Key Medical Marijuana Decisions – People v. Tilehkooh

Also see: Key Medical Marijuana Decisions by California Courts

People v. Tilehkooh

Citation 113 Cal. App. 4th 1433, 7 Cal. Rptr. 3d 226 (2003)
PDF of Full Opinion https://www.canorml.org/legal/tilehkooh.pdf
Fact Summary The People sought to revoke the defendant’s probation following a positive drug test for THC. However, the defendant had a physician’s recommendation to use marijuana and attempted to assert an affirmative defense under the Compassionate Use Act (“CUA”). The trial court found the CUA inapplicable because the defendant was not “seriously ill,’ because he was not in “imminent danger,” and because he had not established a “legal alternative” to marijuana use. Moreover, on appeal the People claimed that the CUA is not a defense to a revocation of probation and that, in any event, the possession of marijuana violated a condition of defendant’s probation that he obey federal criminal laws.
Summary Rule of Law The CUA provides a defense to probation revocation where there is no claim that the probationer’s conduct endangers others or that the probationer diverted marijuana for nonmedical purposes. Moreover, the condition of probation to obey federal criminal laws does not prevent a probationer from asserting a defense under the CUA; the California courts long ago recognized that state courts do not enforce the federal criminal statutes.

Also, a “patient” does not have to prove they are “seriously ill” and were in “imminent danger” and could not establish a “legal alternative” to marijuana use to assert a defense under the CUA. The medical necessity defense is not the measure of the right to obtain and use marijuana for medical purposes granted by the CUA.

Facts & Procedure The “defendant was placed on supervised probation [following a case] for maintaining a place for the use of a controlled substance.” 113 Cal. App. 4th at 1438. “As conditions of probation [the defendant] was ordered to . . . ‘obey the laws’, ‘not possess/consume controlled substances unless prescribed . . . by a physician,’ and ‘not use or possess any dangerous drugs [or] narcotics . . . .’” Id. (alteration in original). While on probation, the defendant informed his probation officer “that his next drug test would be positive for marijuana” and “gave her a notarized ‘Physician’s Certificate,’” recommending the use of marijuana for Defendant’s medical condition. Id. The defendant’s drug test “showed positive for THC metabolite” and, afterwards, “[t]he trial court issued an order to show cause” for Defendant to show why his probation should not be revoked “for violation of the condition that he not “possess/consume controlled substances”. Id. at 1438, 1440.
The defendant attempted to assert an affirmative defense under the CUA. Id. at 1439. However, the trial court found the CUA inapplicable because the “defendant was not a ‘patient’ within the meaning of [the CUA], because he was not ‘seriously ill,’ because he was not in ‘imminent danger,’ and because he had not established a ‘legal alternative’ to marijuana use. Id. at 1439−40. “The court did not claim the use or possession endangered others or that defendant diverted marijuana for nonmedical purposes.” Id. at 1440. Moreover, “[o]n appeal the People claim[ed] that [the CUA] is not a defense to a revocation of probation and that, in any event, the possession of marijuana violated a condition of defendant’s probation that he obey the criminal laws of the United States.” Id. at 1437.
Id.
Issue(s) 1. Does a “patient” have to prove they are “seriously ill” and were in “imminent danger” and could not established a “legal alternative” to marijuana use to assert a defense under the CUA?

2. Does the CUA provide a defense to probation revocation?

3. Does the condition of probation to obey federal criminal laws prevent a probationer from asserting a defense under the CUA?

Holding(s) 1. A “patient” does not have to prove they are “seriously ill” and were in “imminent danger” and could not establish a “legal alternative” to marijuana use to assert a defense under the CUA. See 113 Cal. App. 4th at 1441. “These criteria derive from the ‘medical necessity’ defense . . . .” Id. at 1440. “The medical necessity defense is not the measure of the right to obtain and use marijuana for medical purposes granted by [the CUA].” Id. at 1441. “Although [the CUA] affords a defense to ‘seriously ill Californians’ who obtain and use marijuana for medical purposes, it includes within that category a list of illnesses, including arthritis, and ‘any other illness for which marijuana provides relief.’” Id. (citing the CUA) (emphasis in original).

