People v. Tilehkooh, C040485.

• Decision Date: 08 December 2003
• Docket Number: No. C040485.,C040485.
• Citation: 7 Cal.Rptr.3d 226,113 Cal.App.4th 1433
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Darius TILEHKOOH, Defendant and Appellant.

7 Cal.Rptr.3d 226

113 Cal.App.4th 1433

The PEOPLE, Plaintiff and Respondent, v. Darius TILEHKOOH, Defendant and Appellant.

No. C040485.

Court of Appeal, Third District.

December 8, 2003.

Allen G. Weinberg, Santa Monica, and Derek K. Kowata for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, Clayton S. Tanaka and Alan Ashby, Deputy Attorneys General, for Plaintiff and Respondent.

BLEASE, Acting P.J.

Following a consolidated court trial and hearing defendant Darius Tilehkooh was found guilty of the misdemeanor offense of possession of marijuana and found that he violated his probation on the basis of evidence he possessed and used marijuana. His probation was revoked. His defense to both charges under Health and Safety Code section 11362.5 was rejected.¹ The misdemeanor conviction was reversed on appeal to the appellate division of the superior court and only the appeal of the probation violation is before us.²

Section 11362.5 was added to the Health and Safety Code by Proposition 215, the "Compassionate Use Act of 1996," adopted by the electorate in 1996. (Prop. 215, § 1, as approved by voters, Gen. Elec. (Nov. 5, 1996).) Its purpose is "[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes" upon the recommendation of a physician. (§ 11362.5, subd. (b)(1)(A).) The section applies to "any ... illness for which marijuana provides relief."³ (Ibid.) In aid of this purpose "patients ... are not subject to criminal prosecution or sanction," and sections 11357 (possession of marijuana) or 11358 (cultivation of marijuana) shall not apply. (Respectively, subds.(b)(1)(B) & (d).) The California Supreme Court has analogized the use of marijuana pursuant to section 11362.5 to the use of a prescription drug. (People v. Mower (2002) 28 Cal.4th 457, 482, 122 Cal.Rptr.2d 326, 49 P.3d 1067 (hereafter Mower).)

The trial court ruled that section 11362.5 did not apply to defendant because he could not satisfy a medical necessity defense.⁴ We disagree because that defense is not the measure of the right to obtain and use marijuana for medical purposes granted by section 11362.5.

On appeal the People claim that section 11362.5 is not a defense to a revocation of probation and that, in any event, the possession of marijuana violated a condition of defendant's probation that he obey the criminal laws of the United States.

We conclude that defendant may assert section 11362.5 as a defense to the criminal sanction of revocation of his probation where, as here, there is no claim that his conduct endangered others or that he diverted marijuana for nonmedical purposes. (See § 11362.5, subd. (b)(2)). Nor does a probation condition which prohibits the lawful use of a prescription drug serve a rehabilitative purpose.

We also conclude the People may not evade section 11362.5 on the ground defendant violated a probation condition that he obey the federal criminal marijuana law. It is only as an offense against the State laws that a federal criminal law may be given effect. Since the federal marijuana law is given effect only by its incorporation in the state law as a probation condition, it is subject to the state law defense of section 11362.5.

We shall reverse the judgment (order revoking probation).

FACTUAL AND PROCEDURAL BACKGROUND

The probation violation arises from a consolidated trial and hearing at which defendant was adjudged guilty of a misdemeanor violation of section 11357, subdivision (b) and found to have violated a condition of his probation on the same evidence that he used and possessed marijuana.

The misdemeanor conviction was reversed by the Appellate Division of the Mono County Superior Court because the trial court measured defendant's right to present a compassionate use defense by the wrong standard. Defendant was not retried within the period permitted by law.⁵ ACCORDINGLY, THE Resolution of the issues in this case is not premature, as claimed by the People.

In 1999 the defendant was placed on supervised probation in case no. EH0451 for maintaining a place for the use of a controlled substance. (§ 11366.) The record does not show the circumstances of the offense. As conditions of probation he was ordered to serve 90 days in the Mono County jail, pay a fine, "obey the laws", "not possess/consume controlled substances unless prescribed ... by a physician," and "not use or possess any dangerous drugs [or] narcotics...."

