leaf on his
lower left leg. Bail was reinstated after defendant appeared.
       As we have noted, defendant was charged with one count of first degree burglary
(Pen. Code, §§ 459, 460, subd. (a)), with an enhancement allegation that “a person not an
accomplice . . . was present in the residence during” the burglary (Pen. Code, § 667.5,
subd. (c)(21)). After the preliminary hearing, as part of a negotiated disposition,
defendant pleaded no contest to the burglary charge and admitted the enhancement.
Pursuant to the plea agreement, defendant agreed to waive 30 actual days of custody
credits in exchange for a one-year county jail sentence “top/bottom” plus up to five years
probation. The court advised defendant that the maximum possible sentence was six
years in prison.
       According to the probation report, defendant had several juvenile adjudications
dating back to age 13, including findings that he had engaged in conduct that, if
committed by an adult, would constitute first degree burglary. The probation report did
not contain any information about defendant’s drug or alcohol use, except a notation that
chemical testing was ordered as a condition of probation in 2005 when defendant was
13 years old.1 At sentencing in August 2011, the court suspended imposition of sentence

       1
         The Attorney General’s respondent’s brief states that defendant’s “extensive
juvenile record included a sustained petition for . . . possession of marijuana.” But the

                                             3
and granted defendant three years formal probation on several conditions, including that
he serve one year in county jail and waive 30 actual days of custody credits. The original
conditions of probation did not expressly prohibit alcohol or drug use, but it required the
then-19-year-old defendant to obey all laws, which would have prohibited his use of both
alcohol and illegal drugs.

Probation Department’s Request to Modify Probation

       On July 1, 2013, almost two years after the court granted probation, based on two
encounters defendant had with police in 2013, defendant’s probation officer asked the
court to modify the conditions of defendant’s probation to include “a substance abuse
testing order” and an order prohibiting the use of alcohol or illegal controlled substances.
       The first encounter occurred on February 25, 2013, when San José Police Officer
James Pickens responded to a call about a stolen vehicle. During his investigation,
Officer Pickens saw defendant, probationer Pablo Esparza, and Raul Huerta (who was
wanted on a felony warrant) drive up to Esparza’s house in a gray Acura. Officer
Pickens smelled the “plain odor” of marijuana when he walked by the Acura. The officer
searched Esparza’s room and found stolen property that had been in the stolen vehicle
and a “ ‘shaved key,’ ” which is “commonly used to punch the ignition” of a stolen
vehicle and start the engine. Officer Pickens arrested Esparza for possession of stolen
property and burglary tools. During the search, Huerta fled the scene.


summary of defendant’s juvenile record in the probation report does not support that
assertion. In his reply brief and at oral argument, defendant objected that the statement of
facts in the Attorney General’s brief is “prejudicially misleading” and that “this is an
important misstatement in . . . an appeal that deals solely with the validity of a marijuana-
related condition of probation.” The deputy attorney general who appeared at oral
argument acknowledged the error and apologized for misstating the record. We will rely
on the record and will not consider the misstatement of fact in the Attorney General’s
brief.

                                             4
       When the officer asked defendant where he lived, defendant said he could not
remember his address. Officer Pickens took defendant to his address of record to conduct
a probation search, discovered that the apartment was empty, and released defendant at
that address. Officer Pickens did not arrest defendant, but reported the contact to the
probation department.
       Later, when the probation officer asked defendant about the incident, defendant
said he “met with friends to celebrate the birth of his child” and “the three of them
smoked marijuana.” The probation officer reprimanded defendant and told him “the use
of illicit substances could lead to” revocation of his probation.
       The second encounter occurred on March 29, 2013, when San José police officers
responded to a report of vandalism and a possible burglary at a school. The officers
observed broken windows and Sureño gang graffiti and found a backpack that contained
a marijuana cigarette. The officers also saw a tan Acura with its lights off speeding away
from the area. When the officers pulled the Acura over, there were three men inside,
including defendant who was in the front passenger seat. The officers searched the car
and found a small sword where defendant had been sitting and a baggie of
methamphetamine (0.6 grams) in the sunroof. The driver, Pablo Ortiz, did not have a
valid driver’s license. Ortiz had a “burglary tool” (a shaved key) in his shoe. The third
male, Victor Medina, admitted he was a Sureño gang member. After being advised of his
Miranda2 rights, defendant told one of the officers he had smoked marijuana that evening
before getting together with Medina and Ortiz. All three young men told the officers they
had planned to buy alcohol when the police stopped their car. Defendant was 20 years
old at the time. Defendant was arrested for possession of illegal drugs (Health & Saf.
Code, § 11377).