2. The CUA provides a defense to probation revocation “where . . . there is no claim that [the probationer’s] conduct endanger[s] others or that [the probationer] diverted marijuana for nonmedical purposes.” 113 Cal. App. 4th at 1437. Although subdivision (d) of the CUA only refers to criminal charges, the CUA also includes statements of purpose. Id. at 1442. A court is “directed to give sense to all of the terms of an enactment.” Id.. at 1443. To do so, effect must be given to the stated purposes of the CUA, “which establishe[] a ‘right to obtain and use marijuana for medical purposes’ and which links the right to use marijuana with the prohibition on the imposition of a ‘criminal prosecution or sanction.’” Id. (citing the CUA). “It is readily apparent that the right to obtain or use marijuana is not ‘ensure[d]’ if its use is not given protection from the adverse consequences of probation.” Id. (alteration in original). “[T]he term ‘prosecution or criminal sanction’ must be read to apply to any criminal sanction for the use of marijuana.” Id.
“A probation condition, even if it is not a violation of the criminal law, must be reasonably related to the crime of which the defendant was convicted or to future criminality.” Id. at 1444 (citations and internal quotations omitted). “However, it ordinarily cannot be said that the treatment of an illness by lawful means is so related.” Id. To illustrate, “Mower analogized the right to use marijuana for medical purposes granted by [the CUA] to the right to use a prescription drug.” Id. at 1443 (citing People v. Mower, 28 Cal. 4th 457, 482 (2003)). Moreover, statutes may limit a “trial court’s authority to condition probation and to determine the punishment for probation violators.” Id. at 1444 (citations omitted). There is “no reason to treat the plain language of [the CUA] differently.” Id. at 1445.

3. The condition of probation to obey federal criminal laws does not prevent a probationer from asserting a defense under the CUA. 113 Cal. App. 4th at 1437. “The court held to the contrary in People v. Bianco, [93 Cal. App. 4th 748, 753 (2001)], a case which preceded Mower and did not consider the fact that what was being enforced was state and not federal law.” Id. at 1447. “The California courts long ago recognized that state courts do not enforce the federal criminal statutes.” Id. at 1445. “Since the state does not punish a violation of the federal law ‘as such,’ it can only reach conduct subject to the federal criminal law by incorporating the conduct into the state law.” Id. at 1446.

“The People do not claim they are enforcing a federal criminal sanction attached to the federal marijuana law.” Id. “Rather, they seek to enforce the state sanction of probation revocation which is solely a creature of state law.” Id. “The state cannot do indirectly what it cannot do directly.” Id. Although “[a] trial court may find a defendant has violated a condition even if he has been acquitted of a charged crime or never charged”, “this rule does not extend to the medical treatment of a disease by use of a prescription drug or by means which have been sanctioned by the state law.” Id. (citations omitted). “California courts do not enforce the federal marijuana possession laws when defendants prosecuted for marijuana possession have a qualified immunity under [the CUA].” Id. “Similarly, California courts should not enforce federal marijuana law for probationers who qualify for the immunity provided by [the CUA].” Id.

Discussion Despite Tilehkooh, a probationer or parolee may still be prohibited from using medical marijuana. See Health & Safety Code § 11362.795 (codified by the Medical Marijuana Program Act (“MMPA”)). Moreover, in People v. Moret, 180 Cal. App. 4th 839, 856, 104 Cal. Rptr. 3d 1, 15 (2009), the application of Tilehkoohh was confined to revocation of probation or parole

“[T]here is clearly no conflict between section 11362.795’s provisions allowing a superior court to make a ‘decision’ regarding a ‘no marijuana’ probation condition and [the CUA]. . . . [O]ne of the [stated] purposes of the CUA was to ‘ensure that patients . . . who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.’ The MMP[A] in general and section 11362.795 in particular do not conflict with this stated purpose. No case cited by the dissent holds, or even suggests, that the imposition of a probation condition, especially one expressly agreed to, amounts to a ‘criminal sanction.’ The holding of Tilehkooh (again, a decision rendered before the effective date of section 11362.795) was that a revocation of probation based on the use of marijuana was such a sanction and therefore subject to the defense provided by [the CUA]. . . . That is not at all this case.”

In other words, Tilehkooh and the CUA defense only applies to revocation of probation or parole, while Health & Safety Code section 11362.795 applies to the imposition of probation or parole.

Nevertheless, Tilehkooh does foreclose future reliance on federal law to uphold probation or parole conditions prohibiting the use of medical marijuana, as in People v. Bianco, 93 Cal. App. 4th 748, 753 (2001). In that regard, Tilehkooh is the first in a line of decisions which eventually culminate in a California court holding that the Federal Controlled Substances Act “[d]oes [n]ot [p]reempt the CUA or the MMPA.” Qualified Patients Ass’n v. City of Anaheim, 187 Cal. App. 4th 734, 756, 115 Cal. Rptr. 3d 89, 105 (2010); see also
Cnty. of San Diego v. San Diego NORML, 165 Cal. App. 4th 798, 809, 81 Cal. Rptr. 3d 461, 468 (2008) (holding “provisions of the MMP[A] are not preempted”).

