{"id":3836,"date":"2018-12-28T17:00:18","date_gmt":"2018-12-28T17:00:18","guid":{"rendered":"https:\/\/staging.canorml.org\/wp\/key-medical-marijuana-decisions-people-v-bianco\/"},"modified":"2019-03-07T19:54:30","modified_gmt":"2019-03-07T19:54:30","slug":"key-medical-marijuana-decisions-people-v-bianco","status":"publish","type":"page","link":"https:\/\/staging.canorml.org\/wp\/judicial\/key-medical-marijuana-decisions-by-california-courts-a-partial-list\/key-medical-marijuana-decisions-people-v-bianco\/","title":{"rendered":"Key Medical Marijuana Decisions – People v. Bianco"},"content":{"rendered":"

Also see: Key Medical Marijuana Decisions by California Courts<\/a> <\/p>\n

People v. Bianco<\/i><\/b><\/font><\/p>\n\n\n\n\n\n\n\n\n\n\n\n
Citation<\/td>\n93 Cal. App. 4th 748, 113 Cal. Rptr. 2d 392 (2001)<\/td>\n<\/tr>\n
PDF of Full Opinion<\/td>\nhttps:\/\/staging.canorml.org\/wp\/legal\/bianco.pdf<\/a><\/td>\n<\/tr>\n
Fact Summary<\/td>\nThe defendant pleaded guilty to cultivation of marijuana. Before sentencing, the defendant obtained a physician\u2019s recommendation for the medical use of marijuana. Nevertheless, at sentencing, the trial court conditioned the defendant\u2019s that he not use or possess marijuana.<\/td>\n<\/tr>\n
Summary Rule of Law<\/td>\nA physician\u2019s recommendation for the medical use of marijuana under the Compassionate Use Act (\u201cCUA\u201d) 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. <\/td>\n<\/tr>\n
Facts & Procedure<\/td>\nThe defendant pleaded guilty to cultivation of marijuana. 93 Cal. App. 4th at 750. Before sentencing, the defendant \u201cobtained a physician\u2019s recommendation for the medical use of marijuana.\u201d Id.<\/i> Nevertheless, at sentencing, the trial court conditioned the defendant\u2019s that \u201che not use or possess marijuana.\u201d Id.<\/i> at 751.<\/td>\n<\/tr>\n
Issue(s)<\/td>\nDoes a physician\u2019s recommendation for the medical use of marijuana under the CUA prevent the imposition a probation condition not to use or possess marijuana?\n<\/td>\n<\/tr>\n
Holding(s)<\/td>\nA physician\u2019s 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. \u201c[I]t is a standard condition of probation to require the probationer to obey all laws . . . .\u201d Id.<\/i> at 752. The possession of marijuana is a crime under federal law. Id.<\/i> at 753. \u201cBy 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].\u201d Id.<\/i> \u201cThus, the probation condition was reasonably directed at defendant\u2019s future criminality.\u201d Id.<\/i><\/p>\n

\u201cEven if we were to disregard federal law . . . , we would uphold the probation condition under the particular facts of this case.\u201d Id.<\/i> \u201cThe probation condition is directly related to defendant\u2019s criminal offense. Id.<\/i> at 754. \u201cDefendant was convicted . . . of unlawful cultivation of marijuana.\u201d Id.<\/i> \u201cThe probation condition prohibits the use or possession of the same substance.\u201d Id.<\/i><\/td>\n<\/tr>\n

Concurring and Dissenting:
\n(Scotland, P.J.)\n<\/td>\n		\u201cThe opinion correctly concludes that [the CUA] does not trump federal law outlawing possession of marijuana.\u201d Id.<\/i> at 755. \u201c[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\u2019s authority.\u201d Id.<\/i> However, \u201cif 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.\u201d Id.<\/i> Defendant \u201csuffers from chronic pain\u201d and his pain is relieved by marijuana. Id.<\/i> If marijuana were not illegal under federal law, depriving Defendant of \u201cthe 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.\u201d Id.<\/i> at 755\u221256.<\/td>\n<\/tr>\n
Discussion<\/td>\nAlthough based on dubious reasoning, Bianco<\/i> 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 \u00a7 11362.795 (codified by the Medical Marijuana Program Act (\u201cMMPA\u201d)). As noted by the Presiding Judge Scotland\u2019s concurring and dissenting opinion, the majority opinion\u2019s 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,<\/i><\/a> 113 Cal. App. 4th 1433, 7 Cal. Rptr. 3d 226 (2003).\n<\/td>\n<\/tr>\n
Quotable Excerpt(s)<\/td>\nBalancing the evils\u2014chronic pain versus the possibility of future possession of marijuana for purposes other than compassionate use\u2014it 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.<\/p>\n

People v. Bianco,<\/i> 93 Cal. App. 4th 748, 756, 113 Cal. Rptr. 2d 392, 398-99 (2001) (Scotland, P.J., concurring and dissenting).<\/p>\n<\/td>\n<\/tr>\n<\/table>\n

Also see: Key Medical Marijuana Decisions by California Courts<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

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:\/\/staging.canorml.org\/wp\/legal\/bianco.pdf Fact Summary The defendant pleaded guilty to cultivation of marijuana. Before sentencing, the defendant obtained a physician\u2019s recommendation for the medical use of marijuana. Nevertheless, at … <\/p>\n

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