KLINE, P. J., Dissenting. The majority finds imposition of the challenged condition was not an abuse of discretion because appellant “specifically agreed [to the condition] at the December 17[, 2008] sentencing hearing” (maj. opn., ante, at p. 844), and because appellant had the burden of proving his eligibility to use medical marijuana and failed to sustain it (maj. opn., ante, at pp. 848-850). I respectfully disagree.
A sentencing judge has no authority to impose an unlawful condition of probation simply by extracting an “agreement” to it from the defendant. What makes this case unusual is that the trial court—which in appellant’s presence told his counsel that if appellant did not “agree” to the condition “he’s going to jail, so that’s his choice”—induced appellant’s “voluntary” acceptance of the condition precisely because of its awareness that the condition was unlawful and the court’s apparent assumption that appellant’s “agreement” would constitute an enforceable waiver of the right to challenge the lawfulness of the condition. This court’s endorsement of that assumption permits imposition of conditions of probation that are unrelated to the crime of which a defendant was convicted, forbids conduct that is not criminal, and requires conduct that has no relationship to a defendant’s future criminality. No modem California court has ever done such a thing, which is precedent shattering.
It is of course true that, as People v. Blakeman (1959) 170 Cal.App.2d 596 [339 P.2d 202] says, and Justice Richman reminds us, “ ‘ “a defendant may waive rights which exist for his own benefit . . .” ’ ” (conc, opn., ante, at p. 858), and defendants commonly do so as part of a negotiated disposition. But defendants do not commonly agree to conditions of probation that lack any legitimate penal function and are therefore invalid under the test set forth in People v. Lent (1975) 15 Cal.3d 481, 486 [124 Cal.Rptr. 905, 541 P.2d 545] (Lent). And in the few cases in which, as here, the defendant did submit to such an invalid condition after a timely objection, the waiver has never been used to bar a challenge to the lawfulness of the condition. Indeed, in People v. Blakeman, supra, 170 Cal.App.2d 596, the very case Justice Richman cites, [861]the defendant not only agreed to the banishment condition at issue but proposed it; the court did not, however, let that prevent it from striking the condition.
The majority’s analysis not only flies in the face of settled case law, but also subordinates the will of the people expressed in an initiative to the incompatible “opinion” of a sentencing judge. The Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5)1 (CUA), approved by the voters at the November 5, 1996 election as Proposition 215, was expressly intended to ensure that patients who comply with its terms “are not subject to criminal prosecution or sanction.” (§ 11362.5, subd. (b)(1)(B).) As a result of the enactment of the CUA, “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 . . . .” (People v. Mower (2002) 28 Cal.4th 457, 482 [122 Cal.Rptr.2d 326, 49 P.3d 1067] (Mower).) However, the CUA did more than simply decriminalize the use of medical marijuana. As has been pointed out, the Supreme Court’s opinion in Mower “accurately describes the effect of [the CUA] as creating a form of qualified immunity for the possession of marijuana in compliance with its terms. This immunity from criminal sanction takes the possession of marijuana and puts it in a special category apart from other legal acts, such as the use of alcohol, that can properly be made a condition of probation.” (People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1447 [7 Cal.Rptr.3d 226] (conc. opn. of Morrison, J.), italics added (Tilehkooh).) Because a condition of probation restricting the lawful use of medical marijuana cannot be deemed to serve a reformative or rehabilitative purpose (id. at pp. 1443-1445), as required by Penal Code section 1203.1, subdivision (j) (People v. Richards (1976) 17 Cal.3d 614, 619 [131 Cal.Rptr. 537, 552 P.2d 97], disapproved on other grounds in People v. Carbajal (1995) 10 Cal.4th 1114, 1126 [43 Cal.Rptr.2d 681, 899 P.2d 67]), the imposition of such a condition on a defendant whose use of marijuana satisfies the conditions of the CUA constitutes an abuse of discretion. If a defendant who timely objects can nevertheless be found to have waived the right to challenge the lawfulness of a condition of probation restricting his or her right to use medical marijuana recommended or approved by a physician because he or she accepted the condition in order to avoid incarceration, so too can most defendants easily be compelled to submit to a condition of probation restricting the use of any prescription drug, regardless whether it serves any reformative or rehabilitative purpose.
My colleagues’ supposition that appellant is ineligible to use medical marijuana is not justified by his asserted failure to produce evidence of his eligibility to do so. First of all, appellant did produce prima facie evidence of his eligibility to use medical marijuana, and neither the probation department [862]nor the prosecution provided reasonable cause to disbelieve that evidence. Nor did the court provide appellant notice of the need for and a reasonable opportunity to produce further evidence demonstrating that his use of marijuana satisfied the conditions of the CUA. In short, the only pertinent evidence presented in this case indicates appellant’s use of marijuana is protected by the CUA, no reliable evidence is to the contrary, and the trial court made no finding that appellant’s use of marijuana is not protected.
The dramatic changes in the law conjured by the majority are not only legally untenable and likely to cause considerable mischief, but wholly unnecessary. As I shall explain, if the trial court felt it had reasonable cause to believe appellant was not genuinely eligible to use medical marijuana, as he claimed and his medical marijuana card indicated, it had the ability to address the issue and decide it on the basis of evidence. It failed to do so, however. That failure, which seems to me to have been deliberate, cannot be cured by the tendentious speculations of this court.
L
The Relevant Facts
It is at the outset of analysis necessary to be clear about the facts. Restriction of appellant’s use of medical marijuana was first addressed by the court at the December 17, 2008 sentencing hearing. At the commencement of the hearing, the court stated that its “inclination at this point is to follow the presentence report.” The report recommended that probation be conditioned on a blanket prohibition of the use of drugs or alcohol. However, it also stated that appellant had an unexpired “Medical Cannabis Patient Identification Card” and said he used marijuana for migraine headaches. The report included a copy of the verified medical marijuana card appellant produced and offered no view as to its validity or invalidity or whether appellant’s use of marijuana was protected by the CUA.
When the court inquired whether defense counsel had any comments regarding the recommendations made in the report, counsel objected to the recommendation that probation be conditioned on blanket prohibition of the use of drugs or alcohol and requested that appellant be allowed to continue his lawful use of medical marijuana while on probation. The court responded: “Let me just cut you off right there. If I let him use marijuana, he’s going to jail with no ASP [alternative sentence program], so that’s his choice. Why don’t you talk to him about that.”
After a 15-minute break, counsel reported to the court that she had discussed the matter with appellant and he had made a decision. Before revealing the [863]decision, however, counsel stated that she wanted “to make a record . . . that we would object to any orders ordering him to surrender [his medical marijuana card], or not to consume marijuana, pursuant to [Tilehkooh]” in which the court determined that “[a] rehabilitative purpose is not served when the probation condition proscribes the lawful use of marijuana for medical purposes pursuant to [the CUA] any more than it is served by the lawful use of a prescription drug.” (Tilehkooh, supra, 113 Cal.App.4th at p. 1444.) The Court answered: “Counsel, I’m not going to order it. He is either going to stipulate to it, or I’m not going to do it.”
When counsel pointed out that the court was forcing appellant to “make a decision between his prescription medication, and, in essence, his freedom,” the court explained its “problem.” On the one hand, appellant “had a firearm, with a most implausible explanation for it, one that if he really expects the Court to believe this, he might as well ask me to believe in Santa Claus.” Refusing to “believe any part of this, T found it in the trash or in the bushes,’ ” the court stated that “[t]his was a gun that was stolen less than a year ago out of Vacaville. He’s got it. A handgun like this is good for one thing, and that’s shooting somebody. So if he’s in a situation where he needs to have a gun to shoot somebody, he’s got real problems going on in his life, and smoking dope isn’t helping him. That’s the bottom line.”
The court emphasized its willingness to grant appellant probation, because “he has . . . almost no criminal history. He’s a young man. Obviously, he’s got potential, but he keeps smoking dope and carrying firearms, and he’s going to have a lot of problems in this life, if he lives very long.” The court made clear its “opinion” that “smoking dope isn’t going to help [appellant]” and that “[e]very person I have ever seen, that sits around smoking dope, goes nowhere. You can’t function when you are loaded, and you know, there is a good reason why they call it dope.”
The court also expressed the view that “what’s really going on here with this medical marijuana for a headache” was “gam[ing] the system,” suggesting judicial disbelief appellant genuinely suffered any affliction for which medical marijuana provided relief. Apparently referring to Tilehkooh, supra, 113 Cal.App.4th 1443, the case cited by defense counsel, the court agreed that there were “some appellate cases” allowing persons like appellant to obtain the right to use medical marijuana by “gam[ing] the system,” but that if appellant insisted on doing so, “I’m going to have second thoughts about his judgment, and that suggests to the Court that he’s not very serious about what has occurred or changing things.” At that point, defense counsel stated that appellant would surrender his medical marijuana identification card because, “if he is taken into custody, he will lose ... his aid and his medical benefits, as well as not be able to enroll in school.”
[864]Desirous of hearing directly from appellant, the trial judge then engaged in the following colloquy with appellant:
“THE COURT: Is that what you wish to do, Mr. Moret? Do you wish to agree not to use marijuana while you are on probation?
“THE DEFENDANT: Yes.