Quotable Excerpts Quotable Excerpts:
The California Supreme Court has analogized the use of marijuana pursuant to section 11362.5 to the use of a prescription drug. (People v. Mower, (2002) 28 Cal.4th 457, 482, 122 Cal.Rptr.2d 326, 49 P.3d 1067 (hereafter Mower ).)

People v. Tilehkooh, 113 Cal. App. 4th 1433, 1436−37, 7 Cal. Rptr. 3d 226, 229 (2003).

We conclude that defendant may assert section 11362.5 as a defense to the criminal sanction of revocation of his probation where, as here, there is no claim that his conduct endangered others or that he diverted marijuana for nonmedical purposes. (See § 11362.5, subd. (b)(2)).

People v. Tilehkooh, 113 Cal. App. 4th 1433, 1437, 7 Cal. Rptr. 3d 226, 229 (2003).

We also conclude the People may not evade section 11362.5 on the ground defendant violated a probation condition that he obey the federal criminal marijuana law. It is only as an offense against state laws that a federal criminal law may be given effect. Since the federal marijuana law is given effect only by its incorporation in the state law as a probation condition, it is subject to the state law defense of section 11362.5.

People v. Tilehkooh, 113 Cal. App. 4th 1433, 1437, 7 Cal. Rptr. 3d 226, 229 (2003).

It is readily apparent that the right to obtain or use marijuana is not “ensure[d]” if its use is not given protection from the adverse consequences of probation.

People v. Tilehkooh, 113 Cal. App. 4th 1433, 1443, 7 Cal. Rptr. 3d 226, 233 (2003).

Since the use of marijuana is not a crime, the term “prosecution or criminal sanction” must be read to apply to any criminal sanction for the use of marijuana.

People v. Tilehkooh, 113 Cal. App. 4th 1433, 1443, 7 Cal. Rptr. 3d 226, 233 (2003).

Indeed, it would completely frustrate the purpose of section 11362.5 if a violation of probation for the medical use or possession of marijuana is permitted while barring a criminal prosecution for the identical conduct.

People v. Tilehkooh, 113 Cal. App. 4th 1433, 1443, 7 Cal. Rptr. 3d 226, 233 (2003).

We see no reason to treat the plain language of section 11362.5 differently. It precludes the imposition of a “criminal sanction” for the use and possession of marijuana and ensures the right to use and possess marijuana when the user satisfies the conditions of section 11362.5.

People v. Tilehkooh, 113 Cal. App. 4th 1433, 1444−45, 7 Cal. Rptr. 3d 226, 235 (2003).

In this case, depriving defendant of the right to predicate a defense to a probation revocation upon section 11362.5 denied him due process. (Black v. Romano (1985) 471 U.S. 606, 611–612, 105 S.Ct. 2254, 2257–58, 85 L.Ed.2d 636, 642–643.)

People v. Tilehkooh, 113 Cal. App. 4th 1433, 1445, 7 Cal. Rptr. 3d 226, 235 (2003).

The People have misunderstood the role that the federal law plays in the state system. The California courts long ago recognized that state courts do not enforce the federal criminal statutes.

People v. Tilehkooh, 113 Cal. App. 4th 1433, 1445, 7 Cal. Rptr. 3d 226, 235 (2003).

The state cannot do indirectly what it cannot do directly.

People v. Tilehkooh, 113 Cal. App. 4th 1433, 1446, 7 Cal. Rptr. 3d 226, 236 (2003).

California courts do not enforce the federal marijuana possession laws when defendants prosecuted for marijuana possession have a qualified immunity under section 11362.5. Similarly, California courts should not enforce federal marijuana law for probationers who qualify for the immunity provided by section 11362.5.

People v. Tilehkooh, 113 Cal. App. 4th 1433, 1447, 7 Cal. Rptr. 3d 226, 236 (2003).

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.

People v. Tilehkooh, 113 Cal. App. 4th 1433, 1447, 7 Cal. Rptr. 3d 226, 237 (2003) (Morrison, J., concurring).

The people of California and a growing number of other states have recently enacted compassionate use laws. Congress should consider the wisdom of accommodating the people of these states.

People v. Tilehkooh, 113 Cal. App. 4th 1433, 1448, 7 Cal. Rptr. 3d 226, 237 (2003) (Morrison, J., concurring).

Also see: Key Medical Marijuana Decisions by California Courts

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