P. v. Perry CA1/2 ( 2013 )

Filed 4/3/13 P. v. Perry CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A134385
v.
BLAINE PERRY, (Napa County
Super. Ct. No. CR158209)
Defendant and Appellant.
Blaine Perry appeals from an order denying his post-judgment motion under
Health and Safety Code section 11362.7951 to modify his probation conditions to allow
his use of medical marijuana under the Compassionate Use Act of 1996 (CUA)
(§ 11362.5) and Medical Marijuana Program (MMP) (§ 11362.7 et seq.). We affirm the
order.
1
All undesignated section references are to the Health and Safety Code.
Section 11362.795 provides in pertinent part: “(a)(1) Any criminal defendant who
is eligible to use marijuana pursuant to Section 11362.5 may request that the court
confirm that he or she is allowed to use medical marijuana while he or she is on probation
or released on bail.
“(2) The court’s decision and the reasons for the decision shall be stated on the
record and an entry stating those reasons shall be made in the minutes of the court.
“(3) During the period of probation or release on bail, if a physician recommends
that the probationer or defendant use medical marijuana, the probationer or defendant
may request a modification of the conditions of probation or bail to authorize the use of
medical marijuana.
“(4) The court’s consideration of the modification request authorized by this
subdivision shall comply with the requirements of this section.”
1
BACKGROUND
Commitment offense. In an April 10, 2009 negotiated disposition of an amended
complaint in Marin County Superior Court, Perry pled guilty to one count of assault with
force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) in return for
dismissal of counts for corporal injury on a cohabitant and making terrorist threats (Pen.
Code, §§ 273.5, subd. (a), 422). All charges involved an attack on a woman identified
confidentially as Jane Doe, and a Harvey waiver (People v. Harvey (1979) 25 Cal. 3d
754) allowed consideration of the dismissed counts at sentencing.
Sentencing on May 27, 2009, proceeded with little documentation of the crimes.
Perry had waived a preliminary hearing, and both sides waived a presentence report that a
referral to probation had not yet produced. Letters from Doe and her mother focused on
victim impact, not the crime facts.
Deputy District Attorney A. J. Brady stated: “With regard to the facts of this case,
this case settled before preliminary examination, so I don’t know how much the Court
knows or remembers about it. I would like to just give a summary. The confidential
victim in this case Mr. Perry had formerly had a dating relationship, although that dating
relationship had terminated prior to the incident date.
“On the incident date [she] was contacted because the defendant showed up to
work severely intoxicated. He is a care provider, a job which the confidential victim
arranged for him to have. She’s also a care provider for people with disabilities.
Apparently, he showed up intoxicated. She was contacted because she is his supervisor.
“She picked him up. On the ride home to her residence in San Rafael the
defendant began making threatening statements. Specifically through the ride between
being picked up and to the confidential victim’s apartment, the defendant indicated that
he was going to get people to shoot up the place, call his friends. He was calling, it
appeared, to the confidential victim, that he was calling people on cellphones saying they
could come over and shoot her, shoot up the place.
“When they arrived back at the apartment, she ran [inside], and he began making a
scene outside of the apartment, again similarly appeared to be talking on the phone
2
making those same sort of threats. Eventually, in order to pacify him, she opened up the
front door of the apartment in order to pack up his stuff because they had broken up, and
she wanted his stuff out of the house.
“Inside the bedroom the defendant began throwing items around, including
compact disks. Some of those . . . struck the confidential victim. The defendant then
pushed the victim on the shoulders onto the bed. He then straddled her with one leg
between her legs, and one leg on the outside and began choking her. According to . . . an
interview I conducted with her, he indicated that at that time he was saying he should kill
her or he should rape her. But actually he needed a ride back home later on so he wasn’t
going to rape her right then. And he also indicated that he should call his friends to come
up and rape her. And the victim indicated she was having difficulty breathing as a result
of that.
