Filed 6/10/13 P. v. Nunez CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
v.                                                                   A135803
JOSE L. NUNEZ,
                                                                     (Sonoma County
         Defendant and Appellant.                                    Super. Ct. No. SCR-601471)

         Defendant entered a plea of no contest to one count of sale of methamphetamine
(Health & Saf. Code, § 11379, subd. (a)), and one count of possession for sale of
methamphetamine (Health & Saf. Code, § 11378).1 In accordance with the plea
agreement, imposition of sentence was suspended and defendant was placed on probation
for three years, on the conditions, among others, that he comply with a drug treatment
program, and refrain from use of medical marijuana if so directed by the program. He
argues in this appeal that the proscription against his use of medical marijuana is invalid.
We conclude that under the circumstances presented the trial court did not abuse its
discretion by ordering defendant to abstain from marijuana use as a condition of his
probation, and affirm the judgment.




1
  As part of the negotiated disposition of the case, other charges of possession of
methamphetamine, sale of methamphetamine, and possession of methamphetamine for sale were
dismissed, as was an allegation of a prior strike conviction. All further statutory references are to
the Health and Safety Code.
                                  STATEMENT OF FACTS2
       On January 31, 2011, an undercover detective for the Santa Rosa Police
Department arranged by telephone to purchase methamphetamine from defendant. Later
that day, defendant and the detective met in the parking lot of the Santa Rosa department
store, where defendant sold the detective a 3.35-gram package of methamphetamine for
$240. A second purchase of a package of 1.62 grams of methamphetamine from
defendant was initiated by an undercover detective for the Santa Rosa Police Department,
and completed on the afternoon of February 3, 2011. A subsequent search of defendant‟s
residence and vehicle resulted in seizure of additional methamphetamine, along with
baggies and other items used to package methamphetamine.
       Following defendant‟s entry of his no contest plea, at the sentencing hearing on
February 15, 2012, the court placed defendant on formal probation for 36 months upon
the conditions that he obey all laws, complete all counseling programs, and not “possess
or use any controlled substances or associated paraphernalia without a valid
prescription.” Defendant advised the court that he intended to retain his “215” medical
marijuana card prescribed to him for his “back problem.” The court directed defendant to
carry a “valid 215” medical marijuana card and “show proof of that” to his probation
officer.
       On May 4, 2012, defendant appeared at a hearing to inform the court that the drug
counseling program in which the probation department had placed him, the Day
Reporting Center, prohibited use of marijuana, including medical marijuana. Defendant
requested placement in a “different program,” or a court order allowing him to use
medical marijuana “while he‟s in the program.” The court set an additional hearing to
grant defendant the opportunity to present “medical proof” or other witnesses to establish
that medical marijuana is the only alternative to “deal with his pain.” The probation
department was also asked to present an “oral report” at the hearing on defendant‟s use of
medical marijuana and “participation in the drug program.”

2
 In light of the no contest plea we will recite the facts pertinent to the underlying offenses only
as necessary to the issues presented on appeal.

                                                 2
       At the subsequent hearing defense counsel offered to the court “a note” of
unexplained content from defendant‟s doctor, and stated that defendant had been
provided with “medication for pain, which is a narcotic, Norco or Vicodin,” in addition to
his medical marijuana. The drug counseling program disallowed defendant‟s medical
marijuana use, but not his use of prescription Norco. Defense counsel responded to an
inquiry from the court by acknowledging that pharmaceutical alternatives such as Norco
exist to relieve defendant‟s pain, but asserted that defendant “has bad reactions to Norco
and would prefer to use the marijuana in place of the Norco.” The defense was not
prepared to present medical testimony that defendant had no alternative “except smoke
marijuana.” The probation department represented to the court that the Day Reporting
Center was the counseling program defendant needed to succeed, in light of his history
and commitment offenses, and all those who participate in that program are not permitted
to smoke marijuana.
       The court exercised its discretion in favor of ordering defendant to follow the
directives of the probation department and abstain from use of medical marijuana while
in a drug counseling program. This appeal followed.
                                      DISCUSSION
       Defendant challenges the trial court‟s decision to disallow his lawful use of
medical marijuana while on probation. He maintains that use of “medical marijuana
obtained pursuant to a physician‟s recommendation” must be treated no differently than
“any other lawfully prescribed medication” for back pain relief, “such as Norco.” He
claims the court therefore erred by requiring the defense to present “medical evidence”
that “there is absolutely nothing else he can do except smoke marijuana” to alleviate his
pain. Defendant asserts that the court abused its discretion by effectively imposing a
probation condition that proscribes his medical marijuana use.
       We of course have no quarrel with the proposition urged by defendant that his
medical marijuana use is not unlawful, although existing law creates a limited immunity
to certain crimes rather than a blanket right to lawfully use marijuana for medical
purposes. (People v. Mower (2002) 28 Cal.4th 457, 470; Browne v. County of Tehama

