Key Medical Marijuana Decisions – People v. Bianco

Also see: Key Medical Marijuana Decisions by California Courts

People v. Bianco

Citation 93 Cal. App. 4th 748, 113 Cal. Rptr. 2d 392 (2001)
PDF of Full Opinion https://www.canorml.org/legal/bianco.pdf
Fact Summary The defendant pleaded guilty to cultivation of marijuana. Before sentencing, the defendant obtained a physician’s recommendation for the medical use of marijuana. Nevertheless, at sentencing, the trial court conditioned the defendant’s that he not use or possess marijuana.
Summary Rule of Law A physician’s recommendation for the medical use of marijuana under the Compassionate Use Act (“CUA”) does not prevent the imposition a probation condition not to use or possess marijuana because it is a standard condition of probation to require the probationer to obey all laws and possession of marijuana is a crime under federal law.
Facts & Procedure The defendant pleaded guilty to cultivation of marijuana. 93 Cal. App. 4th at 750. Before sentencing, the defendant “obtained a physician’s recommendation for the medical use of marijuana.” Id. Nevertheless, at sentencing, the trial court conditioned the defendant’s that “he not use or possess marijuana.” Id. at 751.
Issue(s) Does a physician’s recommendation for the medical use of marijuana under the CUA prevent the imposition a probation condition not to use or possess marijuana?
Holding(s) A physician’s recommendation for the medical use of marijuana under the CUA does not prevent the imposition a probation condition not to use or possess marijuana. 93 Cal. App. 4th at 751. “[I]t is a standard condition of probation to require the probationer to obey all laws . . . .” Id. at 752. The possession of marijuana is a crime under federal law. Id. at 753. “By imposing a condition of probation prohibiting defendant from the possession or use of marijuana, the trial court was in effect ordering defendant to obey [federal law].” Id. “Thus, the probation condition was reasonably directed at defendant’s future criminality.” Id.

“Even if we were to disregard federal law . . . , we would uphold the probation condition under the particular facts of this case.” Id. “The probation condition is directly related to defendant’s criminal offense. Id. at 754. “Defendant was convicted . . . of unlawful cultivation of marijuana.” Id. “The probation condition prohibits the use or possession of the same substance.” Id.

Concurring and Dissenting:
(Scotland, P.J.)
“The opinion correctly concludes that [the CUA] does not trump federal law outlawing possession of marijuana.” Id. at 755. “[T]hus, 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.” Id. However, “if we consider only California law, . . . the condition of probation that prohibits defendant from possessing or using any marijuana is not reasonably related to future criminality.” Id. Defendant “suffers from chronic pain” and his pain is relieved by marijuana. Id. If marijuana were not illegal under federal law, depriving Defendant of “the only substance that purportedly has relieved his chronic pain is not justified by the concern that he will possess marijuana for nonmedicinal purposes in the future.” Id. at 755−56.
Discussion Although based on dubious reasoning, Bianco is still citable as good law since courts can impose a prohibition on the use of medical marijuana as a condition of probation or parole. See Health & Safety Code § 11362.795 (codified by the Medical Marijuana Program Act (“MMPA”)). As noted by the Presiding Judge Scotland’s concurring and dissenting opinion, the majority opinion’s reasoning would fall apart, but for reliance on federal law. Future reliance on federal law as it relates to probation or parole conditions prohibiting the use of medical marijuana is foreclosed by People v. Tilehkooh, 113 Cal. App. 4th 1433, 7 Cal. Rptr. 3d 226 (2003).
Quotable Excerpt(s) Balancing the evils—chronic pain versus the possibility of future possession of marijuana for purposes other than compassionate use—it would be unreasonable to bar defendant from lawfully possessing marijuana for medicinal purposes simply out of concern that he also may possess marijuana for nonmedicinal purposes, a possibility that is adequately addressed by the threat of future criminal prosecution.

People v. Bianco, 93 Cal. App. 4th 748, 756, 113 Cal. Rptr. 2d 392, 398-99 (2001) (Scotland, P.J., concurring and dissenting).

Also see: Key Medical Marijuana Decisions by California Courts

Send a message to CaNORML