“After the defendant let go, again the victim tried to move him out of their
residence and continued to move stuff out of the apartment. Once they were both outside
of the apartment, she locked the door behind her, and again the defendant put his arm
around her, this time in sort of a headlock maneuver where her head was in the nook of
his arm, and again choked her actually lifting her up off the ground at this point. She ran
away and got in the car and drove off and called the police.
“The victim was quite distraught both at the scene and has been since. I think that
the Court probably has a good feel for that from the victim impact letters, as the impact
on her has been tremendous.”
Brady then advanced his sentencing preferences, advising the court about prior
arrests and other sentencing factors he could, given lack of a written report evaluation,
noting that Perry’s insistence on proceeding without one might deprive the court of
factors favorable to the defense. In proposing conditions of probation, and again
lamenting the lack of formal evaluation, Brady proposed: “But being that I at least know
that he showed up on this particular day so intoxicated he needed to be taken away from
his place of work, that the defendant not use, possess, or transport alcohol or illegal
substances including prescribed marijuana without being authorized by the Court. And
3
similarly, in order to enforce that, the defendant be required [to] submit to chemical
testing at the request of any peace officer or probation officer.”
Defense counsel Kimberly Fitzgerald did not dispute any of Brady’s factual
representations but added some of her own, saying her client was remorseful, accepted
responsibility, had had time in custody to reflect on what happened, was young at age 23,
would use a 52-week domestic violence course to “help him deal better with relationships
in the future,” would improve his parenting skills for a small son, did not intend to see or
contact Doe again, and planned to live in Sonoma.
On the facts of the charges, Fitzgerald added, referencing police records: “He’s—
to just take a moment to address some of the facts that the District Attorney discussed in
this case, the facts as laid out sound really bad. And I think there is always . . . two sides
of a story. And this is not to minimize or condone anything that happened, but just to try
to give the Court some perspective.
“There were photographs taken by the police officers in this case. There is no
injury. There is no alleged bite mark on her cheek. There’s no injury showing that.
There’s no broken skin. There’s no scratch. There is no redness really around the neck.
And there’s—the District Attorney mentioned that the fact that he had indicate that he
was going to kill her or have friends kill her or rape her, what she first told the police
after the incident . . . was that he was going to kill her. Then nine days later when she
talked to the District Attorney, then it changed to that he was going to rape her, have his
friends come and rape her. So, there’s—there’s some differences in—in her story.[2]
“She’s very young. She’s 20 years old. She just came out of a three year
relationship. There’s—there’s something that between what was stated to the police
2
A record augmentation includes a statement of probable cause dated March 25,
2009, which is evidently the document defense counsel referenced. It recites: “Perry and
the victim have been dating for approx. 11/2 months and living together for 3 weeks.
During an argument, Perry pushed the victim onto a bed and began choking her. Perry
slapped the victim in the leg. Perry later bit the victim on the cheek, causing redness to
her cheek. Earlier, Perry threatened to shoot the victim. The victim is in fear for her
life.”
4
officers and—and the District Attorney and what the photographs and evidence show that
everything does not really quite seem to—to match up in this case.”
Perry’s briefing can be construed as taking issue with reliance by the Attorney
General on Brady’s representations about the charges, at least as to Perry’s intoxication,
but the reliance is proper. Unsworn statements by counsel do not ordinarily constitute
evidence (County of Alameda v. Moore (1995) 33 Cal. App. 4th 1422, 1426), but these
attorney representations, on both sides, were offered in lieu of a presentence report and,
while not formally stipulated as such, were meant for the court to rely on as evidence.
The court also understood the representations that way, expressly relying on what had
been said, and prefacing its ruling by saying: “Well, I am at somewhat of a disadvantage
. . . without a probation officer’s report, but I think between what you both have said, as
well as the letter from the victim and her mother, I think I have a fairly good
understanding of—of the underlying facts.” Lack of objection by either attorney to the
other’s representations further justifies reliance on the statements. (Cf. People v. Medina
(1995) 11 Cal. 4th 694, 731.)
