Tilehkooh

Following a consolidated court trial and hearing defendant Darius Tilehkooh was found guilty of the misdemeanor offense of *1436 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 His probation was revoked.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.

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…

I concur, because I agree that the revocation of probation is a criminal sanction. It is the express intent of the Compassionate Use Act of 1996 to ensure that patients who comply with its terms “are not subject to criminal prosecution or sanction.” People v. Mower (2002) 28 Cal.4th 457 [ 122 Cal.Rptr.2d 326 , 49 P.3d 1067 ] accurately describes the effect of Health and Safety Code section 11362.5 as creating a form of qualified immunity for the possession of marijuana in compliance with its terms. This immunity from criminal sanction takes the possession of marijuana and puts it in a special category apart from other legal acts, such as the use of alcohol, that can properly be made a condition of probation. This disconnect between the law of California and the law of the United States is a sorry situation that injects unnecessary strain and tension into the federal system.

The trial courts are restricted from imposing a reasonable condition of probation that is related to the offense and serves a rehabilitative purpose. Probationers may through compliance with Health and Safety Code section 11362.5 flout the laws of the United States and put law enforcement in the *1448…

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…