“THE COURT: Are you willing to agree not to use marijuana? [][] Do you understand that I can’t order you not to use marijuana? Do you understand that?
“THE DEFENDANT: No, I didn’t know that, but—
“THE COURT: Well, your attorney is well-aware of it, and that’s what the appellate courts have said. If some doctor says that its okay for you to smoke dope, then regardless of what you are doing in your personal life, the crimes that you are committing, I’ll tell you one thing, that you are not going to smoke dope in jail, and you are not going to smoke dope in state prison, if that’s where you end up. They won’t allow it there.
“MS. GROGAN [defense counsel]: Your Honor, may I have one moment?
“THE COURT: Yes.
“MS. GROGAN: Your Honor, he understands what he is agreeing to. [][] Mr. Moret, do you agree to surrender your medical marijuana card and to not smoke marijuana while you are on probation?
“THE DEFENDANT: Yes.
“THE COURT: Okay. I’ll accept that.” (Italics added.)
Without determining that appellant’s use of marijuana was unprotected by the CUA, the court ordered only that appellant “not use marijuana while you are on probation.” The court expressed no interest in the validity of appellant’s medical marijuana card and never asked him to show that he genuinely suffered migraine headaches for which medical marijuana had been recommended or approved by a physician. State law directs that a state or local law enforcement agency or officer “shall not refuse to accept an identification card,” unless the agency or officer “has reasonable cause to believe that the information contained in the card is false or fraudulent, or the card is being used fraudulently.” (§ 11362.78.) As I have said, the probation department [865]provided no such cause and, so far as the record shows, neither has any other law enforcement agency or officer.
As will be seen, none of the “factors” underlying the majority’s conclusion that the trial court did not abuse its discretion in fact support its decision. Appellant’s “personal situation” does not provide any reason to think his use of medical marijuana is unlawful or related to his offense or future criminality; there is no authority at all, let alone “substantial appellate precedent,” supporting the imposition of a condition of probation that is unrelated to the defendant’s offense or future criminality and restricts lawful conduct; and the 2004 statute Justice Haerle alone relies upon never came into play in the trial court and is inapplicable.
n.
A Condition of Probation Restricting a Right Protected by the CUA Serves No Legitimate Penal Purpose
As indicated, appellant objected to the condition as unlawful on the basis of the reasoning and holding in Tilehkooh, supra, 113 Cal.App.4th 1433.
The defendant in Tilehkooh had been placed on probation for the offense of maintaining a place for the use of a controlled substance. One of the conditions of his probation was not to possess or consume controlled substances unless prescribed by a physician, and to not use or possess any dangerous drugs or narcotics. After he informed his probation officer that he was using marijuana for a medical condition upon the recommendation of his physician, the trial court revoked his probation. The Court of Appeal reversed, concluding, as material, that the CUA provided the defendant a defense, and that revocation of probation for the medical use of marijuana serves no legitimate penal purpose.
In explaining its reasoning, the court emphasized that section 11362.5 (i.e., the CUA) did more than merely decriminalize the possession and use of medical marijuana. Subdivision (b)(1)(A) says the purpose of section 11362.5 is to “ensure ... the right to obtain and use marijuana for medical purposes.” Subdivision (b)(1)(B) says that in order to achieve that purpose, it is also necessary “[t]o ensure that patients . . . who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.” (Italics added.) As the Tilehkooh court observed, “[w]e are directed to give sense to all of the terms of an enactment. To do so requires that we give effect to the purposes of section 11326.5 to ensure the right to obtain and use marijuana. In particular, we must give effect to subdivision (b)(1)(A), which establishes a ‘right to obtain and use [866]marijuana for medical purposes’ and which links the right to use marijuana with the prohibition on the imposition of a ‘criminal prosecution or sanction.’ It is readily apparent that the right to obtain or use marijuana is not ‘ensure[d]’ if its use is not given protection from the adverse consequences of probation. Since the use of marijuana is not a crime, the term ‘prosecution or criminal sanction’ must be read to apply to any criminal sanction for the use of marijuana. The immediate candidate is probation, the regulation of which is within the Penal Code provisions on punishment and the violation of which subject a probationer to significant restrictions on his or her liberty. (Pen. Code, § 1203.2.) PR] Indeed, it would completely frustrate the purpose of section 11362.5 if a violation of probation for the medical use or possession of marijuana is permitted while barring a criminal prosecution for the identical conduct.” (Tilehkooh, supra, 113 Cal.App.4th at p. 1443.)
In determining that the revocation of probation for the medical use of marijuana serves no rehabilitative purpose, the Tilehkooh court began by pointing out that “ ‘California Courts have traditionally been wary of using the probation system for any nonrehabilitative purpose, no matter how superficially rational.’ ” (Tilehkooh, supra, 113 Cal.App.4th at p. 1444, quoting People v. Richards, supra, 17 Cal.3d at p. 621, fn. 4.) The court went on to reason that “[a] rehabilitative purpose is not served when the probation condition proscribes the lawful use of marijuana for medical purposes pursuant to section 11362.5 any more than it is served by the lawful use of a prescription drug, [f] A probation condition, even if it is not a violation of the criminal law, must be ‘reasonably related to the crime of which the defendant was convicted or to future criminality.’ [Citation.] However, it ordinarily cannot be said that the treatment of an illness by lawful means is so related.” (Tilehkooh, at p. 1444.)
The Tilehkooh court also noted that probation may be limited by other statutes, pointing out that California courts have upheld the specific limits on probation established by the Substance Abuse and Crime Prevention Act (Pen. Code, § 1210 et seq.) enacted by the voters in 2000 as Proposition 36, citing as examples People v. Davis (2003) 104 Cal.App.4th 1443, 1447-1448 [129 Cal.Rptr.2d 48], In re Mehdizadeh (2003) 105 Cal.App.4th 995, 1000 [130 Cal.Rptr.2d 98], and People v. Murillo (2002) 102 Cal.App.4th 1414, 1418-1421 [126 Cal.Rptr.2d 358]. (See also Gardner v. Schwarzenegger (2009) 178 Cal.App.4th 1366 [101 Cal.Rptr.3d 229].) The court saw “no reason to treat the plain language of section 11362.5 differently. It precludes the imposition of a ‘criminal sanction’ for the use and possession of marijuana and ensures the right to use and possess marijuana when the user satisfies the conditions of section 11362.5. For this reason section 11362.5 provides a defense to a probation revocation based on marijuana possession or use.” (Tilehkooh, at pp. 1444—1445.) If probation cannot be revoked for the [867]lawful use of medical marijuana, imposition of a condition restricting its use cannot be permissible in the first place.
The majority attempts to contain the reasoning of Tilehkooh by declaring that the imposition of a probation condition is not a “ ‘criminal sanction’ ” within the meaning of the CUA, and by emphasizing that the Tilehkooh court held only “that a revocation of probation based on the use of marijuana was such a sanction and therefore subject to the defense provided by [the CUA].” (Maj. opn., ante, at p. 856.) This strained argument cannot succeed. “The essence of probation is the condition—a judicially imposed restriction upon the convict’s actions after release. The offender’s life is closely supervised by a probation officer; his breach of any of the restrictions may lead to revocation of the limited grant of freedom and imposition of the more coercive penalty prescribed for the crime.” (Note, Judicial Review of Probation Conditions (1967) 67 Colum. L.Rev. 181, fti. omitted.) If, as the majority acknowledges, probation cannot be revoked for violation of a probation condition restricting the use of marijuana that complies with the requirements of the CUA (because it serves no reformative or rehabilitative purpose), imposition of the condition is pointless. All it accomplishes is the placement of a legally unwarranted cloud over a probationer’s conduct.
Ignoring the reasoning of Tilehkooh, the majority suggests in a footnote that it may be inconsistent with that of People v. Balestra (1999) 76 Cal.App.4th 57, 68-69 [90 Cal.Rptr.2d 77] (Balestra) and People v. Bianco (2001) 93 Cal.App.4th 748, 752-754 [113 Cal.Rptr.2d 392] (Bianco), but fails to explain why. (Maj. opn., ante, at p. 853, fn. 12.) Balestra does not involve a probation condition restricting rights under the CUA or otherwise invalid under the Lent test. The language of the majority opinion in Bianco that my colleagues rely upon does conflict with the later decision of the same court in Tilehkooh, insofar as it approves a condition of probation restricting the use of medical marijuana on the grounds that marijuana use is a crime and the restriction was reasonably related to the defendant’s marijuana offense. However, as pointed out in Tilehkooh, Bianco preceded the Supreme Court’s opinion in Mower. (Tilehkooh, supra, 113 Cal.App.4th at p. 1447.) Justice Morrison, who wrote the majority opinion in Bianco, was a member of the unanimous panel of the same court in Tilehkooh. In his separate concurring opinion in Tilehkooh, Justice Morrison acknowledges that, as Presiding Justice Scotland indicated in a separate opinion dissenting in part from the majority opinion in Bianco, and as Mower subsequently made clear, the CUA creates a qualified immunity that “takes the possession of marijuana and puts it in a special category apart from other legal acts, such as the use of alcohol, that can properly be made a condition of probation.” (Tilehkooh, at p. 1447 (conc. opn. of Morrison, J.).) It is also worth noting that the appellants in Bianco and Tilehkooh had both been convicted of or charged with marijuana offenses, so that a condition of probation prohibiting them [868]from possessing or using marijuana was in some sense related to their criminal acts. That cannot be said of appellant here, who has never been convicted or even charged with a marijuana or any other drug offense.