The court suspended imposition of sentence and placed Perry on four years’
probation, with terms that he: serve nine months in local custody; not contact the victim;
participate in any treatment or counseling directed by the probation officer; and not use or
possess any “illegal substances, including prescribed marijuana, unless specifically
authorized by the court.” The court explained in part: “I do believe that given what I
understand to be the fact, that as this event unfolded—as it began, I should say, the
defendant was under the influence, apparently, of alcohol or some other substance. I
think the terms that relate to that are appropriate.”
In June 2011, after Perry moved to Napa, the case was transferred to Napa County
on motion of the probation department (Pen. Code, § 1203.9).
Probation violation. On November 10, 2011, a petition to revoke probation was
filed in Napa County Superior Court alleging that Perry “[f]ailed to successfully complete
a 52 week domestic violence anger management counseling program” and “[s]ubmitted a
positive drug test on August 29, 2011 and November 3, 2011 for THC” (People v. Rigo
5
(1999) 69 Cal. App. 4th 409, 413 [tetrahydrocannabinol (THC) is the primary intoxicating
ingredient in marijuana]). Probation was denied summarily that same day, and counsel
was appointed for him for entry of his denial at a hearing on November 21. His counsel
informed the court at that hearing that Perry said he had “at some point now, signed up
for his anger management and has begun that,” and Perry had already filed a motion,
acting as his own counsel, that he be allowed to use medical marijuana under the CUA
while on probation. The motion did not include any medical authorization, or sworn
particulars. It presented general information printed from the Web on spondylolisthesis,
a medical condition described as one or more vertebrae of the spine shifting forward or
backward, copies of provisions of the CUA and MMP and the decision in People v.
Tilehkooh (2003) 113 Cal. App. 4th 1433 (Tilehkooh), plus written instructions Perry had
gotten from Kaiser Permanente on exercises to do for the condition.
At a hearing on December 21, 2011, Perry admitted the probation violation,
agreeing to the petition’s request that probation be reinstated with a further 90 days of jail
stayed pending completion of a 52-week program. He had begun an anger management
program, Healing in Progress, on a referral from probation. Defense counsel mentioned
the violation as being failure to complete such a program, but nothing in the record shows
that Perry’s admission to the probation violation was limited to that ground. On the
pending pro per request to use medical marijuana, defense counsel represented that Perry
had a medical marijuana card in Marin County that satisfied probation there, but that his
probation officer in Napa County required that he get court approval. The court noted
lack of a doctor’s recommendation with the motion, and the probation department was
recommending denial because Perry had not provided medical marijuana documentation
and, in fact, had provided documents showing that his primary care provider
recommended exercises and prescribed naproxen as need for pain, but not marijuana.
The court ordered the request “[d]enied without prejudice” and urged Perry to get proper
documentation. Perry does not challenge that denial on appeal.
Second medical marijuana request. Perry filed a second pro per request on
December 21, 2011, and the matter was heard on January 6, 2012. One of the documents
6
filed with the court was a memorandum from probation that discussed none of Perry’s
showing but recommended denial because the minute order denying his original request
had been denied “without prejudice.” No one relied on that absurd bit of circular
reasoning. The focus, rather, was on the showing made.
The showing, treated cumulatively to the first, included a “Therapeutic Cannabis
Recommendation” of May 26, 2011, by Richard Lenson, MD, of Compassionate Health
Options, reciting in part that Perry was examined and found to have “a medical condition
that in my professional opinion would benefit from the use of medical cannabis.” The
entire document is printed, except for the patient, date, signature, and a cryptic diagnosis
of “724.2, seasonal allergies.” The “724.2” is not explained in the record, but the parties
agree that it is medical code for lumbago, i.e., lower back pain. (See Find-A-Code,
[as of Jan. 18,
2013].)
A second new document is a December 21, 2011, letter from Huma Imtiaz Sadiq,
MD, of The Permanente Medical Group, Inc., in Vallejo. Naming Perry, it states: “The
above named patient is seen for chronic back pain and is diagnosed with mild vertebral
body wedging and that might have led to the disc bulge at L5-S1 per MRI. Patient has
been using NSAIDs[3] for pain control and also being referred for the physical therapy.”
