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  1. chillinwill
    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. More Bay Area News

    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."

    Bob Egelko
    December 30, 2009
    San Francisco Chronicle
    http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/12/30/BAAK1BATDT.DTL

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