       2
           Miranda v. Arizona (1966) 384 U.S. 436.

                                              5
       When defendant met with his probation officer, he was reprimanded for “his
ongoing poor decisions,” reminded that he was eligible for a prison sentence, and told
“that is where he will most likely end up” if he continued to make poor decisions.

Hearings on Probation Officer’s Request to Modify Conditions of Probation

       On July 1, 2013, the court held a hearing on the probation officer’s request to
modify the conditions of defendant’s probation. Defendant appeared, without counsel.
The court (Judge Rene Navarro, retired) described the first proposed condition as: “You
are to submit to chemicals tests as directed by a probation officer,” and modified the
second proposed condition to read: “You’re not to use, abuse or be under the influence
of alcohol or drugs.” The court asked defendant whether he objected to the proposed
modifications, to which defendant responded, “Yes. I got my cann[a]bis card.” When
the court asked defendant to “deliver the card,” he said he did not have it with him. The
court then stated, “I want you to deliver it to the probation department. As far as I’m
concerned I don’t recognize those cards. This court does not—to me that’s still a drug.
And you’re not to use it or abuse it or be under the influence of it, because if you do,
you’re going to be in violation of probation.” The court then asked defendant whether he
accepted the new conditions of probation, and defendant said, “No.”
       The court set the matter for a further hearing on July 10, 2013; referred defendant
to the public defender’s office to obtain counsel; and ordered defendant to give his
cannabis card to his probation officer within three days.
       Defendant appeared for the July 10, 2013 hearing with counsel. Defense counsel
advised the court (Judge Thomas Hastings, retired) that defendant did not object to the
drug testing condition or the no-alcohol-or-drugs condition, “with the exception of
medical marijuana.” Defendant showed the court his medical marijuana card. Judge
Hastings examined the card and returned it to defendant, but no one made a record of the
information on the card. The prosecution objected to an exception for medical marijuana,
                                              6
stating: “I know Judge Navarro’s standard practice, he does not allow medical marijuana
use while on probation.” Judge Hastings stated that it was a “standard practice” for
“people who are under supervised O.R.” (own recognizance release) and “[t]hat if they
want to be on O.R., they not smoke medicinal marijuana. So I think it applies to a
probation.” Defense counsel argued that the proposed condition was not appropriate
under People v. Lent (1975) 15 Cal.3d 481 (Lent) because it did not have a rational
relationship to the underlying offense and that smoking medical marijuana would not lead
defendant to commit a crime. In response, the court observed that when defendant was
arrested for possession of methamphetamine while on probation, he admitted to smoking
marijuana that evening. The court then granted the probation officer’s request and
modified defendant’s probation to include the following conditions: (1) “the defendant
shall submit to chemical testing as directed by the probation officer” and (2) “the
defendant will not use or abuse alcohol or drugs, including medicinal marijuana.” The
court ordered defendant to surrender his medical marijuana card to the probation officer,
which he did.

                                       DISCUSSION

       Defendant contends the court abused its discretion when it imposed the probation
condition that prohibited him from using medical marijuana because it had no
relationship to his burglary offense and was not reasonably related to future criminality
since there was no evidence he was misusing his medical marijuana card. He argues that
the trial court abused its discretion when it imposed the condition “not because of specific
concerns related to [defendant’s] conduct, but simply because it was a ‘standard practice’
for all probationers.” Finally, he contends the condition is unconstitutionally vague and
overbroad because it does not contain an express knowledge requirement. Before
addressing these questions, we consider whether the issues presented are moot due to the
passage of time.
                                             7
   I. Mootness

       While processing this appeal in the fall of 2014, we noted that defendant’s original
probationary period should have ended in August 2014. We therefore asked the parties
for supplemental briefing on the following questions: “Since the three-year probationary
period should have ended on or about August 22, 2014, should this appeal be dismissed
as moot? Are there any prejudicial collateral consequences that a successful appeal could
ameliorate?”
       Defense counsel advised us that defendant’s probation had been extended to
August 22, 2015. He also argued: “[T]hese unlawful probation conditions are a standard
policy in this Superior Court. As such, it behooves this Court to give guidance to the
lower courts regarding what is, and is not, appropriate in terms of determining probation
conditions in this area.”
       Since defendant’s probation has been extended, the appeal is not moot and we will
proceed to the merits.