Deputy District Attorney Jodi Dell urged denial, reasoning in essence that: the
recommendation was “questionable” since it was not from a doctor who was regularly
treating Perry for his condition; his “Kaiser doctor” had not said that marijuana was
needed; no other doctors treating Perry, and nothing in his initial 30 pages of material,
had urged marijuana use; with Perry required to do drug testing on probation, it would be
“problematic for him to be able to use medical marijuana and submit to testing”; and
marijuana was still unlawful under federal law.
3
We are hindered once more by lack of record explanation for a term used below,
but a cursory search of the Web for “NSAIDs” reveals sites that show it as an acronym
for non-steroidal anti-inflammatory drugs—meaning, for our purposes, conventional
medicines, not marijuana. The court’s later reference to prescribed “anti-inflammatories”
as distinct from marijuana, shows that the court shared that understanding.
7
Perry, acting as his own counsel, presented no declarations or other sworn
testimony to bolster his showing, but said he was “no longer eligible for Kaiser,” his
mother’s insurance plan, because he had turned 26 years old, that his own part time work
at a store did not provide health benefits, and that medical marijuana was “the only
medication that I will be able to seek out.” Queried by the court whether marijuana
would be more expensive than his regular doctor’s recommendation of “anti-
inflammatories, like Advil, and Alleve [sic], and things like that,” Perry offered (still
unsworn): “The pills that she was giving me and stuff, because just regular Advil or
Tylenol I’ve take [sic] before when I was younger when I first started going to Kaiser for
my back problem, and the ones they’re giving me, they either made me sick or they gave
me intense heartburn. So they kept switching me from medications, and they started
putting me on these. But the same thing is happening. It’s just not—it’s not really taking
care of the pain. It’s just sub—I mean in the past they haven’t worked, and I don’t want
to take Vicodin. I don’t want to get started on something like that. [¶] She—my doctor
agrees with me. I’ve talked to her about my use of medical marijuana. She doesn’t
promote it. She doesn’t deny it. [Sic.] She just, you know, if it helps me complete my
daily routines, and you know, go to work, and be able to stand, and then come home and
be able to take care of my chores at home, then she finds that it’s okay for me to do it if I
feel that it’s fine.”
The court ruled: “I’m going to follow the recommendation of probation. I’m
going to deny your request. I’m just not satisfied with what you’ve presented here that
there is a sufficient basis for me to allow you to consume medical marijuana during your
probationary period. [¶] So the request is denied.”
DISCUSSION
Leal announced “a three-step inquiry into limiting CUA use of marijuana by a
probationer. First, we examine the validity of any CUA authorization; second, we apply
the threshold Lent test [(People v. Lent (1975) 15 Cal. 3d 481, 486 (Lent))] for interfering
8
with such authorization;[4] and third, we consider competing policies governing the
exercise of discretion to restrict CUA use.” (People v. Leal (2012) 210 Cal. App. 4th 829,
837 (Leal).) Initially, we address uncertainty about some of Perry’s appellate arguments
in the wake of Leal.
I. Issues Resolved by Leal
Perry’s initial briefing raised several arguments that our opinion in Leal resolves
against him. We granted Perry leave to file a letter brief on the impact of Leal, and have
received as well a response from the Attorney General, and a very recent reply by Perry,
but Perry’s supplemental briefing leaves unclear whether he accepts Leal’s holdings on
his initially briefed issues. He neither repeats nor adds to them, but does not concede or
withdraw them, either. So out of caution, we briefly adhere to the pertinent holdings in
Leal.
Much of Perry’s briefing centers on section 11362.795, a provision in the MMP
that allows probationers like himself to seek court confirmation of CUA authorization.
