California Court of Appeal Feb 24, 2015 No. E060081Unpublished
Filed 2/24/15 P. v. Hicks CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E060081
v. (Super.Ct.No. FWV1102758)
MAURICE SHAWN HICKS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller and
Cara D. Hutson, Judges. Affirmed.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Heather M.
Clark and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant and appellant Maurice Shawn Hicks pled
no contest to assault by means likely to produce great bodily injury (Pen. Code, § 245,
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subd. (a)(1), count 3), corporal injury to a cohabitant (Pen. Code, § 273.5, count 4), and
criminal threats (Pen. Code, § 422, count 5). A trial court imposed a five-year state
1480, fn. omitted (Hughes).) Under the CUA, the proscription against possession of
marijuana, in violation of Health & Safety Code section 113571, does not apply to a
patient who possesses marijuana for personal medical purposes upon the written or oral
recommendation or approval of a physician. (§ 11362.5, subd. (d).) The Medical
Marijuana Program (MMP) was designed to clarify the CUA and facilitate its
enforcement. (People v. Leal (2012) 210 Cal.App.4th 829, 838 (Leal).) Under the MMP,
a person who suffers from a “serious medical condition” may “register and receive an
annually renewable identification card that, in turn, can be shown to a law enforcement
officer who otherwise might arrest the program participant or his or her primary
caregiver.” (People v. Kelly (2010) 47 Cal.4th 1008, 1014 (Kelly).) In other words, the
identification card identifies the holder as a person authorized to engage in the medical
use of marijuana. (§ 11362.71, subd. (d)(3).) Participation in the MMP’s identification
card system is voluntary. (Kelly, supra, 47 Cal.4th at p. 1014.)
1 All further statutory references will be to the Health & Safety Code, unless otherwise noted.
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We initially address defendant’s argument that the probation department’s alleged
“blanket policy” of not permitting probationers to use medical marijuana violates the
provisions of the CUA. It is not clear that the probation department had such policy here.
Officer Belluscio testified that he “would have to research to see if that’s an actual
probation policy or if it is a directive that was distributed through our probation e-mail
system.” In any event, many courts “have affirmed probation terms that prohibit the
medical use of marijuana.” (Hughes, supra, 202 Cal.App.4th at p. 1480; see People v.
Moret (2009) 180 Cal.App.4th 839, 853 and People v. Brooks (2010) 182 Cal.App.4th
1348, 1352.)
Defendant next contends that his probation revocation “was actually based on [his]
failure to renew his medical marijuana card” after it had expired. He contends that his
failure to renew his medical marijuana card did not constitute a violation of his probation.
The probation condition at issue stated: “Neither use nor possess any controlled
substance without medical prescription. A physician’s written notice is to be given to the
probation officer.” Contrary to defendant’s claim, the court found him in violation of his
probation because he kept smoking his medical marijuana beyond the expiration of the
card, not because he failed to renew his card.
At oral argument, defendant argued that the expiration of a medical marijuana card
is not significant, since a doctor can give oral permission for a person to obtain and use
marijuana for medical purposes. Defendant is correct that a doctor can give a patient a
“written or oral recommendation” for use of medical marijuana. (§ 11362.5, subd. (d).)
Moreover, the expiration of a medical marijuana card is not necessarily significant, since
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possession of such card is voluntary. (§ 11362.71, subds. (a)(1) & (d)(3); County of San
Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 830.) However, what is
significant here is that defendant continued to possess and use marijuana after his medical
prescription had expired. Section 11357 criminalizes the possession of marijuana.
Section 11362.5, subdivision (d) exempts “qualified patients . . . ‘who obtain and use
marijuana for medical purposes upon the recommendation of a physician’” from criminal
prosecution. (People v. Mower (2002) 28 Cal.4th 457, 482.) In other words, for patients
with a medical prescription, the possession of marijuana “is no more criminal . . . than the
possession and acquisition of any prescription drug with a physician’s prescription.”
(Ibid.) Because defendant’s prescription had expired, he was no longer authorized to
possess or use marijuana. Moreover, unlike a person who possessed any prescription
drug, defendant was on probation, under a term that forbade him from possessing or
using any controlled substance without a medical prescription.
Defendant asserted, at oral argument, that there is no requirement that a patient
periodically renew a doctor’s recommendation regarding medical marijuana use. In
support of his argument, he cited the following passage from People v. Windus (2008)
165 Cal.App.4th 634 (Windus): “[W]e see nothing in the [CUA] that requires a patient to
periodically renew a doctor’s recommendation regarding medical marijuana use. The
statute does not provide . . . that a recommendation ‘expires’ after a certain period of
time.” (Id. at p. 641.) However, this passage merely points out the CUA itself imposes
no automatic expiration period on a doctor’s recommendation. (Ibid.) In the instant case,
defendant’s medical prescription had expired on its own on September 5, 2013.
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Furthermore, no evidence was presented—either through medical testimony or
documentation signed by a doctor—that defendant had a valid medical recommendation
for his use of medical marijuana on September 25, 2013, the day he admitted he was still
smoking marijuana. Windus does not support the notion that he could continue to use
marijuana after his doctor’s prescription had expired by its own terms. Moreover, it is
reasonable to require that a physician’s recommendation be current. Eliminating that
requirement would mean a defendant, having once obtained a medical marijuana
prescription good until a specified date, would remain covered by the protections of the
statute indefinitely. Nothing in Windus supports this proposition. We further note that,
in Windus, the defendant’s doctor testified on the defendant’s behalf, regarding his
current need for medical marijuana. (Id. at p. 638.) In contrast, there was no physician
testimony proffered here to show a current recommendation for defendant to use medical
marijuana.
Finally, the issue in this probation proceeding, unlike in Windus, was not whether
defendant had a right to present a CUA defense to a jury, but whether defendant violated
his probation. (See Windus, supra, 165 Cal.App.4th at p. 639.) Defendant had no valid,
unexpired prescription. There was also no testimony presented that he was even
continuing to use marijuana for medical purposes.
Ultimately, the court did not abuse its discretion in revoking defendant’s
probation. Although the court based its finding on defendant smoking marijuana beyond
the expiration of the medical marijuana card, rather than the actual prescription, we
affirm the result because the task of an appellate court is to “review the correctness of the
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challenged ruling, not the analysis used to reach it.” (In re Baraka H. (1992) 6
Cal.App.4th 1039, 1045.) Defendant’s unlawful possession and use of marijuana clearly
supported the court’s conclusion that his conduct constituted a willful violation of his
probation.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST Acting P. J.
We concur:
KING J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court did not abuse its discretion in revoking the defendant's probation because he continued to use marijuana after his medical prescription had expired, constituting a willful violation of his probation terms.
Issues
Did the trial court err in revoking probation based on the defendant's use of medical marijuana?
Did the defendant's continued use of marijuana after his medical prescription expired constitute a willful violation of probation?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Because defendant’s prescription had expired, he was no longer authorized to possess or use marijuana.”
“Defendant’s unlawful possession and use of marijuana clearly supported the court’s conclusion that his conduct constituted a willful violation of his probation.”