SENTENCE BARRING MEDICAL MARIJUANA USE UPHELD

A judge who wanted a gun-toting youth to clean up his act was acting
within his power by forbidding him to use the medical marijuana he
took for migraine headaches as part of a probation sentence that kept
him out of prison, a state appeals court in San Francisco has ruled.
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The First District Court of Appeal said the Solano County judge
reasonably decided that becoming drug-free would help the youth turn
his life around. But a dissenting justice said the 2-1 ruling
undermines the medical marijuana law that California voters approved in 1996.

The initiative, Proposition 215, allows marijuana use with a doctor's
approval. In a lengthy dissent, Presiding Justice J. Anthony Kline
said a judge's order to forgo pot or face prison, for a crime
unrelated to drugs, violated Prop. 215's ban on criminal punishment
for medical marijuana users.

A sentencing judge "may disagree with the aims and directives of
(Prop. 215), but ... cannot defy them," Kline said.

The state's lawyer, Deputy Attorney General Laurence Sullivan, said
Tuesday he agrees with Monday's appellate court ruling, but expects
the state Supreme Court to make the final decision. Defense lawyer
Robert Angres said he's considering an appeal.

The defendant, Daryl Moret, was 19 when police in Fairfield held him
in July 2008 for passing a cigarette to a 16-year-old friend and
asked if he was carrying anything illegal. Moret said he was carrying
a loaded handgun that he had found in the bushes. Police said records
showed the gun had been stolen in 2007, but Moret said he was unaware of that.

He agreed to plead no contest to a charge of illegal gun possession.
In an interview with a court probation officer, Moret said he had
used marijuana in the past but had recently obtained a medical
marijuana identification card, with his doctor's approval, for the
migraine headaches he had suffered since the second grade.

At the sentencing hearing in December 2008, Superior Court Judge
Peter Foor said he didn't believe the youth's statements about the
gun and marijuana. Moret had potential, the judge said, but "smoking
dope isn't going to help any of this." Noting that the gun crime was
punishable by three years in prison, he said he would grant probation
if Moret surrendered his ID card and agreed to abstain from marijuana
and other drugs for three years.

Moret agreed but appealed, saying the probation condition violated
the medical marijuana law. In Monday's ruling, the appeals court
majority said Prop. 215 did not limit a judge's authority to forbid
drug use as a condition of probation, since a defendant can choose to
reject the conditions and accept a prison sentence.

Moret accepted probation voluntarily and offered no proof of his need
for medical marijuana, said Justice Paul Haerle in the majority opinion.

Kline, in dissent, said an ID card is all the proof a patient needs
under state law, and the sentencing judge could have held a hearing
if he doubted the card's legitimacy. A defendant's coerced acceptance
does not legalize probation restrictions that are unrelated to the
crime or future rehabilitation and prohibit otherwise-legal conduct,
Kline said.

Moret's trial lawyer, Deputy Public Defender Stephanie Grogan, said
Tuesday she has no information on how the ban on medical marijuana
has affected Moret for the last year. But she said he should not have
been required to "choose between his liberty and his medication."