He argues that the section, when properly read, does not authorize a court to go beyond a
facially valid CUA authorization to deny confirmation based on Lent; alternatively, he
argues if the provision can be read that way, it constitutes an unconstitutional restriction
by the Legislature of a voter initiative, the CUA. We rejected those arguments in Leal,
holding in essence that a trial court’s long-established power to ban otherwise lawful
activity under the Lent test is inherent, not dependent on authority conferred by the CUA
4
“Under the Lent test and settled review principles: ‘We review conditions of
probation for abuse of discretion. [Citations.] Generally, “[a] condition of probation will
not be held invalid unless it ‘(1) has no relationship to the crime of which the offender
was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or
forbids conduct which is not reasonably related to future criminality . . . .’ [Citation.]”
[Citation.] This test is conjunctive—all three prongs must be satisfied before a reviewing
court will invalidate a probation term. [Citations.] As such, even if a condition of
probation has no relationship to the crime of which a defendant was convicted and
involves conduct that is not itself criminal, the condition is valid as long as the condition
is reasonably related to preventing future criminality. [Citation.]’ [Citations.]” (Leal,
supra, 210 Cal.App.4th at p. 840.)
9
or the MMP, and that neither enactment explicitly or implicitly terminates that power.
(Leal, supra, 210 Cal.App.4th at pp. 846-849.)
Perry also argues that survival of the Lent test in this context renders
section 11362.795 (or modification under Pen. Code, § 1203.3) “illusory” and
impermissibly allows a trial court to second-guess voter intent and the opinion of an
authorizing physician. Not so. We held in Leal that the third-step inquiry means that a
court finding both CUA authorization and satisfaction of the Lent test cannot
automatically deny confirmation; it must go on to balance the competing public policy
interests. (Leal, supra, 210 Cal.App.4th at pp. 843-844.) This exercise of discretion also
does not constitute a prohibited second-guessing of voters or physicians (id. at p. 844), a
prohibition more properly invoked during the step-one inquiry into valid authorization
(id. at p. 839). Perry argued in his initial briefing that the Lent test, usually applied at an
initial grant of probation, should not apply to post-judgment motions to modify, but we
cannot share his view given that the same competing interests arise in both situations.
Perry invokes language in Tilehkooh, supra, 113 Cal.App.4th at page 1444,
broadly suggesting that prohibiting CUA-authorized use of marijuana serves no
rehabilitative purpose. We examined that language in Leal, found it to be dictum, and
disagreed, further, with the notion that prohibiting CUA use cannot serve a rehabilitative
purpose. (Leal, supra, 210 Cal.App.4th at pp. 849-850.)
The Attorney General’s initial briefing seconded the reasoning of the prosecutor
below that continuing illegality of marijuana possession under federal law is enough to
justify CUA use as conduct that is in itself criminal, and her letter brief does not mention
or concede that Leal expressly rejected that notion. (Leal, supra, 210 Cal.App.4th at
pp. 840-841 & fn. 3.) We adhere to Leal on that point as well.
II. Step One Issues
Beyond the federal-illegality argument just noted, Perry faults prosecutor Dell’s
reasoning that Dr. Lenson’s marijuana recommendation was “questionable” since it was
not from a doctor who regularly treated Perry and since no “Kaiser doctor” or other
regular provider had said anything about marijuana being needed. Leal embraces the
10
notion that, “at the step-one stage” of inquiry into the validity of a CUA authorization to
use medical marijuana, courts should not second-guess facially valid recommendations or
the wisdom of the voters in allowing marijuana use for conditions short of serious
illnesses. (Leal, supra, 210 Cal.App.4th at pp. 839-840 [discussing cards issued under
the MMP].) On the other hand, Leal holds that, at the step-three stage of balancing
competing public policies of medical needs against rehabilitative needs, courts may—and
must—take into account “medical need and efficacy based upon evidence: the
defendant’s medical history, the gravity of his of her ailment, the testimony of experts or
otherwise qualified witnesses, conventional credibility assessments, the drawing of
inferences, and perhaps even medical opinion at odds with that of the defendant’s
authorizing physician.” (Id. at p. 844.)