II. Propriety of Probation Condition Forbidding Use of Medical Marijuana

       A. Standard of Review

       “The sentencing court has broad discretion to determine whether an eligible
defendant is suitable for probation and, if so, under what conditions. [Citations.] The
primary goal of probation is to ensure ‘[t]he safety of the public . . . through the
enforcement of court-ordered conditions of probation. (Pen. Code, § 1202.7.)” (People
v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) “[T]he Legislature has
empowered the court, in making a probation determination, to impose any ‘reasonable
conditions, as it may determine are fitting and proper to the end that justice may be done,
that amends may be made to society for the breach of the law, for any injury done to any
person resulting from that breach, and generally and specifically for the reformation and
                                              8
rehabilitation of the probationer . . . .’ (Pen. Code, § 1203.1, subd. (j).)” (People v.
Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) We review the trial court’s exercise of its
discretion under the abuse of discretion standard. (Ibid.) “ ‘Accordingly, we ask whether
the trial court’s findings of fact are supported by substantial evidence, whether its rulings
of law are correct, and whether its application of the law to the facts was neither arbitrary
nor capricious.’ ” (People v. Clancey (2013) 56 Cal.4th 562, 578.)
       Under the traditional test from People v. Lent, 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, fn. omitted, overruled on other grounds in People v. Wheeler
(1992) 4 Cal.4th 284, 290-292.) “This test is conjunctive—all three prongs must be
satisfied before a reviewing court will invalidate a probation [condition]. [Citations.] As
such, even if a condition of probation has no relationship to the crime of which a
defendant was convicted and involves conduct that is not itself criminal, the condition is
valid as long as the condition is reasonably related to preventing future criminality.”
(Olguin, supra, 45 Cal.4th at pp. 379-380, citing Carbajal, supra, 10 Cal.4th at p. 1121.)
       Thus, “it is well settled that the trial court has the discretion to impose probation
conditions that prohibit even legal activity.”3 (People v. Brooks (2010) 182 Cal.App.4th
1348, 1352 (Brooks).) And, as we shall explain, several “appellate courts have affirmed
probation orders that prohibit the medical use of marijuana.” (People v. Hughes (2012)
202 Cal.App.4th 1473, 1480 (Hughes), citing, Brooks, supra, 182 Cal.App.4th 1348 and
other cases; see also People v. Leal (2012) 210 Cal.App.4th 829 (Leal).)


       3
         Interestingly, defendant did not object to the imposition of the no-alcohol
condition in the trial court. Nor does he challenge it on appeal. Defendant was 21 when
the condition was imposed and could therefore legally consume alcohol.

                                              9
       B. Case Law Considering Probation Conditions Prohibiting Medical
          Marijuana Use

       In 1996, the electorate passed Proposition 215, the Compassionate Use Act
(CUA), which was codified as Health and Safety Code section 11362.5 (all further
undesignated statutory references are to this code). (Brooks, supra, 182 Cal.App.4th at
p. 1350.) Subdivision (d) of section 11362.5 provides that “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 caregiver, who possesses or cultivates
marijuana for the personal medical purposes of the patient upon the written or oral
recommendation or approval of a physician.”
       In People v. Bianco (2001) 93 Cal.App.4th 748, 751-752 (Bianco), the Third
District Court of Appeal held that section 11362.5 is not a defense to a violation of a
condition of probation that directs the defendant to “obey all laws.” The court reasoned
that marijuana use, even with a doctor’s recommendation, is a violation of federal law.
(Id. at p. 753.) The court also stated that, federal law aside, a probation condition can
prohibit otherwise lawful conduct that is reasonably related to the defendant’s offense.
(Id. at pp. 753-754.)
       In People v. Mower (2002) 28 Cal.4th 457, the California Supreme Court held that
the defendant has the burden of proving a CUA defense to charges of possession and
cultivation of marijuana, but that the defendant is only required to raise a reasonable
doubt. (Id. at pp. 464, 476-483.) The court also stated, “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 (Tilehkooh), the
Third District Court of Appeal revisited its decision in Bianco. In view of Mower, the
Tilehkooh court held that Bianco was wrong in stating that possession of marijuana under