Indeed, the trial court’s explanation of how the use of medical marijuana while on probation would interfere with appellant’s reformation and rehabilitation utterly ignores the CUA. The only explanation offered by the trial court—that “[ejvery person I have ever seen, that sits around smoking dope, goes nowhere . . . [and] [y]ou can’t function when you are loaded . . .”— would justify restriction of the lawful use of medical marijuana in every case. The theory that led the sentencing court to impose the challenged condition is not shared by the voters who enacted the CUA. If the question were whether I agreed with that theory, I would, like Justice Holmes, “study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.” (Lochner v. New York (1905) 198 U.S. 45, 75 [49 L.Ed. 937, 25 S.Ct. 539] (dis. opn. of Holmes, J.).) A sentencing court may disagree with the aim and directives of the CUA, but it cannot defy them.
III.
No Evidence Shows That Appellant’s Use of Medical Marijuana Is Not in Accordance with and Protected by the CUA
In People v. Peterson (1973) 9 Cal.3d 717 [108 Cal.Rptr. 835, 511 P.2d 1187] (Peterson), the foundational California decision regarding the use of facts contained in the probation report, Chief Justice Wright, speaking for a unanimous court, stated as follows: “Conceding that a [sentencing] judge may consider other criminal conduct even if uncharged, . . . there must be some substantial basis for believing such information is reliable ...[.] [A] ‘rational penal system must have some concern for the probable accuracy of the informational inputs in the sentencing process’ [citation].” (Peterson, supra, 9 Cal.3d at p. 727.) Where “[t]he court afforded defendant a lengthy and full hearing, patiently heard defendant’s numerous witnesses, considered his extensive arguments and carefully weighed such matters in resolving issues consistent with creditable information before it,” there is no denial of federal constitutional rights, nor “denial of parallel rights guaranteed under article I, section 19, or other provisions of the California Constitution.” (Peterson, at p. 730.)
People v. Peck (1996) 52 Cal.App.4th 351 [61 Cal.Rptr.2d 1] (Peck), is also instructive on the evidentiary issue. The defendant in that case, who was [869]a member of a church that used marijuana as a sacrament (and not for medicinal purposes) and smoked marijuana three times daily, was convicted of illegally transporting marijuana. In approving a condition of probation prohibiting him from possessing and using marijuana, on the ground that it served the dual purposes of rehabilitation and public safety, the appellate court emphasized the evidentiary support for the condition in the record. “The prosecution’s expert testified that marijuana impairs driving [and the] [defendant’s expert, a medical doctor and professor of pharmacology, agreed. He stated marijuana decreases motor abilities in many people, causing difficulty in depth perception and an altered sense of timing which are particularly hazardous during driving. His opinion was that individuals who ingest marijuana and become intoxicated ‘shouldn’t drive cars.’ ”2 (Peck, supra, 52 Cal.App.4th at p. 363.)
The factual inquiries conducted in Peterson and Peck have no counterpart in this case. The absence of inquiry and evidence here is comparable to that in In re Bushman (1970) 1 Cal.3d 767 [83 Cal.Rptr. 375, 463 P.2d 727], disapproved on other grounds in Lent, supra, 15 Cal.3d at page 486, footnote 1, where the court stmck a condition of probation requiring the defendant to obtain psychiatric counseling. Pointing out that a condition of probation is invalid if it fails the Lent test, Chief Justice Traynor relied upon the fact that “[t]here is no evidence to support the trial court’s conclusion that petitioner needed psychiatric care. No expert witnesses testified to his mental condition. Neither the prosecution nor the court questioned any witnesses about that condition. Under these circumstances the condition as to psychiatric care had no relationship to the crime of which petitioner was convicted. Furthermore, without any showing that mental instability contributed to that offense, psychiatric care cannot reasonably be related to future criminality.” (In re Bushman, at p. 777; see also People v. Bauer (1989) 211 Cal.App.3d 937, 943-944 [260 Cal.Rptr. 62].) The same can be said in this case with respect to the court’s restriction on appellant’s use of medical marijuana.
There is no evidence or reason to think appellant’s use of marijuana was related to his offense or uncharged embezzlement or to any other questionable behavior, and he has never been charged with a marijuana offense or any other drug offense. No witness disputed appellant’s statement that he suffers migraine headaches, which is specified in the CUA as an illness for which marijuana provides relief. (§ 11362.5, subd. (b)(1)(A).) There is also no evidence that appellant’s use of marijuana was not recommended or approved by a physician to relieve the pain caused by appellant’s migraine headaches. Nor did the probation department or the prosecution question appellant’s [870]eligibility to use medical marijuana under the CUA. Finally, there is no evidence appellant used medical marijuana at times and places presenting a threat to public safety.
The majority, however, takes the view that appellant had the responsibility and failed to demonstrate his entitlement to use medical marijuana. The majority states, “no evidence or argument was offered, or for that matter even hinted at, to support appellant’s claims that he (1) had migraine headaches, (2) had consulted a doctor regarding them, and (3) used marijuana only at bedtime four times a week. Thus, neither the letters from appellant’s parents, pastor, and a neighbor, nor even his own letters to the court, mention his use of marijuana, much less the reasons for it, i.e., alleged migraine headaches. Nor did appellant’s counsel offer to supply any such evidence to the court. Indeed, the only evidence anyplace in the record on this subject was a copy of the ‘recently obtained’ medical marijuana card attached at the end of the deputy probation officer’s report.” (Maj. opn., ante, at p. 848.)
I recognize that medical use of marijuana under the CUA is “an affirmative defense to be proven by the defendant at trial” in a criminal prosecution (People v. Fisher (2002) 96 Cal.App.4th 1147, 1152 [117 Cal.Rptr.2d 838]), but so too is it an affirmative defense to the imposition of any other criminal sanction, as Tilehkooh shows. And the majority completely ignores the significance of appellant’s medical marijuana card. The Medical Marijuana Program (§§ 11362.7-11362.9; hereafter MMP), enacted in 2003, provides for persons “who qualify for exemption from California’s statutes criminalizing certain conduct with respect to marijuana ... to apply for and obtain an identification card verifying their exemption.” (County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 808 [81 Cal.Rptr.3d 461].) “Among the MMP’s purposes was to ‘ “facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers.” ’ ([People v. Wright (2006)] 40 Cal.4th [81,] 93 [51 Cal.Rptr.3d 80, 146 P.3d 531].) To that end, the MMP included provisions establishing a voluntary program for the issuance of identification cards to persons qualified to claim the exemptions provided under California’s medical marijuana laws. (§§ 11362.7, subd. (f), 11362.71.) Participation in the identification card program, although not mandatory, provides a significant benefit to its participants: they are not subject to arrest for violating California’s laws relating to the possession, transportation, delivery or cultivation of marijuana, provided they meet the conditions outlined in the MMP. (§ 11362.71, subd. (e).)” (County of San Diego v. San Diego NORML, at p. 810.) “[T]he MMP’s identification card system is a discrete set of laws designed to confer distinct protections under California law that the CUA does not provide without limiting the protections the CUA does provide. For example, unlike the CUA, which did not immunize medical marijuana users [871]from arrest but instead provided a limited ‘immunity’ defense to prosecution under state law for cultivation or possession of marijuana (see [Mower, supra,] 28 Cal.4th 457, 468-469 . . .), the MMP’s identification card system is designed to protect against unnecessary arrest. (See § 11362.78 [law enforcement officer must accept the identification card absent reasonable cause to believe card was obtained or is being used fraudulently].)” (County of San Diego v. San Diego NORML, at p. 830.)
The identification card system under the MMP thus provides the holder of such a card protection beyond that available to other persons who may be entitled to use medical marijuana. The identification card serves as prima facie evidence of a right to protection under the CUA. Had appellant not possessed a medical marijuana card, it would have been incumbent upon him to demonstrate to the court that he was entitled to use medical marijuana. But the identification card issued to appellant under laws intended to facilitate protection of authorized medical marijuana users put an onus on the prosecution and the court to identify some reasonable cause for believing the card was not valid. The court was not free to ignore the card altogether, as it did.
The majority upholds the trial court’s decision in large part because it shares the trial court’s doubts about appellant’s credibility, which led it to question “ ‘[this] medical marijuana for a headache’ claim.” (Maj. opn., ante, at p. 848.) Because nothing in the CUA condones the use of marijuana for nonmedical purposes, legitimate doubts about appellant’s credibility and possible “gam[ing] the system” would certainly have justified judicial inquiry into the validity of his medical marijuana card and eligibility to use medical marijuana. The court could have treated appellant’s request to use medical marijuana while on probation as a request pursuant to section 11362.795, subdivision (a)(1), for the court to “confirm” that he is allowed by the CUA to use marijuana for medicinal purposes, and refuse to so “confirm” if it found his use was not in compliance with the CUA; in which case the court’s decision and the reasons for the decision would have to be stated on the record and an entry stating those reasons made in the minutes of the court. (§ 11362.795, subd. (a)(2).) If the court refused to “confirm” that appellant was qualified to use medical marijuana, it certainly could have imposed the challenged condition.