Here, the prosecutor’s argument that Perry’s physician recommendation was
“questionable” due to lack of corroboration by other medical providers would have been
in error if applied to the step-one, rather than step-three, stage of inquiry, but we do not
see that the court ultimately did any step-one second-guessing. The court did not confine
its ruling to the authorization’s validity, but heard all of the evidence and arguments and
ruled, apparently more broadly, that Perry produced an insufficient “basis” for allowing
him to use medical marijuana.5 As Leal cautioned: “We do not suggest that the record
must reveal that the three steps of inquiry . . . were considered and resolved in lockstep
progression. Further, a balancing-of-needs finding against a defendant is . . . necessarily
implied in a probation condition limiting or disallowing CUA use of marijuana.” (Leal,
supra, 210 Cal.App.4th at p. 845, fn. 5.)
We therefore proceed, as the Attorney General’s supplemental briefing does, on
the conclusion that the court found a facially valid authorization.
5
Because it does not appear that the court rested its decision on any problem in
the validity of the authorization, we need not dwell on Dell’s concern that Dr. Lenson
was not a regular medical care provider for Perry.
11
III. Step Two Issues
Perry argues that there was an insufficient nexus, under Lent, between restricting
his use of medical marijuana, and either his commitment offense or preventing future
criminality. There was no argument or express ruling on this point, but the court, by
finding an insufficient “basis” to allow medical marijuana use, implicitly found that Lent
was satisfied. The record supports the ruling.
Perry’s claim of insufficient nexus rests in part on the idea that his admission to
violating probation did not included the ground that he twice tested positive for THC.
The premise is faulty. As already noted in the background part of this opinion, while
there was mention at the admission hearing of Perry’s failure to take the 52-week anger
management course and no correlative mention of the positive THC tests, nothing in the
ensuing admission of probation violation, or the advisements or other colloquy leading to
it, limited the admission to the former ground, and the petition charged both. The minute
order also states, in plural language, that Perry admitted “the terms and conditions of
[p]robation.” We would expect some limitation in the record if Perry intended his
admission to be limited in the way he now suggests.
Perry also urges that, since his guilty plea to the underlying offense came before a
preliminary hearing, and sentencing proceeded without a presentence report, the record
lacks sufficient evidence of any nexus between his offense and prohibiting his use of
medical marijuana. This premise, too, is faulty. As set out in the background part of this
opinion, that very paucity of documentary evidence prompted counsel on both sides to
make oral representations to the court about the pertinent facts of the charges, as well as
various facts bearing on Perry’s criminal and personal history, views, and acceptance of
responsibility. Both sides clearly meant for the court to rely on their representations in
lieu of a report, and raised no objections or corrections to the other’s statements. Then
the court stated in ruling that its “understanding of . . . the underlying facts” was based on
victim letters and “what you both have said.” Having induced the court to rely on the
oral representations, and then acceded to the court doing so, Perry cannot complain now
that they were unsworn or lacked a formal stipulation to be taken in lieu of evidence.
12
With those premises properly deflated, resolution of Perry’s nexus arguments is
straightforward. Taking first the underlying offense, the showing was that Perry showed
up at work that morning in a “severely intoxicated” state, so intoxicated that Doe, as his
supervisor, had to escort him home. On that car ride Perry began a series of threats that
would include having her raped and killed by his friends, whom he acted as though he
was calling on his cell phone. She was also brutally attacked physically and choked, was
afraid for her life, and in the end was devastated emotionally by the threats and physical
assaults. And while it is true that there was no information whether Perry had a frequent
or chronic problem with intoxication, he obviously had a major problem that morning,
with violent and devastating effects. There was no showing, in fact, that anything besides
intoxication drove him to that abusive and violent state. And while Perry is correct to
observe that we cannot tell from the record just what the intoxicating substance or
substances were, the court could reasonably conclude that any kind of intoxication would
have increased the risk, and thus that prohibiting marijuana use bore a sound nexus to the
offense.
Alternatively, there was also a nexus to future criminality. Perry’s points about
the lack of evidence that he had a chronic or repeated intoxication problem hold more
sway here, because it is possible to speculate—however unlikely it may be—that his
attack on Doe was the product of an isolated, unprecedented episode of substance abuse.