                                             10
the CUA violated the defendant’s probation because it violated federal law. The court
also held that a criminal defendant may assert the CUA as a defense to the criminal
sanction of probation revocation, but it did not sanction a CUA defense where there is a
claim that the defendant’s conduct “endangered others or that [the defendant] diverted
marijuana for non[-]medical [uses].” (Tilehkooh, at pp. 1437, 1440.)
       In 2003, the Legislature enacted the Medical Marijuana Program (MMP)
(§ 11362.7 et seq.), which was designed to clarify the CUA and facilitate its enforcement.
(Leal, supra, 210 Cal.App.4th at p. 838.) “At the heart of the MMP is a voluntary
‘identification card’ scheme” that, in addition to the CUA’s protection against conviction
for marijuana possession and cultivation offenses, allows medical marijuana patients and
their caregivers to avoid unnecessary arrest. (People v. Kelly (2010) 47 Cal.4th 1008,
1014, (Kelly), fns. omitted.) The MMP also establishes a procedure whereby a
probationer can request permission to possess or cultivate medical marijuana while on
probation. Section 11362.795, subdivision (a) provides: “(1) Any criminal defendant
who is eligible to use marijuana pursuant to [the CUA] 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.”
       After the MMP was enacted , the First District Court of Appeal addressed the
propriety of a probation condition prohibiting the use of medical marijuana in People v.
Moret (2009) 180 Cal.App.4th 839 (Moret). It was a fractured decision. The lead
                                            11
opinion upheld a probation condition prohibiting medical marijuana use on the grounds
of waiver, reasonableness under the Lent test, and the implication in section 11362.795,
subdivision (a) that the trial court retained the discretion to prohibit the use of marijuana
during probation despite the CUA. (Moret, at pp. 844-846, 850, 853.) The concurring
justice relied solely on the ground of waiver. (Id. at pp. 857-858 (conc. opn. of Richman,
J.).) The dissenting justice wrote there was no voluntary waiver, and the record did not
support imposition of the condition. (Id. at pp. 860-862 (dis. opn. of Kline, P.J.).)
       After Moret, the California Supreme Court held in Kelly that section 11362.77—
which sets specific quantity limitations for possession or cultivation of medical
marijuana—impermissibly amends the CUA to the extent it burdens a defense under the
CUA to a charge of possessing or cultivating marijuana. (Kelly, supra, 47 Cal.4th at p.
1012.) But nothing in Kelly invalidated the probation provisions of section 11362.795,
subdivision (a). (Brooks, supra, 182 Cal.App.4th at p. 1352.)
       Two other courts have considered probation conditions that prohibit the use of
medical marijuana. The Second and Fourth Districts both held that Lent and section
11362.795, subdivision (a) supported the conclusion that courts have the discretion to
prohibit the use of medical marijuana as a condition of probation. (Brooks, supra,
182 Cal.App.4th at p. 1352; Hughes, supra, 202 Cal.App.4th at pp. 1480-1481.) Both
cases held that probation conditions that barred medical marijuana use were reasonably
related to the underlying offenses and to future criminality because the defendants in both
cases had attempted to mask marijuana-related illegal activity as CUA-protected activity.
(Brooks, at p. 1353 [“The condition removes any temptation to try to hide criminal
possession of marijuana behind the CUA again”]; Hughes, at p. 1481.) Hughes, however,
held that the trial court had erred, albeit harmlessly, by “focus[ing] on whether defendant
had a need to use medical marijuana . . . [and] question[ing] the palliative efficacy of
marijuana and . . . [whether] marijuana is . . . the only medication that could resolve [the]
defendant’s ailments and pain . . . . The trial court’s concerns effectively question[ed] the
                                              12
wisdom of allowing marijuana to be used for medicinal purposes. That issue was
resolved in 1996 when voters of this state passed the CUA.” (Hughes, at p. 1481.)
Reviewing Bianco, Mower, and Tilehkooh, the Brooks court explained that those 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.’ [Citation.] Neither
case holds that the trial court cannot ever impose a probation condition barring the use of
medical marijuana.” (Brooks, supra, 182 Cal.App.4th at p. 1351.)
       Most recently, in Leal, the same division of the First District Court of Appeal that
decided Moret reached a unanimous decision that set forth a three-step framework for
evaluating probation conditions that prohibit the use of medical marijuana. “First, we
examine the validity of any CUA authorization; second, we apply the threshold Lent test
for interfering with such authorization; and third, we consider competing policies
governing the exercise of discretion to restrict CUA use.” (Leal, supra, 210 Cal.App.4th
at p. 837.) The three-step Leal test for cases involving the use of medical marijuana thus
incorporates and expands on the Lent test.
       Both parties applied the Leal test to their legal analyses. We shall therefore
assume, without deciding, that the Leal test applies in this case.

