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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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
prison term, but suspended the sentence and placed defendant on probation for three
years, under specified conditions. The court referred the matter to the probation
department for further terms and held another hearing to impose the additional terms.
Subsequently, the court held a hearing pursuant to People v. Vickers (1972) 8 Cal.3d 451
and found defendant in violation of his probation. The court revoked his probation and
imposed the previously suspended sentence.
On appeal, defendant contends that the court erred in revoking his probation based
on his use of medical marijuana. We disagree and affirm.
PROCEDURAL BACKGROUND
On August 31, 2012, the court modified defendant’s probation conditions to add
the following condition: “Neither use nor possess any controlled substance without
medical prescription. A physician’s written notice is to be given to the probation
officer.”
On September 30, 2013, the probation department filed a petition for revocation of
probation, alleging that defendant was given a presumptive drug test on September 25,
2013, and it returned a positive result for marijuana and cocaine.
A probation revocation hearing was held, beginning on November 12, 2013.
Probation Officer Ricque Belluscio testified that on September 24, 2013, he conducted a
home visit at defendant’s residence. Defendant was not there, so the probation officer
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talked to his grandmother. Officer Belluscio left a card instructing defendant to report to
the probation office the next day.
Defendant reported to probation the next day and was given a presumptive drug
test. The result was positive. Defendant signed a form in which he voluntarily admitted
to using marijuana on September 23, 2013. Defendant told Officer Belluscio that he had
a medical marijuana card. The officer told him that the probation department’s policy
was that probationers cannot use marijuana, even if they have a card. However, at the
hearing, 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.”
Another probation officer, Addi Garcia, testified that he was defendant’s probation
officer, and that he previously conducted a home visit on October 2, 2012. Defendant
was not there, but his grandmother indicated which bedroom was his. Officer Garcia’s
partner searched the bedroom and found a sword and several empty bottles of medical
marijuana. Officer Garcia met with defendant the next day. Defendant said he was using
marijuana daily. Officer Garcia told him he could not possess any type of marijuana
paraphernalia and that he could not use marijuana at all. Defendant said he understood.
Defendant testified on his own behalf at the revocation hearing. He admitted that
he had failed to appear for his probation review hearing on January 18, 2013, and that he
was subsequently arrested and brought before the court. At that time, the court did not
impose his suspended sentence, but warned him against committing any further
violations.
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Defendant further admitted that on September 23, 2013, he told the probation
officers he smoked marijuana. He said he told the officers that his probation terms said
he could not use drugs unless they were prescribed by a doctor. Defendant said he had a
marijuana prescription and showed the officers his card; they then told him he was not
allowed to use medical marijuana. Defendant confirmed that he signed the form
admitting that he smoked marijuana. He also said that day was the first time he had heard
that he was not allowed to have medical marijuana. Defendant did not remember Officer
Garcia previously telling him in October 2012, that he could not use medical marijuana.
Defendant confirmed that his medical marijuana prescription expired on September 5,
2013. He also admitted that he continued to use marijuana after his prescription had
expired.
The court heard and considered the testimonies, as well as argument from counsel.
It then stated that the minute order dated January 25, 2013, indicated that the court said it
would not proceed with a previous probation violation petition, but warned defendant that
any further violation of probation would result in the imposition of a state prison
sentence. The court then found that defendant had willfully violated his probation, noting
that he smoked marijuana on a daily basis. The court remarked that the previous court
made it very clear that he was not to deviate from his probation conditions. The court
stated that if defendant had a medical marijuana card, and he kept smoking after it had
expired, and if he ignored the probation officer’s directive to not smoke, even with a card,
then he was in violation. The court revoked his probation and imposed the five-year state
prison sentence.
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ANALYSIS
The Court Properly Exercised its Discretion in Revoking Defendant’s Probation
Defendant contends that the trial court erred by revoking his probation based on
his use of medical marijuana. He points to the probation officer’s testimony concerning a
blanket policy prohibiting all probationers from using marijuana and claims that such
policy violates Proposition 215. He further argues that the probation officer did not
provide any written notification of this policy. Finally, defendant argues that he had
previously obtained a doctor’s recommendation authorizing him to use medical
marijuana, and that his failure to renew the medical marijuana card when it expired did
not justify a finding that he was in violation of his probation. We conclude that the court
properly found him in violation.
A. Relevant Law
“Trial courts are granted great discretion in deciding whether or not to revoke
probation.” (People v. Kelly (2007) 154 Cal.App.4th 961, 965.) “A court may revoke
probation ‘if the interests of justice so require and the court, in its judgment, has reason to
believe from the report of the probation officer or otherwise that the person has violated
any of the conditions of his or her probation . . . .’ [Citation.] ‘As the language of [Penal
Code] section 1203.2 would suggest, the determination whether to . . . revoke probation
is largely discretionary.’ [Citation.] ‘[T]he facts supporting revocation of probation may
be proven by a preponderance of the evidence.’ [Citation.] However, the evidence must
support a conclusion the probationer’s conduct constituted a willful violation of the terms
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and conditions of probation. [Citation.]” (People v. Galvan (2007) 155 Cal.App.4th 978,
981-982; see Pen. Code, § 1203.2, subd. (a).)
B. The Court Properly Exercised its Discretion
The probation condition at issue here “relates to otherwise legal conduct because
the medical use of marijuana has been legal in California since 1996 when the electorate
passed Proposition 215, the CUA [Compassionate Use Act], codified as Health and
Safety Code section 11362.5.” (People v. Hughes (2012) 202 Cal.App.4th 1473, 1479-
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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