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(2013) 213 Cal.App.4th 704, 711; People v. Urziceanu (2005) 132 Cal.App.4th 747,
774.) Marijuana remains a schedule I controlled substance in California. (Ross v.
RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 923.) “Both federal and
California laws generally prohibit the use, possession, cultivation, transportation, and
furnishing of marijuana. However, California statutes, the Compassionate Use Act of
1996 (CUA; Health & Saf. Code, § 11362.5, added by initiative, Prop. 215, as approved
by voters, Gen. Elec. (Nov. 5, 1996)) and the more recent Medical Marijuana Program
(MMP; § 11362.7 et seq., added by Stats. 2003, ch. 875, § 2, p. 6424), have removed
certain state law obstacles from the ability of qualified patients to obtain and use
marijuana for legitimate medical purposes. Among other things, these statutes exempt
the „collective[] or cooperative[] . . . cultiva[tion]‟ of medical marijuana by qualified
patients and their designated caregivers from prosecution or abatement under specified
state criminal and nuisance laws that would otherwise prohibit those activities.
(§ 11362.775.)” (City of Riverside v. Inland Empire Patients Health & Wellness Center,
Inc. (2013) 56 Cal.4th 729, 737, fn. omitted.)
       The MMP was enacted by the Legislature to clarify the scope of the CUA, and
“created a voluntary program for the issuance of identification cards to qualified patients
and primary caregivers. (§ 11362.71.) [¶] The MMP also „immunizes from prosecution
a range of conduct ancillary to the provision of medical marijuana to qualified patients.
[Citation.]‟ [Citation.] „Section 11362.765 accords qualified patients, primary
caregivers, and holders of valid identification cards, an affirmative defense to certain
enumerated penal sanctions that would otherwise apply to transporting, processing,
administering, or giving away marijuana to qualified persons for medical use.‟
[Citation.] The MMP provides that specified individuals „shall not be subject, on that
sole basis, to criminal liability‟ under sections 11357 (possession), 11358 (cultivation),
11359 (possession for sale), 11360 (transportation), 11366 (maintaining location for
selling, giving away or using controlled substances), 11366.5 (managing location for
manufacture or storage of controlled substance), or 11570 („drug den‟ abatement law).
(§ 11362.765, subd. (a), italics added.)” (Browne v. County of Tehama, supra, 213

                                              4
Cal.App.4th 704, 712–713.) In addition, section 11362.795, subdivision (a)(1),
specifically provides that, “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.”3
          The validity of probation conditions prohibiting use of otherwise authorized or
prescribed marijuana use have been considered and resolved by this court in recent
opinions. The governing test is not, as defendant suggests, simply “whether the
defendant‟s asserted right to use marijuana for medical purposes satisfies the CUA.”
(People v. Brooks (2010) 182 Cal.App.4th 1348, 1351–1352.) In People v. Leal (2012)
210 Cal.App.4th 829, 837 (Leal), another division of this court was presented with the
issue of “a probation condition banning marijuana possession and use, even as authorized
by the CUA,” where, as here, “circumstances suggest to a sentencing court that a
defendant would be rehabilitated” by a drug treatment plan that recommended no use or
possession of controlled substances, including marijuana. Following a comprehensive
examination of the validity of probation conditions in the context of authorized medical
marijuana use, the court adopted a “three-step inquiry into limiting CUA use of marijuana
by a probationer. First, we examine the validity of any CUA authorization; second, we
apply the threshold Lent test[4] for interfering with such authorization; and third, we
consider competing policies governing the exercise of discretion to restrict CUA use.”
(Ibid.)



3
  In full, section 11362.795, subdivision (a), reads: “(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.”
4
  People v. Lent (1975) 15 Cal.3d 481.