       C. Step One Under Leal—Validity of Medical Marijuana Authorization

       Regarding step one—the validity of the defendant’s medical marijuana
authorization—the Leal court observed: “Not surprisingly, it seems that the enhanced
protection from arrest [under the MMP] has proven irresistible to those illegally
trafficking marijuana, for if there is even rough accuracy in the anecdotal estimate by the
arresting detective in this case—that nearly 90 percent of those arrested for marijuana
sales possess either a CUA recommendation or a card—then there is obviously
widespread abuse of the CUA and the MMP identification card scheme by illicit sellers
of marijuana. Ninety percent far exceeds the proportion of legitimate medical marijuana
                                             13
users one would expect to find in the populace at large. For this and other reasons, it is
impossible for us not to recognize that many citizens, judges undoubtedly among them,
believe the CUA has become a charade enabling the use of marijuana much more
commonly for recreational than for genuine medical uses. This widespread perception
tests the judicial process. On the one hand, judges cannot, without danger to the integrity
of their own enterprise, permit this attitude to undermine judicial fidelity to the right the
CUA creates, which after all expresses the will of the people. But neither, on the other
hand, does it mean courts may condone, even tacitly, conduct not clearly protected by the
CUA.” (Leal, supra, 210 Cal.App.4th at pp. 838-839, fn. omitted, original italics.) “The
ready availability of marijuana cards is easily confirmed by a random perusal of cannabis
Web sites advertising medical recommendations and identification cards as obtainable in
an hour or less, for a modest price, with online appointments taken and walk-ins often
welcome, and with online verification services provided. [Citations.]” (Id. at p. 839,
fn. 2.)
          A medical marijuana “card that reveals false information, fraud, or other violations
of the CUA may certainly be challenged. [Citations.] But if a prosecutor determines
from the card, and its identifying photo and user identification number, that the card is
issued to the bearer, is not expired, and is valid according to county health department
records (§ 11362.735, subds. (a)(1)-(5)), further inquiry can be limited at the step-one
stage. Case law prevents a court from second-guessing the wisdom of voters in defining
allowed uses of marijuana under CUA criteria [citations], which are broad enough to
include arthritis or chronic pain (§ 11362.5, subd. (b)(1)(A)) and, under the ‘somewhat
broader’ provisions of the MMP [citation], persistent muscle spasms and severe nausea
(§ 11362.7, subds. (h)(9) & (h)(11)).” (Leal, supra, 210 Cal.App.4th at p. 839, citing
Hughes, supra, 202 Cal.App.4th at p. 1481 and other cases.)
          The defendant in Leal was convicted of possession of marijuana for sale in two
separate cases. One of the convictions included an arming enhancement. (Leal, supra,
                                               14
210 Cal.App.4th at pp. 833-835.) The defendant claimed he used medical marijuana for
hypertension and a post traumatic stress disorder, but the record suggested that he used
his medical marijuana card “merely as a front for recreational uses or illicit sales
obviously not permitted by the CUA or MMP.” (Id. at pp. 836, 840.) Despite “ample
reason to question” the defendant’s claim of valid medical marijuana use under the CUA,
“the prosecutor made no discernible effort to challenge the validity of the card [the
defendant] produced.” (Leal, at p. 839.) The court “therefore presume[d] that validity
and proceed[ed] . . . to the step-two question of whether a nexus to his crimes or future
criminality existed, under the Lent test, to allow judicial interference with [the
defendant’s] lawful use of medical marijuana.” (Leal, at p. 840.)
       Even though the hearing in this case took place more than eight months after Leal
was filed, the prosecution made no effort to challenge the validity of defendant’s medical
marijuana card. Defendant showed his card to the court. But the card is not in the record
and no one made a record of which physician prescribed medical marijuana, when it was
prescribed, how long defendant had used medical marijuana, whether his card had
expired, or even what medical conditions it was prescribed for. We shall therefore
presume the card was valid and proceed to the step two inquiry under Leal. (Leal, supra,
210 Cal.App.4th at p. 840.)