Putting that aside, however, it remains that Perry admitted to probation violations
alleging that he tested positive for THC on August 29 and November 3, 2011, thus
directly demonstrating a willingness to break the law through marijuana use. We are not
impressed by his argument that this is not fair game because the authorization from
Dr. Lenson he would later produce showed an issuance date of May 26, 2011, and
expiration date of May 26, 2012, encompassing both of the alleged violation dates. He
cites his attorney’s statement at the December 21 admission hearing, about possible
uncertainty in that probation in Marin County was satisfied with Perry having a medical
marijuana authorization, whereas when he moved to Napa County, probation insisted on
his having court approval. One problem with this excuse is that the court in Marin
13
County had forbidden possession or use of any “illegal substances, including prescribed
marijuana, unless specifically authorized by the court.” (Italics added.) Thus even if we
could accept counsel’s unsworn remarks as evidence, Napa County probation’s position
was the correct one; a mere authorization was not enough to avoid violating probation.
Another problem with his excuse is that, by admitting the violation of probation, Perry
forfeited any chance to assert that excuse.
The Lent test is satisfied on this record, and thus provides threshold discretion for
the court to interfere with authorized medical marijuana use.
IV. Step Three Issues
That brings us to step three under Leal. Finding discretion under the Lent test to
interfere with a probationer’s medical use of marijuana “does not mean that the court
must impose an interfering condition, for discretionary action is, by definition, something
permitted, not required.” (Leal, supra, 210 Cal.App.4th at p. 843.) Discretion is abused
when the determination is arbitrary or capricious, or exceeds the bounds of reason, all of
the circumstances being considered. (Ibid.) “The step-three exercise of discretion is vital
in limiting medical use of marijuana, for it entails a unique balance of competing public
policies. On one hand, the step-one conclusion that a defendant has CUA authorization
implicates a voter-compelled policy that qualified patients be allowed to alleviate medical
problems through the use of marijuana. On the other hand, the step-two conclusion that
the relationship of that lawful use to the crimes the defendant committed, or his or her
future criminality, raises a competing policy consideration: the need to rehabilitate the
defendant and protect the public during his or her release on probation. The resolution of
these competing policies necessarily requires weighing the needs of one against the other
before deciding whether and how much to limit the lawful conduct.” (Id. at p. 844.) To
repeat our earlier explication: “The requisite balancing contemplates a judicial
assessment of medical need and efficacy based upon evidence: the defendant’s medical
history, the gravity of his or her ailment, the testimony of experts or otherwise qualified
witnesses, conventional credibility assessments, the drawing of inferences, and perhaps
even medical opinion at odds with that of the defendant’s authorizing physician.” (Ibid.)
14
Step three is the weakest link for Perry. With the record showing a need to limit
or prohibit marijuana use for his rehabilitation and for protection of the public, it was
incumbent on him to show, as only he could, that he had a countervailing need to use
marijuana for medical purposes. Perhaps because he was acting as his own counsel and
unfamiliar with evidentiary requirements, or perhaps not, his showing of need was
exceedingly weak. Accepting that his medical records for treatment of back pain
established that he suffered from spondylolisthesis in his lower back, the degree of his
discomfort was not established. Perry did not submit declarations or testify to the matter.
His CUA authorization only established that one physician felt that he could derive
“some unquantified ‘benefit from the use of marijuana’ (§ 11362.5, subd. (b)(1)(A)) to
help alleviate” his back condition.6 (Leal, supra, 210 Cal.App.4th at p. 845.) No
evidence showed the degree of his discomfort, or even whether he had ever gotten any
relief for it from marijuana, such as when he used it in admitted violation of probation.
Perry’s unsworn statements at the hearing were not evidence. Unlike the May 2009
sentencing for the underlying offense, there was no implicit understanding by the court
and parties at this hearing that unsworn statements were to be accepted in lieu of
evidence.