In February 2000, defendant informed Probation Officer Sandra Pallas that his next drug test would be positive for marijuana. He gave her a notarized "Physician's Certificate," dated December 9, 1999, signed by Dr. Marion Fry, M.D., that recommended cannabis use for defendant's medical condition, and a card with defendant's picture and signature that identified him as a medical marijuana user. Pallas gave defendant a drug test, which showed positive for T.H.C. metabolite and conducted a search of defendant's apartment, confiscating less than an ounce of marijuana.

This was followed with a "request for revocation of probation," signed by a judge and a deputy district attorney, "based upon" a declaration that:

"One of the conditions of said probation was that defendant obey all laws;

"Another condition of said probation was that defendant shall not possess/consume controlled substances [sic];⁶

"On 02-23-2000, defendant was charged with violation of Section 11357(b) of the Health and Safety Code."

The trial court issued an "[o]rder to show cause re: probation violation," stating defendant should show cause on March 20, 2000, "why your probation should not be revoked based on your failure to obey all laws."

In the following month (March) Pallas again obtained a positive marijuana test from defendant and again searched his home, seizing less than an ounce of marijuana.

The probation officer then filed a report alleging defendant "violat[ed] the Court's orders directing him to not use or possess any illicit substances" in four respects: (1) testing positive for THC in a urine sample on February 10, 2000; (2) possessing less than an ounce of marijuana in his home on February 10, 2000; (3) possessing less than an ounce of marijuana in his home on March 8, 2000; and (4) testing positive for THC on March 8, 2000." (Pen.Code, § 1203.2.)

In May 2000, defendant moved in limine to bar prosecution for violation of section 11357, subdivision (b) in case no. EH5660 and to bar prosecution for a probation violation in case no. EH0451, asserting he was a marijuana user with a "notarized `physician's statement.'" Over the prosecution's objection, the trial court agreed to permit defendant to present his medical marijuana defense in both the probation violation and marijuana possession cases.⁷ On August 7, 2000, the trial court ordered the cases consolidated.

However, on September 11, 2000, the trial court reversed itself and barred the defendant from presenting a medical marijuana defense because he was not seriously ill. Defendant waived a jury trial on the underlying marijuana possession case.

On September 4, 2001, the court conducted a consolidated trial and hearing of the criminal offenses (EH5660) and the probation violations (EH0451). It took judicial notice of the probation conditions concerning the use and possession of "controlled substances" and "dangerous drugs" but did not refer to the "obey the laws" condition.

Probation Officer Pallas testified to the commission of four offenses — two positive THC tests and two incidents of marijuana possession. Pallas agreed defendant had given her copies of a 1999 Physician's Statement authorizing marijuana use and a marijuana user's identity card.

The trial court found section 11362.5 inapplicable as an affirmative defense because defendant was not a "patient" within the meaning of section 11362.5 because he was not "seriously ill," because he was not in "imminent danger," and because he had not established a "legal alternative" to marijuana use. The court asserted that "all four allegations of the violation have been proved by a preponderance of the evidence...." (Emphasis added.)

At sentencing, defendant was reinstated on probation on condition that he complete a drug program in another county.

DISCUSSION

I.

The defendant's possession of marijuana was the basis of a conviction pursuant to section 11357 and the possession and the use of marijuana was the basis of a revocation of defendant's probation for a prior offense.

The criminal conviction was reversed on appeal and that ruling is final. Accordingly, we review the revocation of defendant's probation based on the noncriminal possession and use of marijuana. We also determine whether revocation may be founded upon the violation of the federal marijuana law.

The trial court revoked defendant's probation for violation of the condition that he not "possess/consume controlled substances...." The court did not claim the use or possession endangered others or that defendant diverted marijuana for nonmedical purposes. (§ 11362.5, subd. (b)(2).)⁸

A. Section 11362.5 Applies to Any Illness for which Marijuana Provides Relief

The court rejected a defense under section 11362.5 because defendant was not "seriously ill," he was not in "imminent danger," and he had not established a "legal alternative" to marijuana use.⁹

These criteria derive from the "medical necessity" defense which has been rejected in both the federal (United States v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 483, 491, 121 S.Ct 1711 1718, 149 L.Ed.2d 722, 732 ) and state courts (People v. Galambos (2002) 104 Cal.App.4th 1147, 1152, 128 Cal.Rptr.2d 844.)

The medical necessity defense is not the measure of the right to obtain and use marijuana for medical purposes granted by section 11362.5. In Mower, supra, the court said the holding of the Supreme Court...