Bianco

Defendant Stephen Richard Bianco was granted probation subject to certain conditions. On appeal, defendant claims a probation condition prohibiting him from using or possessing marijuana impinges on his right to the medical use of marijuana under state law. (Health & Saf. Code, § 11362.5.) 1 We conclude that the trial court acted within its traditional discretion in imposing the probation condition.

Factual and Procedural Background

Under a negotiated agreement, defendant pleaded guilty to a felony charge of cultivating marijuana. (§ 11358.) Defendant was unable to complete a drug diversion program in the requisite time, and the trial court set the matter for sentencing.

Before the sentencing hearing, defendant obtained a physician’s recommendation for the medical use of marijuana. The physician’s recommendation, which is in the record, is facially in compliance with the California Compassionate Use Act of 1996 (Compassionate Use Act). (§ 11362.5.) The physician recommended marijuana to help alleviate pain defendant was suffering due to serious medical problems.

The probation department prepared a presentence report recommending that the court place defendant on…

I concur in the majority opinion, with one exception.

The opinion correctly concludes that California’s Compassionate Use Act of 1996 does not trump federal law outlawing possession of marijuana ( 21 U.S.C. § 844 ) and, thus, the condition of probation requiring defendant to comply with federal law by not possessing or using marijuana is a proper exercise of the trial court’s authority. (See People v. Lent (1975) 15 Cal.3d 481, 486 [ 124 Cal.Rptr. 905 , 541 P.2d 545 ].)

However, the opinion goes on to say, “[e]ven if we were to disregard federal law and evaluate the probation condition based [solely] on state law allowing for the medical use of marijuana, we would uphold the probation condition under the particular facts of this case.” (Maj. opn., ante, at p. 753.) This is so, the majority concludes, because the condition prohibiting the possession or use of marijuana is (1) related to the crime for which defendant was convicted, cultivation of marijuana, and (2) is reasonably related to future criminality, in that defendant’s history supports a determination that, in the future, he is likely to possess marijuana for nonmedicinal purposes.

It seems to me that, if we consider…

Defendant Stephen Richard Bianco was granted probation subject to certain conditions. On appeal, defendant claims a probation condition prohibiting him from using or possessing marijuana impinges his right to the medical use of marijuana under state law. (Health & Saf.Code, § 11362.5.) [1] We conclude that the trial court acted within its traditional discretion in imposing the probation condition.

Under a negotiated agreement, defendant pleaded guilty to a felony charge of cultivating marijuana. (§ 11358.) Defendant was unable to complete a drug diversion program in the requisite time, and the trial court set the matter for sentencing.

Before the sentencing hearing, defendant obtained a physician's recommendation for the medical use of marijuana. The physician's recommendation, which is in the record, is facially in compliance with the California Compassionate Use Act of 1996 (Compassionate Use Act). (§ 11362.5.) The physician recommended marijuana to help alleviate pain defendant was suffering due to serious medical problems.

The probation department prepared a presentence report recommending that the court place defendant on probation. The probation officer who…