But the court did not employ that procedure, and the record provides no evidentiary basis for assuming appellant’s medical marijuana card was not valid and his use of marijuana does not satisfy the conditions of the CUA.3 [872]The trial court’s suspicion that appellant does not suffer migraine headaches and obtained his medical marijuana card falsely or fraudulently cannot be treated as an adjudication. The diagnosis and treatment of medical problems are functions assigned to the medical profession, not criminal court judges; and such judges cannot make factual determinations except on the basis of sufficient evidence at hearings comporting with due process of law. Nor, because he is not a medical expert, can a trial judge make a factual determination based on no more than his own “opinion” that a defendant’s use of medical marijuana is for some undisclosed reason inimical to his reformation and rehabilitation. The trial judge stated that if appellant insisted upon using medical marijuana, “I’m going to have second thoughts about his judgment, and that suggests to the Court that he’s not very serious about what has occurred or changing things.” It is not appellant’s judgment regarding medical marijuana that the court should have focused on, however, but that of a physician. If, as appellant claims and his medical marijuana card indicates, his use of medical marijuana was recommended by a physician for the relief of pain, he cannot be sent to prison or jail for following that advice.* [4]
[873]Nor can it be viewed as significant that appellant’s supporters did not mention his use of medical marijuana in their statements to the court, as there was no reason for them to be aware of any need to explain or justify his use of medical marijuana to the court. Appellant produced a facially valid medical marijuana card, which is prima facie evidence of eligibility to use medical marijuana (§ 11362.78), the prosecution never claimed he was ineligible to use medical marijuana, and the court never placed appellant on notice of any need to further demonstrate his eligibility. Rather, the court finessed the issue by insisting upon appellant’s “voluntary” acceptance of the restriction. In effect, the court improperly rendered it irrelevant whether appellant’s use of marijuana satisfied the conditions of the CUA. Additionally, given the depth of the court’s expressed antipathy to any use of “dope,” appellant’s insistence upon an opportunity to demonstrate that his use of marijuana was protected by the CUA would almost certainly have further antagonized the court.
IV.
Appellant’s “Agreement” to the Condition Does Not Constitute an Enforceable Waiver of the Right to Challenge Its Unlawfulness
The challenged condition cannot be sanctified by appellant’s “agreement” to it at the sentencing hearing. Preliminarily, as all familiar with the criminal justice system are well aware, “[i]n the vast majority of cases, the offender will agree to almost any condition of probation in order to avoid extended incarceration.” (Polonsky, Limitations Upon Trial Court Discretion in Imposing Conditions of Probation (1973-1974) 8 Ga. L.Rev. 466, 486.) Courts that have analogized the transaction between the defendant and the trial court to a “bargain” or “contract” to act do so improperly, it is said, “because the analogy is not complete. The law of contract is posited upon the notion of an equality of bargaining position between parties which culminates in a voluntary agreement. However, defendants are not in a position to bargain with a court because virtually any condition is preferable to jail.” (Best & Birzon, Conditions of Probation: An Analysis (1962-1963) 51 Geo. L.J. 809, 832-833, italics added.)
As one court has explained, reviewing courts should not use waiver theory to avoid the need to inquire into the validity of a condition claimed to be unlawful on the ground the defendant consented to it because such consent “is a ‘hypothetical’ or a ‘nominal’ rather than real consent. The overhanging Damoclean sword of imprisonment prevents a true consent. The ‘waiver’ concept also fails to take into account the duty, the authority, nondelegable, of the trial court to imprison or grant probation on lawful terms. That power [874]does not, cannot, rest on either real or nominal ‘waiver’ or ‘consent’ by the to-be-sentenced defendant. [Citation.] However, by accepting the benefits of probation a defendant does not waive the right to urge the invalidity of an improper, a void, condition on direct appeal from that judgment or on habeas corpus (In re Bushman[, supra,] 1 Cal.3d 767, 776 . . . ; People v. Dominguez [(1967)] 256 Cal.App.2d 623, 629 [64 Cal.Rptr. 290]; In re Allen [(1969)] 71 Cal.2d 388, 389 [78 Cal.Rptr. 207, 455 P.2d 143]) . . . .” (People v. Keller (1978) 76 Cal.App.3d 827, 832-833, fn. 2 [143 Cal.Rptr. 184].)5
Our Supreme Court has made clear that, where, as here, a proper objection was made at the sentencing hearing, “[a] criminal defendant need not reject probation and accept incarceration in order to seek review of an allegedly unreasonable or invalid search condition . . . .” (People v. Woods (1999) 21 Cal.4th 668, 678, fn. 5 [88 Cal.Rptr.2d 88, 981 P.2d 1019]; see Welch, supra, 5 Cal.4th at pp. 236-237.) As Welch framed the same point, “the law does not force a defendant either to accept probation under conditions he deems intolerable, or to reject probation and accept incarceration in order to seek review of an allegedly invalid condition.” (Welch, at pp. 236-237, italics added.) Appellant in the present case did timely object to the condition he now challenges.6
The majority finds support for its decision in the statement in Justice Arabian’s concurring opinion in Welch that, “[i]f the trial court determines in the proper exercise of its discretion that it cannot achieve the rehabilitative goals of probation without imposing an objectionable condition, then it will be fully justified in denying probation on that basis if the defendant declines to accept it.” (Welch, supra, 5 Cal.4th at p. 239 (conc. opn. of Arabian, J.).) (Maj. opn., ante, at pp. 852-853, fn. 11.) The critical premises of this statement are that the trial court’s decision is a “proper exercise of its discretion” and that the imposed condition is necessary to “achieve the rehabilitative goals of probation.” The statement thus offers no support for the [875]proposition that a trial court may require a defendant to accept an unlawful condition of probation that is not related to the rehabilitative goals of probation.
The unfair waiver theory adopted by the majority is not, as my colleagues say, authorized by People v. Bravo (1987) 43 Cal.3d 600 [238 Cal.Rptr. 282, 738 P.2d 336] (Bravo), by our opinion in People v. Brewer (2001) 87 Cal.App.4th 1298 [105 Cal.Rptr.2d 293] (Brewer), or by any other California case. (Maj. opn., ante, at pp. 851-852.) Our high court has never suggested that a condition of probation that has no relationship to the crime of which the defendant is convicted, relates to conduct that is not itself criminal, and requires or forbids conduct that is not reasonably related to future criminality (Lent, supra, 15 Cal.3d at p. 486) can nevertheless be legitimated by an “agreement” of the sort appellant entered into with the trial court here.
Bravo did not involve a claim that the search condition at issue was invalid under the Lent test, and there was no objection to the condition at the time of sentencing. On the contrary, the defendant overtly acknowledged that he was subject to the challenged search as a condition of probation, and made no claim that the waiver effected by his acceptance of that condition was involuntary; nor did he even claim that the search condition was unreasonable. (Bravo, supra, 43 Cal.3d at pp. 602-604.) His very different argument was that, notwithstanding the reasonableness and lawfulness of the search condition, “a ‘rule of reasonableness’ applied, permitting a search only if there were reasonable cause to believe he was currently involved in criminal activity.” (Id. at p. 604.) Bravo holds that a probationer who agreed as a condition of probation to submit to warrantless searches could not subsequently challenge such a search on the basis that it was conducted without reasonable cause to believe he was currently involved in criminal activity. In other words, the holding of Bravo is merely that the scope of the defendant’s consent to the search condition encompassed consent to a search without reasonable suspicion of criminal activity. (Id. at pp. 605-610.) The situation in Bravo is thus completely different from that here, where appellant is attacking the lawfulness of the challenged condition and made a timely objection, and the voluntariness of his consent to the condition is highly questionable. Nothing in Bravo suggests that a defendant cannot challenge a condition of probation invalid under the Lent test because he or she accepted it in order to avoid the more onerous alternative of prison or jail. On the contrary, the Bravo court expressly stated that the defendant’s consent would not have permitted a search “conducted for reasons unrelated to the rehabilitative and reformative purposes of probation or other legitimate law enforcement purposes” such as for “harassment or . . . for arbitrary or capricious reasons.” (Bravo, at p. 610; see People v. Robles (2000) 23 Cal.4th 789, 797 [97 Cal.Rptr.2d 914, 3 P.3d 311] [“searches that are undertaken pursuant to a probationer’s advance consent must be reasonably related to the purposes of [876]probation”].) As Mower and Tilehkooh teach, a condition of probation restricting the lawful use of marijuana upon the recommendation or approval of a physician cannot be deemed to serve rehabilitative and reformative purposes.
The general principle underlying Bravo and our opinion in Brewer7 is simply that a defendant can be required to give up statutory or constitutional rights as a condition of probation. (Bravo, supra, 43 Cal.3d at pp. 608-609; Brewer, supra, 87 Cal.App.4th at pp. 1311-1312.) This settled principle provides no support for the proposition that an offender’s acceptance of an unlawful condition constitutes an enforceable waiver of the right to challenge the condition on the ground it serves no legitimate penal purpose.
