Filed 5/30/17 P. v. Houston CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
BRANDON HOUSTON,
Defendant and Appellant.

A148441

(Solano County
Super. Ct. No. FCR296355)


Brandon Houston appeals from an order denying his motion to modify the terms of his probation so that he could use medical marijuana. We apply the test set out in People v. Leal (2012) 210 Cal.App.4th 829 and conclude the refusal to modify the terms of Houston’s probation was within the court’s discretion. We affirm.
BACKGROUND
I. Offenses and History on Probation
In May 2013 Houston entered no-contest pleas to resisting arrest and vandalism causing over $400 worth of damage. Additional charges of driving on a suspended license and inflicting corporal injury on his child’s parent were dismissed pursuant to the negotiated disposition. The court suspended imposition of sentence and placed Houston on three years of probation with conditions including that he abstain from illegal drugs, submit to drug testing, and seek and maintain employment.
In 2014 Houston’s probation was revoked for his failure to report to his probation officer and reinstated with a new condition that explicitly prohibited him from using marijuana. There followed multiple other probation violations including failing to submit to drug testing, testing positive for marijuana, and battering a cohabitant.
In April 2016 Houston’s probation was again revoked for failure to drug test and abstain from drug use. The court released him on his own recognizance subject to all revoked probation conditions and warned him to “totally abstain from the use of illegal drugs. And right now, marijuana is an illegal drug.”
II. Motion To Allow Medical Marijuana Use
On April 29, 2016 Houston moved for authorization to use medical marijuana while on probation. In support he submitted two medical marijuana cards from “420 Med Evaluations,” one that had expired on February 21, 2016 and the second effective April 7, 2016. Both bore a physician’s certification that Houston had an unspecified medical condition that “may benefit from the use of medical cannabis.” At the hearing on the motion defense counsel told the court that Houston suffered from back pain and “pain issues with his hands” from an old gunshot wound, but offered no evidence about his medical condition.
The court denied the motion. It explained: “[H]ere’s the problem I see: He has—the issue is whether or not, you know, whatever the necessity is for this medication outweighs whether or not it inhibits his ability to get through his probation or not, it seems to me.
“Whether or not it has a relationship with a crime whether or not it requires conduct which is not reasonably related to future criminality; in other words, can he get through his probation?
“When I look through his record, he has a prior—he was originally charged with [Penal Code section] 11359. It got pled down to 11357(a); that was in 2007.
“When he was interviewed originally a couple of times on these cases, he basically said he was smoking marijuana almost every day, but he could quit to get through probation here, and it seems to me that he is smoking every day, but he has to drive to work and he has a prior conviction for 11357.
“It’s going to affect his ability, his future criminality and his ability to get through probation if he’s smoking weed every day on—oh, by the way, I should note, in one of these reports, it notes that he was using it when he didn’t have his recommendation that had lapsed; so I’m not hearing a significant medical necessity for it, and it seems to me like it’s inhibiting his ability to stay crime-free, get through probation, keep a job, which is very important.
“If he gets caught driving on this stuff, he loses his driver’s license. That, I think, would significantly inhibit his ability to get through probation and/or stay crime-free.”
Houston filed this timely appeal.
DISCUSSION
Houston argues the court’s refusal to modify the terms of his probation in order for him to use medical marijuana was an abuse of discretion. It was not.
The validity of probation conditions prohibiting the use of otherwise legally authorized marijuana was considered by Division 2 of this court in People v. Leal (2012) 210 Cal.App.4th 829 (Leal). Leal addressed a probation condition banning marijuana possession and use, even as authorized by the Compassionate Use Act, where, as here, circumstances suggested the prohibition would facilitate the defendant’s rehabilitation. (Id. at p. 837.) The court adopted a three-step inquiry into limiting CUA-authorized use of marijuana by a probationer. “First, we examine the validity of any CUA authorization; second, we apply the threshold Lent[ ] test for interfering with such authorization; and third, we consider competing policies governing the exercise of discretion to restrict CUA use.” (Ibid.)