There was also no proof—just the non-evidence of his own statements—that Perry
could not get effective relief from medications other than marijuana. The material he
printed from the Web on spondylolisthesis (assuming it was somehow subject to judicial
notice) described the condition as often causing no suffering and, while sometimes
problematic, “curable” by simply taking good care of oneself. Another excerpt read, as
to lower back pain: “[T]here are some easy exercises with which you can easily treat the
pain and reduce it up to a major margin. The best treatment for the back pain is
considered as the back stretching and body stretching exercises. These exercises can give
6
Perry makes no effort to justify medical marijuana use to alleviate the “seasonal
allergies” also diagnosed in Dr. Lenson’s authorization, but in any event, Perry presented
no evidence, medical records, or even unsworn statements, about that supposed
condition.
15
an effective relief to the patient without any hap hazard [sic].” Medical records Perry
furnished of a November 2011 appointment he had with Dr. Sadiq showed that he was
instructed to do exercises, schedule an appointment with physical therapy, and take
“Naproxen (NAPROSYN)” tablets twice a day as needed for pain. His December 2011
letter from Dr. Sadiq repeated that he had been referred to physical therapy and added
that he had been “using NSAIDs for pain control.” The court, responding to that letter
and to Perry’s (unsworn) claim of having lost medical coverage, observed that such anti-
inflammatories, like Advil and Aleve, were surely less expensive than marijuana.
The court’s implicit step-three finding that the need for medical marijuana was
outweighed by the need for rehabilitation and protection of the public is overwhelmingly
supported.
V. “Reasons” for the Decision
The court’s oral ruling was: “I’m going to deny your request. I’m just not
satisfied with what you’ve presented here that there is a sufficient basis for me to allow
you to consume medical marijuana during your probationary period. [¶] So the request is
denied.” Perry argues that this failed to satisfy section 11362.795, subdivision (a)(2),
which provides: “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.”
(See fn. 1, ante, for fuller context.)
The decision, but not reasons, are reflected in the court’s minute order, and failure
to include the reasons was certainly in breach of the provision. Whether the ruling as
orally rendered failed to adequately state “reasons” may be debatable, as is the Attorney
General’s position that Perry’s failure to raise any objection on this basis below waived
the issue for appeal, but we need not decide. Any error or errors were harmless.
Generally, a court’s failure to give adequate or proper reasons, in violation of
statute, is subject to review for harmless error. (People v. Osband (1996) 13 Cal. 4th 622,
729-730 [no reasonably probability a more favorable sentence would have been imposed
in the absence of partly faulty reasons]; People v. Price (1991) 1 Cal. 4th 324, 492 [not
reasonably probable that the trial court would have chosen a lesser sentence had it known
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that some of its reasons were improper]; contrast People v. Bonnetta (2009) 46 Cal. 4th
143, 148-152 [no harmless error analysis for failure to set forth reasons, in the minutes.
for dismissing a strike allegation in the furtherance of justice under Pen. Code, § 1385].)
Perry does not argue that error he raises is reversible per se but disagrees with the
Attorney General’s view that any error was harmless. He argues that lack of a complete
statement of reasons “adversely impacted” him because it leaves us to “speculate exactly
how his showing could be viewed as insufficient, which is precisely why the statute
squarely places the onus on the trial court to specify the reasons for its decision.” It is
true that one reason for requiring a statement of reasons is to enable meaningful review
(People v. Garcia (1995) 32 Cal. App. 4th 1756, 1770), but as our analysis above shows,
the record does not leave us to “speculate” what shortcomings the court found in Perry’s
showing. The evidentiary shortcomings were objectively clear, without need to wonder
what subjective concerns, like credibility, might have further influenced the court. And
finally, the existence of the court’s comments at the hearing makes their lack of inclusion
in the minutes harmless for review purposes.
We hold to be harmless any error or errors in the expression of reasons.
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DISPOSITION
The order of January 6, 2012, denying Perry’s second request to use medical
marijuana while on probation is not shown to be an abuse of discretion, and the order is
affirmed.
_________________________
Kline, P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
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