Except for People v. Juarez (2004) 114 Cal.App.4th 1095 [8 Cal.Rptr.3d 238] (Juarez), which is later discussed, none of the other cases relied upon by my colleagues in which a condition of probation was challenged (People v. Olguin (2008) 45 Cal.4th 375 [87 Cal.Rptr.3d 199, 198 P.3d 1]; People v. Jungers (2005) 127 Cal.App.4th 698 [25 Cal.Rptr.3d 873]; In re York (1995) 9 Cal.4th 1133 [40 Cal.Rptr.2d 308, 892 P.2d 804]; In re Tyrell J. (1994) 8 Cal.4th 68 [32 Cal.Rptr.2d 33, 876 P.2d 519], overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 139 [51 Cal.Rptr.3d 430, 146 P.3d 965]; People v. Medina (2007) 158 Cal.App.4th 1571 [70 Cal.Rptr.3d 413]; Balestra, supra, 76 Cal.App.4th 57) suggest that the appellant’s waiver barred him from challenging the condition under the Lent test, because in those cases the reviewing courts found the challenged condition valid only after applying that test.
Take, for example, People v. Olguin, supra, 45 Cal.4th 375, in which the challenged condition required the defendant to notify his probation officer of the presence of any pets in his house. The defendant argued that the condition “is not reasonably related to future criminality, limits his fundamental rights, and is unconstitutionally overbroad.” (Id. at p. 378.) The Supreme Court disagreed. Concluding that the condition did not implicate any fundamental or constitutional right, the court explained why it was reasonably related to future criminality and satisfied the Lent test of validity despite the unusual facts that it did not relate to the offense and the ownership of pets was not itself criminal: “The condition requiring notification of the presence of pets is reasonably related to future criminality because it serves to inform and [877]protect a probation officer charged with supervising a probationer’s compliance with specific conditions of probation. As noted above, to ensure that a probationer complies with the terms of his or her probation and does not reoffend, a probation officer must be able to properly supervise that probationer. Proper supervision includes the ability to make unscheduled visits and to conduct unannounced searches of the probationer’s residence. Probation officer safety during these visits and searches is essential to the effective supervision of the probationer and thus assists in preventing future criminality. Therefore, the protection of the probation officer while performing supervisory duties is reasonably related to the rehabilitation of a probationer for the purpose of deterring future criminality.” (Olguin, at p. 381, italics added.) There is no such nexus in the present case. The significant “holding” of the Olguin court is not its reiteration of the Lent rule, as Justice Haerle says (maj. opn., ante, at p. 846, fn. 4), but its conclusion that the challenged condition passed muster under that mle.
In every one of the other cases cited by the majority, the opinion also makes clear that the challenged condition was in some fashion reasonably related to the reformation and rehabilitation of the defendant and therefore valid. (People v. Jungers, supra, 127 Cal.App.4th 698 at p. 703 [condition was “directly related to [defendant’s] criminal offense and reasonably related to future criminality”]; In re York, supra, 9 Cal.4th at pp. 1150-1151 [condition of own recognizance release deemed comparable to a valid condition of probation because it is “ ‘reasonably related to the [defendant’s] prior criminal conduct and [was] aimed at deterring or discovering subsequent criminal offenses’ ”]; In re Tyrell J., supra, 8 Cal.4th at p. 87 [search condition served goal of deterring fiiture misconduct and furthered rehabilitation of minor]; People v. Medina, supra, 158 Cal.App.4th at p. 1576 [search condition “aid[ed] in deterring further offenses by the probationer and in monitoring compliance with the terms of probation”]; Balestra, supra, 76 Cal.App.4th at pp. 68-69 [no-alcohol condition is reasonable where defendant has an “alcohol problem”].)
In People v. Johnson (2002) 28 Cal.4th 1050 [123 Cal.Rptr.2d 700, 51 P.3d 913], the only case relied upon by Justice Richman that is arguably relevant,8 a defendant who pled guilty to first degree burglary was sentenced to the upper term of six years in state prison, execution of that sentence was suspended, and the defendant placed on probation conditioned upon his agreeing to waive all custody credits to which he was entitled, under Penal Code section 2900.5, for time served in county jail and in a residential drug [878]treatment facility. On appeal, the defendant argued that his waiver was unenforceable because the trial court had imposed the maximum term of imprisonment and thus, if he violated probation and was sent to state prison, his total time in custody would exceed that allowed by law. (28 Cal.4th at p. 1055.) Invoking the Lent rule that probation conditions must serve some legitimate purpose relating to the offender or the offense, the defendant argued “that the only purpose served by conditioning his probation upon a waiver of past and future custody credits was an illegitimate one-exposing him to the possibility of serving more than six years in custody for an offense with a six-year maximum sentence.” (28 Cal.4th at p. 1056.) The Supreme Court disagreed.
As Justice Kennard explained, “the trial court required defendant’s waiver not just of credits for time spent at the Turning Point treatment program but also for time spent in county jail, both before sentencing and while awaiting placement in the program. The waiver was to give defendant an incentive to successfully complete the residential treatment program based on the knowledge that failure to do so would expose him to imposition of the six-year prison sentence unreduced by previously served custodial time. Here, defendant, who admittedly suffers from drug dependency, committed a serious residential burglary warranting maximum punishment, but the trial court’s grant of probation gave him a chance to get off drugs and to avoid state prison. On these facts, we cannot say that the trial court’s requirement of a waiver of custody credits as a condition of granting probation lacked any legitimate penal function.” (People v. Johnson, supra, 28 Cal.4th at pp. 1056-1057, italics added.) Because the condition imposed in Johnson provided the defendant “sufficient incentive to comply with the other terms of probation and to successfully complete the rehabilitation program” (id. at p. 1057), it passed the Lent test and the defendant’s waiver was enforceable.
Our opinion in Juarez, supra, 114 Cal.App.4th 1095, which sustained a condition similar to that upheld in Johnson, relied on the portions of the Johnson opinion just quoted. Justice Richman says he “read[s] what happened here as being exactly what happened in [Juarez],” and emphasizes that Juarez “did not even mention [Lent] . . . .” (Conc, opn., ante, at p. 860.) Justice Richman fails to appreciate that, as I have said, Juarez relies almost entirely on the reasoning of Johnson, which points to Lent (and also People v. Carbajal, supra, 10 Cal.4th 1114, 1121, which cites Lent) as positing the relevant “rule that probation conditions must serve some legitimate purpose relating to the offender or the offense.” (People v. Johnson, supra, 28 Cal.4th at p. 1056.) Justice Richman’s statement “Substitute ‘use of medical marijuana’ for ‘custody credits,’ and that is what occurred here” (conc, opn., ante, at p. 860) would be correct only if, like a restriction on custody credits, a restriction on the use of medical marijuana had a legitimate penal purpose. It does not.
[879]As I have explained, the condition challenged in this case fails the Lent test. Appellant’s use of marijuana appears to satisfy the conditions of the CUA, such use of marijuana is not criminal, and the record provides no basis upon which to conclude that restriction of his use of medical marijuana serves any reformative or rehabilitative purpose. Because the challenged condition has no legitimate penal purpose, appellant’s “voluntary” acceptance of it cannot constitute an enforceable waiver.
IV.
The Different and Novel Waiver Theories Advanced by the Attorney General Are Untenable
The majority’s analysis of this case is very different from that of the Attorney General. To begin with, like the district attorney, the Attorney General never suggests that appellant’s use of marijuana fails to satisfy the conditions of the CUA. Recognizing that marijuana use in compliance with the CUA is not criminal conduct, the Attorney General urges that the CUA nevertheless “did not completely abrogate the trial court’s discretion when placing conditions on probation.” According to the Attorney General, “[t]he requirement that appellant choose between the abandonment of his marijuana use during the term of probation or deprivation of the drug during a term in jail was reasonably related to appellant’s rehabilitation and the protection of the public” or, alternatively, “the trial court cannot be said to have abused its discretion in providing defendant the opportunity to continue using medicinal marijuana other than during his jail term at his choice.” This argument is incomprehensible.
First of all, the Attorney General offers no satisfactory explanation as to how the restriction on medical marijuana is reasonably related to appellant’s rehabilitation and the protection of the public. The Attorney General’s conclusionary statement that the trial court in this case “articulated a well-reasoned summary of the facts and circumstances” that led to the condition is inexplicable. The factor that led to the condition was no more than the trial judge’s expressed “opinion” that “smoking dope isn’t going to help [appellant]” and that “[e]very person I have ever seen, that sits around smoking dope, goes nowhere.” Insofar as this opinion applies to medical marijuana, it conflicts with the stated purpose of the CUA.
Furthermore, the choice “between the abandonment of [appellant’s] marijuana use during the term of probation or deprivation of the drug during a term in jail” is no choice at all. Neither of the alternatives to acceptance of a medical marijuana restriction presented appellant (namely, prison or jail) [880]offered him “the opportunity to continue using medical marijuana,” as the Attorney General seems to think.
Finally, while the CUA does not explicitly address the conditions that may be placed on probation, it clearly declares that no “criminal prosecution or sanction” may be placed on the use of marijuana it authorizes. (§ 11362.5, subd. (b)(1)(B).) The Attorney General does not explain why a judicial restriction on the use of medical marijuana is not such a criminal sanction nor why, contrary to Tilehkooh, such a restriction is not barred by the CUA.