The record does not present any reason to question the validity of Houston’s medical marijuana card. So, we will proceed “to the step-two question of whether a nexus to his crimes or future criminality existed, under the Lent test, to allow judicial interference” with his otherwise medically authorized use of marijuana. (Leal, supra, 210 Cal.App.4th at p. 840.)
Under Lent, “A trial court has broad, but not unlimited, discretion in setting the terms and conditions of probation. [Citations.] On appeal, we review the trial court’s exercise of that discretion under the abuse of discretion standard. ‘A condition of probation will not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .” [Citation.]’ [Citations.] All three factors must be present for a condition of probation to be invalid. [Citation.] Furthermore, ‘[i]nsofar as a probation condition serves the statutory purpose of “reformation and rehabilitation of the probationer,” [citation] it necessarily follows that such a condition is “reasonably related to future criminality” and thus may not be held invalid whether or not it has any “relationship to the crime of which the offender was convicted.” ’ [Citation.] A trial court does not abuse its discretion unless its determination is arbitrary or capricious or ‘ “ ‘exceeds the bounds of reason, all of the circumstances being considered.’ ” ’ [Citation.]” (People v. Hughes (2012) 202 Cal.App.4th 1473, 1479 (Hughes).)
The record in this case amply supports the court’s finding that prohibiting Houston’s use of medical marijuana was reasonably related to deterring his future criminality. Houston’s history with the criminal justice system began in 2003, with a juvenile adjudication for misdemeanor battery. In 2005 he admitted to felony grand theft and charges of marijuana possession were dismissed. In 2006 he admitted to charges of misdemeanor vandalism and battery and a charge of receiving stolen property was dismissed. In 2007 the court sustained felony robbery charges. Later that year his juvenile probation was terminated unsuccessfully when he reached the age of 18.
As an adult, Houston was convicted of possessing marijuana in 2007 and transporting marijuana in 2009. His current probation stems from two separate altercations. In October 2012 he became belligerent and resisted arrest when officers detained him for running a stop sign and driving with a suspended license. In April 2013 he vandalized a car belonging to his child’s mother after an argument, causing over $1,000 in estimated damage. He then sustained probation violations for testing positive for marijuana (while he did not possess a valid CUA authorization), failing to stay in contact with his probation officer, failing to submit to drug testing, and committing battery on his girlfriend. In 2014 Houston told probation officers he had smoked marijuana every day for 10 years except “for the most part” when he was on probation, and had resumed daily use upon his release from custody in December 2013 although he knew it violated his probation.
This record demonstrates that Houston’s substantial history of marijuana consumption predated his asserted medical justifications for its use and was coextensive with a pattern of sporadic low-level criminal offenses. The trial court reasonably inferred a causal connection between his marijuana use and criminality. Equally reasonable was the court’s concern that Houston’s marijuana use could result in driving under the influence and revocation of his driver’s license needed for his employment. The record thus amply supports the court’s determination that marijuana use would likely impede Houston’s rehabilitation and its prohibition was relevant to preventing his future criminality.
The third step of the Leal inquiry balances the defendant’s medical need for marijuana against the need to prohibit its use in order to promote his rehabilitation and the public’s protection. Houston provided no evidence of the history of his medical treatment, the identity and severity of his condition, the efficacy of marijuana to treat it, or the inefficacy of alternative medications. (See Leal, supra, 210 Cal.App.4th at p. 845.) Indeed, before he challenged the condition he told probation officers he was “confident he can cease his use of the drug while on probation and does not feel it will be an issue for him.” On the other hand, as noted, the court properly found its prohibition served the rehabilitative and protective interests identified in Leal. The court’s conclusion that those interests merited greater weight than Houston’s unsubstantiated need for medical marijuana was well within its discretion. (See Leal, supra, 210 Cal.Ap.4th at pp. 844–845; People v. Moret (2009) 180 Cal.App.4th 839, 848-849.)
DISPOSITION
The order denying Houston’s motion to allow the use of medical marijuana while he is on probation is affirmed.
 





_________________________
Siggins, J.


We concur:


_________________________
Pollak, Acting P.J.


_________________________
Jenkins, J.






















People v. Houston, A148441