       D. Step Two Under Leal—the Lent Test

       Step 2 under Leal requires us to apply the traditional Lent test for determining the
validity of a condition of probation. Considering the first prong under the Lent test—
whether the prohibited conduct is “ ‘itself criminal’ ”—“it is settled that medical use of
marijuana as authorized by the CUA, while still criminal under federal law [citation], is
not conduct that is itself criminal for purposes of the Lent test.” (Leal, supra,
210 Cal.App.4th at pp. 840-841, citing Hughes, supra, 202 Cal.App.4th at p. 1481 and
other cases.) The issues are therefore whether the circumstances showed a sufficient
                                             15
nexus (1) to defendant’s offenses or (2) to future criminality. Under the three-part Lent
test, medical marijuana “use may be prohibited if a sufficient relationship appears under
one or both of [these] elements.” (Leal, supra, at p. 841, citing Olguin, supra, 45 Cal.4th
at pp. 379-380.)
       The defendant in Hughes, for example, was found guilty of marijuana-related
offenses after police officers found 38 marijuana plants in his truck during a traffic stop.
The defendant had a “physician’s statement” for medical marijuana to treat “pain” and
told the officers that he was taking the plants to a marijuana cooperative to trade them for
finished marijuana that he would use for his medical needs. But sales call sheets and
other circumstances supported the conclusion that he possessed the marijuana for sale.
(Hughes, supra, 202 Cal.App.4th at pp. 1475-1476.) Finding no abuse of discretion, the
Hughes court reasoned that a probation condition prohibiting possession of marijuana,
“even for medical use,” had “a relationship to the crimes of which defendant was
convicted, namely cultivating marijuana, possessing marijuana for sale, and transporting
marijuana. In addition, the probation term forbids conduct that is reasonably related to
future criminality in that defendant purported to rely on the CUA to justify his possession
of the marijuana plants he was transporting to sell in Los Angeles. Consequently, [the
court] could prohibit such possession as a condition of [the] defendant’s probation.” (Id.
at p. 1481.)
       Similarly, the defendant in Leal, who was convicted of possessing marijuana for
sale, “tried to hide behind his medical authorization to screen his illegal sales activities.
. . . In a shifting series of explanations, he told the arresting officers that one bag [out of
four] was for his personal use, that he had the marijuana for his mother’s cancer, and
then, in an evident effort to account for the 72.6 grams, that he smoked an ‘eighth’ every
hour and a half. [His explanations were] accompanied by admissions that some of the
drug was for ‘business’ and that he ‘loves to smoke “weed,” ’ but it was attempted
deception just the same. The connection to future criminality was, . . . , that he was using
                                               16
the CUA as a front for illegal sales, even if some of what he possessed might have been
for his own medical use. If allowed to continue medical use, he would have an incentive
to keep masking illegal activity with his CUA status, . . . .” (Leal, supra,
210 Cal.App.4th at pp. 841-842.) The court concluded that the defendant “was misusing
[his] medical authorization in hopes of escaping arrest and prosecution.” (Id. at p. 842.)
       Defendant contends that neither element of the Lent test is shown here. We agree
that there is no connection between the probation condition at issue and defendant’s
underlying burglary offense. Unlike the defendants in Hughes and Leal, who were
convicted of drug-related offenses, defendant was convicted of first degree burglary and
there was no evidence of any connection between the burglary and marijuana use. But, in
our view, there was sufficient evidence that the condition was reasonably related to future
criminality.
       According to the bench warrant issued in February 2011, defendant—who was
18 years old at the time—had a tattoo of a marijuana leaf on his left leg. Two years later,
in February 2013, during the police investigation in the stolen vehicle case, the officer
noted the plain odor of marijuana emanating from a car defendant had just been riding in.
Defendant did not produce a medical marijuana card or tell the officer he was using
marijuana for medical purposes. And although defendant was not arrested in the
incident, his companion was arrested for possession of stolen property and a burglary
tool. Moreover, defendant was evasive with the officer, saying he could not remember
his address. There is nothing in the record to suggest that when the probation officer
asked defendant about this incident, defendant told him he had a medical marijuana card
or that he used marijuana for medicinal purposes. Instead, defendant said he smoked
marijuana with his friends that day to celebrate the birth of his child. That was clearly an
illegal, recreational use of marijuana, not a medicinal use.
       In March 2013, when defendant was picked up after the vandalism and burglary of
a school, he was arrested for possession of methamphetamine. There was Sureño graffiti
                                             17
at the school and defendant was with an admitted Sureño gang member. A back pack
that contained a marijuana cigarette was found at the burglary scene and defendant told
the officer he had smoked marijuana earlier that evening. Nothing in the record suggests
defendant showed the police officer a medical marijuana card or said he had used
marijuana for medical purposes.
       The first time defendant mentioned having a medical marijuana card was at the
July 1, 2013 hearing on the request to modify his probation, more than three months after
his last police contact. When the court questioned defendant on that occasion, defendant
did not say why he had obtained a medical marijuana card or state that he needed medical
marijuana for any particular medical condition. By that time, the probation officer had
admonished defendant twice that his use of illicit substances and poor decision-making
could result in the revocation of his probation.
       In summary, in 2013, while on probation, defendant was involved in two criminal
investigations, one of which resulted in his arrest for possession of methamphetamine.
Both times, he had used marijuana shortly before the police contact. Defendant admitted
the recreational use of marijuana the first time and there was no evidence or claim that he
used marijuana for medical purposes the second time. And when the court imposed the
no-medical-marijuana condition, it expressed concern about defendant’s future
criminality, observing that defendant admitted marijuana use when he was arrested for
possessing methamphetamine. As in Hughes and Leal, the record suggests defendant
obtained a medical marijuana card to mask his illegal use of the drug and to avoid
revocation of his probation due to continued illegal marijuana use. We therefore
conclude that since the probation condition at issue does not require or forbid conduct
that is “not reasonably related to future criminality,” it is valid under Lent. (Lent, supra,
15 Cal.3d at p. 486 [probation condition is valid unless it . . . (3) requires or forbids
conduct which is “not reasonably related to future criminality”].) We therefore proceed
to the third step of the Leal test.
                                              18
       E. Step Three Under Leal—Balancing the Needs