The Attorney General does not take issue with the reasoning and holding of Tilehkooh, but finds it distinguishable, arguing that “[i]n Tilehkooh, the court noted that the reason the defendant was placed on supervised probation was for maintaining a place for the use of a controlled substance and the record failed to convey what were the circumstances of the offense. [Citation.] Here, by contrast, the record clearly indicates the circumstances of the offense and the exact substance with which appellant was involved. Further, the trial court articulated a well-reasoned summary of the facts and circumstances that led to the probation order.”
This argument is as weak as the others the Attorney General advances. As the unknown circumstances of the offense for which the defendant in Tilehkooh was on probation were not relevant to the issue on appeal and the absence of this evidence did not factor into the court’s analysis, the significance of the Attorney General’s distinction is unclear. In any event, the Attorney General’s description of Tilehkooh as having “merely found a probation condition, which prohibited the lawful use of a prescription drug, did not serve a rehabilitative purpose where there is no claim that the probationer’s conduct endangered others or that he diverted marijuana for nonmedical purposes,” also accurately describes the situation in this case. In fact, the defendant in Tilehkooh was convicted of a drug offense and had a history of marijuana use, making the absence of rehabilitative purpose even more apparent in the present case, since appellant was not convicted of a drug offense.
The Attorney General’s statement that “appellant cannot satisfy the elements of the Lent test” because “[t]he court contemplated that only after appellant completely dissociated from the marijuana subculture would it be likely that he will not commit crimes in the future” begs the fundamental questions, which are how appellant’s continued use of medical marijuana in a manner that satisfies the conditions of the CUA relates to future criminality (which is a factual question) and, if that can be shown, how a restriction of such use can be reconciled with the CUA (which is a legal issue).
[881]Seemingly aware of the weakness of the foregoing arguments, the Attorney General advances a much more creative alternative theory, which is designed to immunize the probation condition from judicial review, thereby rendering its unlawfulness irrelevant. As the Attorney General sees it, the crucial waiver in this case is not appellant’s “voluntary” acceptance of the condition at the sentencing hearing, as my colleagues believe, but the waiver he made at the time he entered his plea of guilty.
The written “Waiver of Constitutional Rights and Declaration” appellant filed in support of his motion to change his plea states: “Even though I will be convicted in this case as a result of my plea, I have the right to appeal the judgment and rulings of the court. [j[] I give up my right of appeal.” (Original boldface.) Appellant initialed the provision and signed the waiver form, acknowledging that his attorney had read and explained the document to him and that appellant entered the agreement freely, voluntarily, and knowingly. He also initialed the portions of the form stating that the maximum punishment was “3 years State prison,” and that the prosecution would not file criminal charges against him for embezzling $2,000 from his former employer, Mervyn’s, but if appellant received probation on the instant offense it would be conditioned on payment of restitution to Mervyn’s for the uncharged embezzlement. According to the Attorney General, this was a “specific waiver” which operates to bar appellant from appealing any later sentencing error, presumably including the lawfulness of the challenged condition of probation.
The Attorney General’s contention rests chiefly on People v. Panizzon (1996) 13 Cal.4th 68 [51 Cal.Rptr.2d 851, 913 P.2d 1061] (Panizzon), which actually undermines his argument. As part of a plea bargain, Panizzon specifically agreed to a sentence of life with the possibility of parole, plus 12 years, and acknowledged that a restitution fine would be imposed and that he waived the right to appeal the sentence. (Id. at pp. 73-74.) These were precisely the sentencing provisions actually imposed on him. He nevertheless argued on appeal that the error he claimed—which was “constitutional disproportionality in comparison with sentences imposed subsequently on his codefendants”—occurred after the entry of his plea and was therefore “ ‘future sentencing error’ ” outside his contemplation and knowledge at the time he made his waiver and beyond the scope of his waiver, citing People v. Sherrick (1993) 19 Cal.App.4th 657 [24 Cal.Rptr.2d 25] (Sherrick) and People v. Vargas (1993) 13 Cal.App.4th 1653 [17 Cal.Rptr.2d 445] (Vargas). (Panizzon, at p. 85.) The Supreme Court soundly rejected this claim.
After pointing out that the sentence imposed was exactly that specified in the plea agreement, the court stated that the defendant was really seeking “appellate review of an integral element of the negotiated plea agreement, as [882]opposed to a matter left open or unaddressed by the deal. Since both the length of the sentence and the right to appeal the sentence are issues that cannot fairly be characterized as falling outside of defendant’s contemplation and knowledge when the waiver was made, the reasoning of [Sherrick] and [Vargas] is inapposite.” (Panizzon, supra, 13 Cal.4th at p. 86, italics added.) The Panizzon court agreed that Sherrick and Vargas “support the proposition that a defendant’s general waiver of the right to appeal, given as part of a negotiated plea agreement, will not be construed to bar the appeal of sentencing errors occurring subsequent to the plea.” (Panizzon, at p. 85, italics added, fn. omitted.) The defendants in Sherrick and Vargas, however, “were attempting to appeal sentencing issues that were left unresolved by the particular plea agreements involved.” (Panizzon, at p. 85.) “In each of those decisions, the appellate court viewed the sentencing issue as not being within the contemplation and knowledge of the defendant at the time the waiver was made and so refused to extend thereto a general waiver of the right to appeal.” (Ibid.)
In Panizzon, by contrast, the “[djefendant’s characterization of the issue on appeal as an ‘unforeseen or unknown error’ is off the mark because the sentence imposed by the court was neither unforeseen nor unknown at the time defendant executed the Waiver and Plea agreement. Moreover, the essence of defendant’s claim is that his sentence is disproportionate to his level of culpability [citation], a factor that also was known at the time of plea and waiver. Thus, the real thrust of defendant’s claim concerns events predating entry of the plea and waiver.” (Panizzon, supra, 13 Cal.4th at p. 86.) Panizzon rejected the defendant’s contention “that a specific waiver of the right to appeal a negotiated sentence is unenforceable as to ‘unforeseen or unknown errors’ occurring subsequent to the waiver.” (Id. at p. 85, italics added.) As stated in In re Uriah R. (1999) 70 Cal.App.4th 1152 [83 Cal.Rptr.2d 314], Panizzon stands for the proposition that where “the defendant agrees to a bargain which includes a specific or indicated sentence, and if that is the sentence actually imposed, the defendant’s waiver will foreclose appellate review of the sentence; any challenge to the sentence will be deemed a challenge to an integral component of the bargain.” (In re Uriah R., at p. 1157, italics added.)
What was said of the defendant in Panizzon-—that he sought to “challenge] the very sentence to which he agreed as part of the plea” (Panizzon, supra, 13 Cal.4th at p. 73)—certainly cannot be said of appellant here. The situation in this case is instead analogous to that in Sherrick and Vargas, because the sentence imposed on appellant was not specified in the plea or waiver, but left open to the court.
The waiver incorporated in appellant’s motion to change his plea is accompanied by acknowledgments that “the sentence I receive is solely [883]within the discretion of the Court,” except that the maximum punishment it may impose is three years in state prison, and that whether or not appellant will get probation is also “to be determined solely by the Court.” In other words, appellant did not know at the time he made his waiver whether he would be sentenced to state prison or county jail or get probation; nor, in the event he was given probation instead of prison or jail, did he know what conditions of probation would be imposed, save the requirement of restitution to the victim of the uncharged embezzlement. Nothing at all was said about whether he would retain his right to use marijuana for medicinal purposes. Appellant’s waiver was not a “specific waiver” like that in Panizzon, but a “general waiver” (see Panizzon, supra, 13 Cal.4th at p. 85, fn. 11) that does not give up the right to challenge unanticipated future error.
The Attorney General argues that appellant’s reliance on In re Uriah R., supra, 70 Cal.App.4th 1152, Sherrick, supra, 19 Cal.App.4th 657, and Vargas, supra, 13 Cal.App.4th 1653, is unjustified because “[i]n all three cases, unlike this one, the challenge was not to the components of the judgment constituting the agreed or indicated sentence at the time the plea and waivers were made and, as a result, the appellate claims were not within a general waiver of the right to appeal.” Herein lies the creative aspect of the Attorney General’s waiver theory.
The Attorney General relies upon a line of cases (having nothing to do with any issue raised in this case) stating that though a notice of appeal states that it is from the “sentence,” it must be considered as being from the judgment, “since the judgment and the sentence are in fact one in common parlance and contemplation.” (People v. Bauer (1966) 241 Cal.App.2d 632, 635 [50 Cal.Rptr. 687], citing People v. Sweeney (1960) 55 Cal.2d 27, 33, fn. 1 [9 Cal.Rptr. 793, 357 P.2d 1049] [“The judgment is the sentence and appealing from both is tautological”]; see also People v. Rodriguez (1963) 222 Cal.App.2d 221, 226 [34 Cal.Rptr. 907]; In re Anderson (1939) 34 Cal.App.2d 48, 50 [92 P.2d 1020].) The Attorney General reasons that because the appellant waived the right to appeal the judgment, which is also the sentence, it is irrelevant whether he knew or should have known the specific conditions that would later be imposed on him.9
The Attorney General’s argument conveniently eliminates the difference between specific and general waivers of the right to appeal, which is at the [884]heart of the relevant case law; by obscuring this difference, the Attorney General attempts to apply case law applicable to specific waivers to this case even though appellant’s waiver was a general one. The effort is unavailing. None of the cases cited by the Attorney General (i.e., People v. Rodriguez, supra, 222 Cal.App.2d 221, People v. Bauer, supra, 241 Cal.App.2d 632, and In re Anderson, supra, 34 Cal.App.2d 48) relate to the scope of a waiver of the right to appeal or in any way support the theory that a probation condition cannot be appealed because it is an aspect of the judgment the defendant specifically waived the right to challenge. The Attorney General provides no case dealing with the scope of a waiver of the right to appeal that even adverts to the legal principle he relies upon.