                                                5
       As in Leal, we have no reason based on the record before us to question the
legitimacy of defendant‟s medical marijuana card, so we proceed “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 defendant‟s lawful use of medical marijuana.
(Leal, supra, 210 Cal.App.4th 829, 840.)
       “A trial court has broad, but not unlimited, discretion in setting the terms and
conditions of probation. [Citations.] On appeal, we review the trial court‟s exercise of
that discretion under the abuse of discretion standard. „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.]‟
[Citations.] All three factors must be present for a condition of probation to be invalid.
[Citation.] Furthermore, „[i]nsofar as a probation condition serves the statutory purpose
of “reformation and rehabilitation of the probationer,” [citation] it necessarily follows
that such a condition is “reasonably related to future criminality” and thus may not be
held invalid whether or not it has any “relationship to the crime of which the offender
was convicted.” ‟ [Citation.] A trial court does not abuse its discretion unless its
determination is arbitrary or capricious or „ “ „exceeds the bounds of reason, all of the
circumstances being considered.‟ ” ‟ [Citation.]” (People v. Hughes (2012) 202
Cal.App.4th 1473, 1479 (Hughes).)
       The record provides ample support for a finding that a prohibition on defendant‟s
marijuana use, although not criminal for purposes of the Lent test, has a relationship to
the crimes of which he was convicted and is reasonably related to deterring future
criminality. He was convicted of drug offenses: one count of sale of methamphetamine,
and one count of possession for sale of methamphetamine. The information available to
the sentencing court reveals that defendant actively and repeatedly engaged in drug sales.
He has a lengthy, extensive history of theft and drug offenses, along with at least
intermittent drug use, and chronic alcohol abuse. He failed in a prior substance abuse
treatment plan, which resulted in revocation of his probation and imposition of a state

                                              6
prison term. The sentencing court was justified in finding that the residential treatment
program identified by the probation department was necessary to facilitate defendant‟s
successful completion of probation. The probation department indicated that the Day
Reporting Center counseling program, which was considered appropriate for defendant‟s
particular needs, did not permit marijuana use, which was also an entirely reasonable
restriction. On this record the Lent test is satisfied, and thus provides threshold discretion
for the court to interfere with authorized medical marijuana use. (Hughes, supra, 202
Cal.App.4th 1473, 1481.)
       That brings us to step three under Leal. Finding discretion under the Lent test to
interfere with a probationer‟s medical use of marijuana “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 829, 843.) Discretion is abused
when the determination is arbitrary or capricious, or exceeds the bounds of reason, all of
the circumstances being considered. (Ibid.) “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.)
“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.)


                                              7
       We find no abuse of the court‟s discretion here. With the record reflecting a need
to limit or prohibit marijuana use for defendant‟s rehabilitation and for protection of the
public, it was incumbent on him to show, as only he could, that he had a countervailing
need to use marijuana for medical purposes. We agree with defendant that he was not
required to definitively prove marijuana was the only existing treatment option for his
back pain, but in this case he did not offer evidence of an overriding medical need.5
(Leal, supra, 210 Cal.App.4th 829, 844.) Defendant expressed a preference, not a
necessity, for medical marijuana use as a pain medication. His counsel acknowledged
that medical alternatives were available to treat defendant‟s back ailment. No testimony
was presented that the nature and gravity of defendant‟s condition demanded marijuana
to effectively alleviate his symptoms. In fact, defendant had been treated with the
prescription pain medication Norco in the past, without any complaint of ineffectiveness.
Counsel merely asserted defendant‟s dislike for the “way Norco makes him feel.” While
we recognize that continued use of medical marijuana by probationers may in some cases
be critical, the evidence falls well below that level in the present case. The court‟s
finding that the balance of competing policies weighs in favor of restraining defendant‟s
use of medical marijuana while he participates in a counseling program was not an abuse
of discretion.6
       Accordingly, the judgment is affirmed.




5
  We review the trial court‟s ruling, not its reasoning. (People v. Geier (2007) 41 Cal.4th 555,
582.)
6
  We observe that the balance of competing policies may change if and when defendant
successfully completes the specified counseling program.

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                                         __________________________________
                                         Dondero, J.


We concur:


__________________________________
Margulies, Acting P. J.

__________________________________
Banke, J.




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