P. v. Snell
Filed 8/22/07 P. v. Snell CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. JACK PATRICK SNELL, Defendant and Appellant. | D050148 (Super. Ct. No. SCD202142) |
APPEAL from a judgment of the Superior Court of San Diego County, George W. Clarke, Judge. Affirmed.
Jack Snell entered a negotiated guilty plea to cultivating marijuana (Health & Saf. Code, 11358).[1] The court placed him on three years' probation. Snell appeals, contending the conditions of his probation must be modified to allow for the probability that he may qualify for a prescription medication containing the active ingredient in marijuana. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 19, 2006, undercover San Diego Police detectives began investigating a marijuana delivery service. They learned about the service through a website advertising marijuana delivery for medical marijuana patients. Detectives contacted the service run by Snell. An undercover detective met him and gave him a copy of an Alternative Care Consultants Medical Marijuana Physician's Statement and $340. In return, Snell gave the detective one ounce of marijuana.
On October 11, 2006, the undercover detective contacted Snell again. They met and Snell gave the detective one ounce of marijuana in exchange for $340. Snell was arrested for the sale. A search of his home revealed that he was growing marijuana in a bedroom. He had hung florescent lighting, covered the window and installed a cooler. There were 29 healthy and well-tended live marijuana plants. Three of the plants were 35 inches high and the remaining 26 were three to eight inches high. There were also 16 plants drying in the bedroom. There was additional marijuana in the kitchen, hall closet and Snell's vehicle.
Snell said that he was growing the marijuana in order to sell it to medical marijuana patients, but admitted he did not verify medical authorizations for all of his customers. He said he was growing his fifth crop, also sold marijuana that other people gave him and employed one delivery driver.
Snell told the probation officer he first smoked marijuana when he was approximately 18 years old, began using it regularly in January 2005, eats or smokes it daily and uses "enough" to help ease his foot pain and migraines. He said he had a medical authorization to use marijuana for anxiety, migraines, and hand, foot and hip problems, but was not currently being treated by a doctor as he had no health insurance. He also reported he was not taking any prescription medication. He said his migraines resulted from a childhood head injury, and his foot was injured at work.
The conditions of probation included a prohibition against possessing any controlled substance without a valid prescription, a prohibition against using or possessing marijuana and a requirement for drug testing. Snell accepted probation with those conditions.
DISCUSSION
Snell contends the conditions of his probation are overbroad and must be modified to allow for the probability that he may qualify for a prescription medication containing the active ingredient in marijuana. He asserts he should be permitted to use any validly-prescribed drug. He also asserts he should not be deemed in violation of probation if he tests positive for the active ingredient in marijuana when he has a valid prescription for a drug containing that ingredient, uses the drug as prescribed and notifies the probation officer. He asks that we remand this case to the sentencing court for the drafting of the applicable probation condition.
Snell claims "it is well[-]known that the active ingredient in marijuana, THC, is found in an FDA-approved prescription drug called marinol."[2] He further claims "[i]t is . . . well-known that any standard urine or blood test for marijuana will result in a positive result if the patient is taking marinol."
This issue could have been addressed at sentencing. Snell, however, failed to make any of his assertions then, and did not even mention Marinol. As a result, there is nothing in the record on appeal concerning Marinol, any other relevant prescription medication, their effects on drug test results or any of the possible problems with allowing Snell to use such medications and having him test positive. He forfeited the right to challenge his probation conditions on appeal by failing to do so in the trial court. (People v. Welch (1993) 5 Cal.4th 228, 234-235.)
DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
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[1] The court dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) counts alleging Snell transported more than 28.5 grams of marijuana (Health & Saf. Code, 11360, subd. (a)) and possessed marijuana for sale (Health & Saf. Code, 11359).
[2] Snell cites People v. Trippet (1997) 56 Cal.App.4th 1532, 1539, which refers to "Marinol" as "a prescription drug containing a synthetic marijuana compound . . . ."