Nor is appellant’s appeal barred by the lack of a certificate of probable cause, as the Attorney General also maintains. The certificate of probable cause requirement (Pen. Code, § 1237.5) generally does not apply to matters occurring after entry of the plea such as the penalty to be imposed. In particular, the certificate requirement does not apply to “attacks on the trial court’s discretionary sentencing choices left open by the plea agreement” (People v. Williams (2007) 156 Cal.App.4th 898, 910 [67 Cal.Rptr.3d 516]) of the sort with which we are here concerned (Panizzon, supra, 13 Cal.4th at p. 78; People v. Sumstine (1984) 36 Cal.3d 909, 915, fn. 3 [206 Cal.Rptr. 707, 687 P.2d 904]; People v. Narron (1987) 192 Cal.App.3d 724, 730 [237 Cal.Rptr. 693]).
V.
Justice Haerle’s Interpretation of Section 11362.795 Distorts the Text and Purpose of the Statute, Which in Any Case Never Came into Play in This Case
Speaking only for himself, Justice Haerle maintains that the enactment of section 11362.795 in 2004, eight years after enactment of the CUA, vested the trial court with discretion to impose the challenged condition even if appellant’s right to use marijuana is protected by the CUA.10 This interpretation of section 11362.795 is baseless and unreasonable; and if it were correct, the statute would represent an unconstitutional amendment of the CUA.
[885]Section 11362.795, which was never mentioned below by the court or counsel, and only in passing by the Attorney General, declares: “(a)(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, [f] (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.” (Italics added.)
The reasoning that leads Justice Haerle to conclude that section 11362.795 grants a sentencing court “discretion to impose a no-marijuana-use probation condition on the holder of a [facially valid] medical marijuana card” (maj. opn., ante, at p. 853), focuses on the Legislature’s use of the word “confirm.” Since a trial court may “confirm” that a probationer is allowed to use marijuana while on probation, Justice Haerle points out, “it would seem obvious that it may also not so ‘confirm.’ ” (ibid.) Pointing out that the statute requires the court to place its “decision” (to confirm or not confirm) on the record and in the minutes of the court (which was not done here), Justice Haerle attributes to the verb “confirm” the meaning of the verb “decide” and untethers the judicial decision from the directives of the CUA. The protections of the CUA are unavailable, Justice Haerle says, because although the CUA bars the imposition of a criminal sanction for the use of medical marijuana, it does not specifically preclude a trial court “from imposing a ‘no-marijuana’ probation condition.” (See maj. opn., ante, at pp. 853-854, fn. 13.) This theory falls of its own weight.
First of all, the CUA does not specifically preclude a court from imposing any particular criminal sanction for the use of medical marijuana because it prohibits all such sanctions. The blanket prohibition on the imposition of criminal sanctions for the use of medical marijuana set forth in the CUA would be rendered nugatory if Proposition 215 had to specifically enumerate every [886]particular sanction that it proposed to prohibit. Justice Haerle’s view that the CUA does not bar imposition of a “no-marijuana” condition of probation ignores the plain meaning of section 11362.5, subdivision (b)(1)(B), and annuls the obvious purpose of the voters who enacted the CUA.
Furthermore, as used in section 11362.795, the word “confirm” does not have the meaning Justice Haerle attributes to it. According to the Oxford English Dictionary, the word “confirm” has two principal meanings: “To make firm or more firm, to add strength to, to settle, establish firmly” and, more pertinent here, “To make valid by formal authoritative assent (a thing already instituted or ordained); to ratify, sanction.” (Oxford English Dict. (2d ed. 1989) p. 709; see also Roget’s II, The New Thesaurus (1980) p. 187 [stating that to “confirm” is “[t]o assure the certainty or validity of: a suspicion confirmed by evidence”].) The Legislature’s use of the word “confirm” in section 11362.795, obviously contemplates a judicial inquiry into the largely factual question whether the defendant’s asserted right to use marijuana for medical purposes satisfies the conditions of the CUA. If, as Justice Haerle says, the statute can be construed to permit a judge to decide (i.e., “not confirm”) that a defendant may not use marijuana while on probation even if he or she is authorized by the CUA to use medical marijuana, then a judge could also decide (i.e., “confirm”) that a defendant is allowed to use marijuana while on probation even if he or she is not authorized to do so by the CUA, which is, of course, absurd. Justice Haerle’s analysis simply cannot be reconciled with Mower and Tilehkooh, which he ignores.
The absence of legislative intent to grant judges the right to restrict the use of medical marijuana by a person eligible to do so under the CUA is shown not just by the text of section 11362.795, but also by its legislative history. Section 11362.795 was part of Senate Bill No. 420 (2003-2004 Reg. Sess.) introduced by Senator John Vasconcellos in the 2003 legislative session and commonly known as the Medical Marijuana Program. “In uncodified portions of the bill the Legislature declared that, among its purposes in enacting the statute, was to ‘[c]larify the scope of the application of the [CUA] and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provided needed guidance to law enforcement officers.’ (Stats. 2003, ch. 875, § 1.) Additionally, the Legislature declared that a further purpose of the legislation was to ‘address additional issues that were not included within the act, and that must be resolved in order to promote the fair and orderly implementation of the act.’ (Id., § 1.) [f] To achieve the goal of ‘facilitating] the prompt identification of qualified patients and their designated primary caregivers,’ the Legislature established a voluntary program for the issuance of identification cards to such qualified patients. (§ 11362.71 et seq.) The Legislature extended certain protections to individuals who elected to participate in the identification card program. Those [887]protections included immunity from prosecution for a number of marijuana-related offenses that had not been specified in the CUA, among them transporting marijuana. ‘Subject to the requirements of this article, the individuals specified in subdivision (b) shall not be subject, on that sole basis, to criminal liability under Section 11357 [possession of marijuana], 11358 [cultivation of marijuana], 11359 [possession for sale], 11360 [transportation], 11366 [maintaining a place for the sale, giving away or use of marijuana], 11366.5 [mating available premises for the manufacture, storage or distribution of controlled substances], or 11570 [abatement of nuisance created by premises used for manufacture, storage or distribution of controlled substance].’ (§ 11362.765, subd. (a).) By authorizing a CUA defense to these other marijuana-related offenses, the Legislature furthered its goal of ‘address-ting] additional issues that were not included within the act, and that must be resolved in order to promote the fair and orderly implementation of the act.’ (Stats. 2003, ch. 875, § 1.)” (People v. Wright, supra, 40 Cal.4th at p. 93.)
Considering that the overall purpose of the MMP is to “broaden the scope of the CUA in order to facilitate greater access to [medical] marijuana” (City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 373 [68 Cal.Rptr.3d 656], italics added), it is impossible to believe section 11362.795 was designed to authorize a sentencing court to impose conditions of probation that divest probationers of rights protected by the CUA. But that is exactly what Justice Haerle’s analysis posits; as he states: “after the adoption of section 11362.795(a) in 2004, the suggestion that the 1996 CUA precludes a trial court from imposing a ‘no-marijuana’ probation condition is simply untenable.” (Maj. opn., ante, at p. 854, fn. 13.) If the purpose and effect of section 11362.795 is that which Justice Haerle attributes to it, the statute adds a provision restricting the right to use medical marijuana not found in the CUA, which would constitute an amendment to that act. (Knight v. Superior Court (2005) 128 Cal.App.4th 14, 22 [26 Cal.Rptr.3d 687].) As such, section 11362.795 would be unconstitutional, because the Legislature cannot amend a measure enacted by means of a voter initiative, such as Proposition 215, unless the initiative grants the Legislature authority to do so (Cal. Const., art. II, § 10, subd. (c); People v. Cooper (2002) 27 Cal.4th 38, 44 [115 Cal.Rptr.2d 219, 37 P.3d 403]), and Proposition 215 contained no such exemption from voter approval.
Justice Haerle’s belief that City of Claremont, supra, 177 Cal.App.4th 1153 demonstrates the constitutionality of his interpretation of section 11362.795 (maj. opn., ante, at p. 855 & fn. 15) is totally unsupported by the opinion. City of Claremont was an action to prevent the defendant from operating a medical marijuana dispensary anywhere within the city. The trial court concluded, and the Court of Appeal agreed, that the operation of such a dispensary without the city’s approval constituted a nuisance per se under the city’s municipal code and could properly be enjoined. For a variety of [888]reasons, all absent in the present case, the Court of Appeal rejected the defendant’s argument that the city’s action conflicted with the stated purpose of the CUA “[t]o ensure that seriously ill Californians have the right to obtain and use medical marijuana for medical purposes.” (§ 11362.5, subd. (b)(1)(A)). As the court pointed out, the CUA “do[es] not address zoning or business licensing decisions” (City of Claremont, at pp. 1172-1173) and “does not authorize the operation of a medical marijuana dispensary [citations], nor does it prohibit local governments from regulating such dispensaries” (id. at p. 1173).