       Leal reasoned: “Finding discretion under the Lent test to interfere with a
probationer’s CUA use of marijuana, however, does not mean that the court must impose
an interfering condition, for discretionary action is, by definition, something permitted,
not required.” (Leal, supra, 210 Cal.App.4th at p. 843, original italics.) “The step-three
exercise of discretion is vital in limiting medical use of marijuana, for it entails a unique
balance of competing public policies. On one hand, the step-one conclusion that a
defendant has CUA authorization implicates a voter-compelled policy that qualified
patients be allowed to alleviate medical problems through the use of marijuana. On the
other hand, the step-two conclusion that the relationship of that lawful use to the crimes
the defendant committed, or his or her future criminality, raises a competing policy
consideration: the need to rehabilitate the defendant and protect the public during his or
her release on probation. The resolution of these competing policies necessarily requires
weighing the needs of one against the other before deciding whether and how much to
limit the lawful conduct.” (Id. at p. 844.)
       Defendant argues that we need not engage in step three balancing under Leal,
since the no-medical-marijuana condition is not valid under Lent. Since we disagree with
that conclusion, we shall proceed with step three of the analysis.
       Step three balancing “will vary widely from case to case. In an extreme case of
need for medical marijuana, for example, the drug might be an effective and least-
harmful way to alleviate debilitating suffering from end-stage pancreatic cancer.
[Citation.] . . . It is also hard to imagine that a probation order banning a person so
afflicted from using medical marijuana pursuant to the CUA would not constitute an
abuse of discretion despite a Lent-based nexus to the selling offense, for example, where
there was little or no further threat to society. Far more commonly, of course, the
rehabilitative/protective need could outweigh a lesser medical need, or one that could be

                                              19
efficaciously met by alternative means.” (Leal, supra, 210 Cal.App.4th at p. 843.) “We
stress that this third step balancing of competing needs does not allow a court to question
the wisdom of voters or the validity of an unchallenged card or the underlying medical
authorization. The 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.” (Ibid.)
       The step-three balancing is not difficult in this case, since there was no evidence
regarding defendant’s medical need for marijuana other than the fact that he had a
medical marijuana card. “That card meant only that [defendant] met a minimal threshold,
in a recommending physician’s view, of getting some unquantified ‘benefit from the use
of marijuana’ (§ 11362.5, subd. (b)(1)(A)) to help alleviate conditions within the broad
sweep of the CUA and MMP (ibid.; § 11362.7, subds. (g)-(h)), which did not require
[defendant] to suffer a serious illness [citation].” (Leal, supra, 210 Cal.App.4th at
p. 845.) Unlike other cases, there is no record of what medical condition could be
alleviated by defendant’s use of medical marijuana. Defendant did not present any
medical reports, physician or lay testimony, or even tell the court why he needed medical
marijuana. The record does not “shed light on the severity of [his] ailments, the efficacy
of treating them with medical marijuana, or the feasibility and efficacy of any alternative
treatments that may be available.” (Ibid.) Defendant was the only party able to produce
evidence of the medical benefits marijuana provided him and any alternative remedies he
may have tried, yet he offered no such evidence. (Ibid.) And the fact that he (1) had a
marijuana leaf tattoo on his leg more than two years before he mentioned CUA use,
(2) had used marijuana shortly before both contacts with police, (3) admitted that he
smoked marijuana to celebrate the birth of his child, and (4) only requested that he be
allowed to use medical marijuana after he was caught using marijuana for non-medicinal
                                             20
purposes, creates substantial doubt that defendant’s use of marijuana was genuinely
“medical.” (Ibid.) Defendant therefore cannot demonstrate that the court abused its
discretion under step three of the Leal test.
       Defendant argues that the trial court abused its discretion when it imposed the
condition “not because of specific concerns related to [defendant’s] conduct, but simply
because it was a ‘standard practice’ for all probationers.” Indeed, Judge Navarro said,
“As far as I’m concerned I don’t recognize those cards.” And Judge Hastings said it was
“standard practice” for “people who are under supervised O.R.” that “they not smoke
medicinal marijuana. So I think it applies to a probation.” Case law indicates that trial
courts cannot establish a blanket policy prohibiting the use of medical marijuana as a
condition of probation. Instead, each case must be evaluated on an individual, case-by-
case basis. (See Leal, supra, 210 Cal.App.4th at pp. 837-845, 843 [step three balancing
“will vary widely from case to case”]; Hughes, supra, 202 Cal.App.4th at pp. 1479-1481;
Brooks, supra, 182 Cal.App.4th at pp. 1352-1353.)
       Despite statements suggesting the court had a standard practice of prohibiting
medical marijuana use while on probation, the court scheduled a hearing on the matter,
gave defendant notice of the hearing, “refer[red him] to the public defender’s office” to
see if he “qualif[ied] for their services,” and conducted a hearing on the issue during
which defendant failed to provide any support for his claim that he needed to smoke
marijuana for medicinal purposes. Thus, the record shows the court was open to
considering defendant’s objection to the no-medical-marijuana condition. Furthermore,
when the court imposed the no-medical-marijuana condition, the judge commented on the
link between defendant’s marijuana use and future criminality. And finally, we review
the trial court’s decision, not its reasoning, and will affirm a judgment or order that
reached the correct result, “ ‘regardless of the considerations [that] may have moved the
trial court to its conclusion.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 976.) As we have
already explained, the condition was valid under the Leal test. Based on the record in this
                                                21
case, the trial court did not abuse its discretion when it imposed the no-medical-marijuana
condition of probation.
       Since the no-medical-marijuana condition imposed met the requirements of Leal,
we will affirm the order modifying defendant’s conditions of probation. However, as we
shall explain in the next section, the condition must be modified to include a scienter
requirement.

