Moret

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…

After appellant pled no contest to one charge of possession of a concealed firearm (Pen. Code, § 12025, subd. (a)(2)) [1] and had a second charge dismissed, the court suspended imposition of a prison term and placed him on probation. The court imposed various conditions, among them that appellant abstain from using drugs and alcohol and, in connection with that condition, surrender his medical marijuana card. Defense counsel objected to that condition but, ultimately, appellant agreed to it in lieu of a jail sentence by the court and also waived his right of appeal. Although he neither asked for nor obtained a certificate of probable cause, appellant now appeals from the sentence imposed, specifically the condition requiring nonuse of marijuana and the surrender of his medical marijuana card. We affirm.

In the late afternoon of July 29, 2008, [2] two Fairfield police officers on bicycle patrol noticed two individuals, both of whom appeared to be under the age of 18, one of them appellant, passing a cigarette back and forth. The officers stopped the youths and asked their ages; appellant responded that he was 19 (which he was) and the other youth that he was 16. It…

*842 Opinion

I. INTRODUCTION

After appellant pled no contest to one charge of possession of a concealed firearm (Pen. Code, § 12025, subd. (a)(2)) 1 and had a second charge dismissed, the court suspended imposition of a prison term and placed him on probation. The court imposed various conditions, among them that appellant abstain from using drugs and alcohol and, in connection with that condition, surrender his medical marijuana card. Defense counsel objected to that condition but, ultimately, appellant agreed to it in lieu of a jail sentence by the court and also waived his right of appeal. Although he neither asked for nor obtained a certificate of probable cause, appellant now appeals from the sentence imposed, specifically the condition requiring nonuse of marijuana and the surrender of his medical marijuana card. We affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

In the late afternoon of July 29, 2008, 2 two Fairfield police officers on bicycle patrol noticed two individuals, both of whom appeared to be under the age of 18, one of them appellant, passing a cigarette back and forth. The officers stopped the youths and asked their ages; appellant responded that he was 19…

I concur in the result reached by Justice Haerle that the judgment be affirmed. I write separately, however, to say that I would refrain from the discussion in the last five pages of Justice Haerle’s opinion, the pages discussing Health and Safety Code section 11362.795, subdivision (a), the “relatively new statute” that he asserts “further . . . supports” what the trial court did here, and the statute addressed in part V of Presiding Justice Kline’s dissent. I do not think that statute is a necessary or appropriate subject, for two reasons.

First, and fundamentally, the effect of the statute was not briefed by the parties: the statute was not even mentioned in either of defendant’s briefs, and was mentioned only in passing by the Attorney General, in one sentence without exposition.

Second, the statute is unnecessary to the opinion, in light of what happened below: defendant agreed to waive any claimed right" to smoke medical marijuana. Contrary to Presiding Justice Kline’s view of what occurred, I do not read the record as involving a trial court which “impose[ed] an unlawful condition of probation.” (Dis. opn., post, at p. 860.) I view the record as *858 defendant, with full…