Furthermore, because “the CUA expressly states that it does not supersede laws that protect individual and public safety . . .” (City of Claremont, supra, 177 Cal.App.4th at p. 1173; see § 11362.5, subd. (b)(2)), such as laws relating to public and private nuisances, the act “did not supersede the City’s moratorium on medical marijuana dispensaries, [which was] enacted as an urgency measure ‘for the immediate preservation of the public health, safety, and welfare.’ [Citation.]” (City of Claremont, at p. 1173.)
City of Claremont is predicated on the principle that “legislative enactments related to the subject of an initiative statute may be allowed” when they involve a “related but distinct area” (Mobilepark West Homeowners Assn. v. Escondido Mobilepark West (1995) 35 Cal.App.4th 32, 43 [41 Cal.Rptr.2d 393]) or relate to a subject of the initiative that the initiative “does not specifically authorize or prohibit.” (People v. Cooper, supra, 27 Cal.4th at p. 47; accord, County of San Diego v. San Diego NORML, supra, 165 Cal.App.4th at p. 830.) While the CUA does not conflict with or supersede the municipal actions challenged in City of Claremont, it could not more clearly conflict with the imposition of a criminal sanction on the use of medical marijuana. Justice Haerle’s suggestion that County of San Diego v. San Diego NORML supports his interpretation of section 11362.795 (maj. opn., ante, at p. 855, fn. 15) is mystifying. The provisions of the MMP upheld in that case, which established a medical marijuana identification card program, “amended provisions of the Health and Safety Code regarding regulation of drugs adopted by the Legislature, not provisions of the CUA.” (County of San Diego v. San Diego NORML, at p. 831, italics added.) It seems to me impossible to say that the CUA does not prohibit the imposition of any criminal sanction on the lawful use of medical marijuana, which is what Justice Haerle says section 11362.795 permits.
Finally, Justice Haerle’s reconstruction of section 11362.795 is really beside the point, because the procedure prescribed by that statute was never undertaken in this case. The court did not treat appellant’s request to be allowed to use medical marijuana while on probation as a request for confirmation that his use of marijuana satisfied the conditions of the CUA, [889]nor impose the challenged condition on that basis; and it therefore did not place any decision regarding that issue on the record and in the minutes of the court, as specifically required by section 11362.795. The court chose instead to avoid the question whether appellant’s use of medical marijuana was recommended or approved by a physician, as indicated by his medical marijuana identification card, and to rely entirely on his “voluntary” acceptance of the restriction, which the court made clear was the only way appellant could avoid a jail or prison sentence.
VI.
Because the trial court made no finding and there is no evidence that appellant’s right to use medical marijuana is not protected by the CUA, and restriction of that right has not been shown to serve any reformative or rehabilitative purpose, I would strike the challenged condition.
A petition for a rehearing was denied January 22, 2010, and the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied March 10, 2010, S179955. Kennard, J., Werdegar, J., and Moreno, J., were of the opinion that the petition should be granted.
All statutory references are to the Health and Safety Code unless otherwise indicated.
As I explain, post, at page 872, footnote 4, driving while under the influence of marijuana, which can be a crime even if the marijuana is used for medical purposes, could have been restricted as a tailored condition of appellant’s probation.
The majority strains to produce doubt about the validity of appellant’s medical marijuana card by suggesting that its recent date indicates it was obtained for improper reasons. However, medical marijuana cards must be renewed annually (§ 11362.745, subd. (a)), and there is no reason to assume from the date of the card that it was not a renewed card, or that appellant [872]obtained the card falsely or used it fraudulently. Further, neither the probation department nor the district attorney ever suggested that the date on appellant’s card indicated it may have been fraudulently obtained, and the court never focused its attention on the date or validity of the card.
Not all restrictions on the use of medical marijuana are barred by the CUA, because by its own terms nothing in the act “shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others” nor “to condone the diversion of marijuana for nonmedical purposes.” (§ 11362.5, subd. (b)(l)(C)(2).) Thus, for example, an offender believed to have used medical marijuana at a place or in a manner injurious to the health or offensive to the senses of any considerable number of persons, or which obstructs the free passage or use of any public park, can be restricted from doing so as a condition of probation, because preexisting law criminalizes such conduct. (Pen. Code, § 370; see also City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153 [100 Cal.Rptr.3d 1] (City of Claremont).) Similarly, if a sentencing court has reason to believe an offender may drive a vehicle while under the influence of medical marijuana it can restrict him or her from doing so, because the fact that a person charged under the Vehicle Code is entitled to use a drug under the laws of this state does not constitute a defense to such a violation. (Veh. Code, § 23630; see also Peck, supra, 52 Cal.App.4th 351, 362-363.) The condition imposed in this case is not so narrowly tailored, however, as it restricts any and all use of marijuana while appellant is on probation, regardless whether it is done for a medical purpose and the manner in which it is used.
Given the circumstances of this case, I need not address the interesting question whether a blanket restriction on the lawful use of medical marijuana or any other prescription drug can ever be imposed as a condition of probation; as where a prescribed medication is persuasively shown to make a particular defendant more likely than he or she would otherwise be to commit criminal acts, or where there is evidence use of the medication otherwise obstructs the reformation and rehabilitation of the defendant. It is enough for me to affirm that, at a minimum, a condition of probation restricting the use of a medication recommended or approved by a physician would have to be based on evidence demonstrating that the restriction served a legitimate penal purpose comparable to that relied upon in Peck, supra, 52 Cal.App.4th 351, which involved the use of marijuana for purposes that were not medicinal.
People v. Keller, supra, 76 Cal.App.3d 827, was disapproved by People v. Welch (1993) 5 Cal.4th 228, 237 [19 Cal.Rptr.2d 520, 851 P.2d 802] (Welch), to die extent it suggests that the reasonableness of a probation condition can be challenged on appeal in the absence of an objection in the trial court.
Justice Arabian, whose concurring opinion in Welch was joined in by Justice Kennard, suggests appellant’s challenge could be made even if he had not objected below, because he challenges the unlawfulness, not merely the unreasonableness, of the condition. (Welch, supra, 5 Cal.4th at p. 240 (conc. opn. of Arabian, J.).) Justice Arabian noted that, “[a]s the majority imply, in most instances the waiver rule will apply because the challenged probationary condition is simply unreasonable, not unlawful. [Citation.] Nevertheless, when legal error is demonstrable, countervailing considerations may perforce circumscribe the scope of the rule, and the absence of an objection may not always insulate the condition from appellate review or collateral attack.” (Id. at p. 240 (conc. opn. of Arabian, J.), italics added.)
Contrary to the intimation in the majority opinion (maj. opn., ante, at p. 851), our opinion in Brewer, supra, 87 Cal.App.4th 1298, also has little to do with the issues presented in this case. The defendant in Brewer was ordered to provide blood and saliva samples as a condition of probation on the authority of Penal Code section 296.1. We concluded that that statute did not permit imposition of the challenged condition but, because the condition was authorized by another statute, the error was harmless. The only aspect of Brewer at all relevant to this case is our recitation of the Lent test, which we held was satisfied.
None of the three other cases cited by Justice Richman (People v. Manriquez (1922) 188 Cal. 602 [206 P. 63]; People v. Valdez (1947) 82 Cal.App.2d 744 [187 P.2d 74]; People v. Tugwell (1917) 32 Cal.App. 520 [163 P. 508]) involved a condition of probation or even the denial of a right as to which the defendant was genuinely prejudiced.
The Attorney General also contends that, “[i]n the mind of a counseled criminal defendant entering into his plea bargain and in law, the judgment is the probation order containing the terms and conditions set by the court.” (Italics added.) Unlike the Attorney General, I cannot believe criminal defendants know or are told by counsel that any unspecified probation condition later imposed by the court would be unappealable because technically it is a component of the judgment.
Because Justice Haerle speaks only for himself on this issue and his interpretation of section 11362.795 is therefore not authoritative, it is appropriate to explain why the portions of his opinion and mine addressing this statute were not excluded from the opinions certified for publication. First, though section 11362.795 was enacted seven years ago, it has never previously been interpreted in a published opinion. The statute has, however, been interpreted and applied in a significant number of unpublished and therefore noncitable opinions. (Cal. Rules of Court, rule 8.1115.) Because published opinions construing the statute do not exist, and the unpublished opinions that do are easily obtained by interested lawyers and judges, the [885]unpublished opinions may influence the strategy of counsel and the decisions of trial and perhaps even appellate courts. The existence for a long period of time of an underground body of law on the meaning of section 11362.795 (to which some members of this panel have admittedly contributed) is injudicious. Second, the California Rules of Court justify publication of an opinion where it “[i]s accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law” (Cal. Rules of Court, rule 8.1105(c)(9)), and this is particularly the case where, as here, the opinion invokes a rule of law previously overlooked in published opinions (see id., rule 8.1105(c)(8)). Though Justice Haerle’s interpretation of section 11362.795 and mine have no precedential value, we publicize the exegetical problem, identify and advance conflicting views, and thereby underscore the need for and hopefully facilitate an authoritative judicial resolution.