   III.   Vagueness and Overbreadth

       Defendant argues that the probation condition that provides that he “will not use or
abuse alcohol or drugs, including medical marijuana” is unconstitutionally vague and
overbroad because it does not include an express knowledge requirement. The Attorney
General agrees and urges us to modify the condition to include an express knowledge
requirement.
       “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) “A probation condition ‘must
be sufficiently precise for the probationer to know what is required of him [or her], and
for the court to determine whether the condition has been violated,’ if it is to withstand a
challenge on the ground of vagueness.” (Ibid.) That is, the defendant must know in
advance when he or she may be in violation of the condition.
       In People v. Rodriguez (2013) 222 Cal.App.4th 578, 582, this court considered
“whether various probation conditions [were] unconstitutionally vague and overbroad
without an explicit scienter requirement.” The probation conditions at issue included
“condition 8,” which prohibited the use or possession of “alcohol, intoxicants, narcotics,
or other controlled substances without the prescription of a physician . . . .” (Id. at
pp. 583, 592.) This court held: “To the extent condition 8 reinforces defendant’s
obligations under the California Uniform Controlled Substances Act, the same
knowledge element which has been found to be implicit in those statutes is reasonably
                                              22
implicit in the condition.” (Id. at p. 593.) But the court also recognized “that the
proscriptions in condition 8 are not limited to substances regulated by statute, but extend
to alcohol and the generic ‘intoxicants.’ Because the latter category is susceptible of
different interpretations, which may include common items such as adhesives, bath salts,
mouthwash, and over-the-counter medicines, the addition of an express knowledge
requirement will eliminate any potential for vagueness or overbreadth in applying the
condition.” (Id. at p. 594.) The court observed: “[I]t is no crime to ingest a drug
involuntarily, for example, if someone secretly spiked the punch at a party.” (Id. at
p. 593.)
       Courts often order modification of probation conditions to incorporate a scienter
requirement where a probationer could unknowingly engage in the prohibited activity.
(People v. Moses (2011) 199 Cal.App.4th 374 [modifying probation conditions to include
both actual and constructive knowledge requirements]; see also People v. Turner (2007)
155 Cal.App.4th 1432; In re Kacy S. (1998) 68 Cal.App.4th 704, 713.) Since the
probation condition at issue in this case prohibits both alcohol and medical marijuana
use—which are not illegal—and it is possible that defendant might unknowingly ingest
something that has been “laced with” marijuana or “spiked with” alcohol, the addition of
an express scienter requirement will eliminate any potential for vagueness or overbreadth.
Accordingly, we will accept the Attorney General’s concession and order the condition
modified to incorporate an express knowledge requirement.
       The condition at issue also prohibits the use of “drugs.” The word “drugs” is
broad enough to prohibit the use of over-the-counter medication, as well as drugs
prescribed by defendant’s physician, a result the trial court surely did not intend. We will
therefore modify the condition to prohibit the use of “illegal drugs.” Finally, we will
change the word “medicinal” to “medical” so that the condition tracks the language used
in the statutes. (See e.g., §§ 11362.5, 11362.79, 11362.795.)


                                             23
                                      DISPOSITION

      The probation condition at issue is modified as follows: “the defendant will not
use or abuse any substance that he knows or should know contains alcohol or illegal
drugs, including medical marijuana.” As modified, the July 10, 2013 order modifying the
conditions of defendant’s probation is affirmed.




                                           24
                      _______________________________
                      Márquez, J.




WE CONCUR:




_____________________________________________
 Bamattre-Manoukian, Acting P.J.




______________________________
 Grover, J.
