Or at least that's what Daryl Moret thought. Which prompts not one, not two, but three different opinions by the panel in the Court of Appeal.
Each one of 'em is worth reading. They are also all quite plausible. Personally, I think I'm most inclined to go with Justice Richman's concurring opinion -- though both Justice Kline's dissent as well as Justice Haerle's lead opinion have a fair piece going for them. I think I agree with it on the merits, but maybe I'm also tilting towards it because of the following paragraph, which I think is right:
"What I perceive happened here is that an experienced and conscientious trial judge had before him a young man who, as the court stated, had "potential." As the trial court also noted, defendant had no "serious" record, though agreeing to "restitution" for an "embezzlement" certainly smacks of "criminal conduct," the words actually used by defendant‘s counsel—which conduct apparently resulted in no "criminal record" only because of a benevolent district attorney. That young man, the trial court could also observe, was starting down, perhaps continuing down, a slippery slope, which may have begun with defendant‘s admitted marijuana—not medical marijuana—use at ages 16 and 17. Then came the embezzlement. Then, and most seriously, defendant is found with a loaded gun, stolen months before, and defendant‘s frankly preposterous story about how he found it. And then came the apparently recently obtained medical marijuana card for migraine headaches, headaches and medical marijuana utterly unmentioned by defendant‘s parents or their pastor in their letters seeking leniency. . . ."
You've got a guy going totally the wrong way. The last thing he needs is to get high every day. Particularly when you're toting a .38.
I also must say that I liked the frankness of the comments from the trial judge -- Judge Foor up in Solono County: "This statement of probation that he accepts responsibility for his actions, in this court's opinion, that's a joke. He hasn‘t accepted anything. He wasn‘t truthful with probation. . . . That is so unbelievable. I don't know who he thinks really expects to believe a story like this [that he 'found' the gun in the bushes but doesn't know where], but I don't. I don‘t accept any part of it, and there's obviously a reason he carries this gun. People don't do anything without reasons. The reason is to shoot somebody. That‘s why he had a loaded gun. So I have every justification, if I wish to put him in jail for a while. I don't really know that that would be the best solution here for this defendant. As I said, he‘s a young man. He obviously has made a mistake, and he's made a couple of mistakes here recently, this mistake, the embezzlement that he is involved in, but it's certainly not too late for him to get things turned around. He doesn't have a serious record. In my opinion, smoking dope isn't going to help any of this. Every person I have ever seen, that sits around smoking dope, goes nowhere. You can't function when you are loaded, and you know, there is a good reason why they call it dope. So if he wants to, you know, game the system, which I think is what's really going on here with this medical marijuana for a headache."
Okay, so maybe the line of "there is a good reason why they call it dope" was sort of lame. But the rest of it I thought was spot on. (Here's some more great stuff from the dissent's quotation of the trial court: "[A]ppellant "had a firearm, with a most implausible explanation for it, one that if he really expects the Court to believe this, he might as well ask me to believe in Santa Claus." Refusing to "believe any part of this, 'I found it in the trash or in the bushes,' the court stated that '[t]his was a gun that was stolen less than a year ago out of Vacaville. He‘s got it. A handgun like this is good for one thing, and that's shooting somebody. So if he's in a situation where he needs to have a gun to shoot somebody, he's got real problems going on in his life, and smoking dope isn't helping him. That's the bottom line.")
I get Justice Kline's dissent, of course, which says that it's not okay to condition probation on giving up legitimate prescriptions. But given what I think of Moret's credibility, as well as the serious nature of the loaded gun possession, I think that the majority may have the better of the argument here. There may well be a case where giving up weed isn't a legitimate condition. But I'm not sure that under any stretch of the facts this is one of them.
Plus, I still think that pot is a different 'type' of medicine, if only because -- again -- it's still illegal, albeit only under federal law. It seems to me that a trial court might well be able to say that as a condition of probation, the defendant "shall not commit any crimes, state or federal." Which would include toking. There might be some extreme cases where such a position would be difficult to defend, but, in my heart of hearts, I don't see this as being one of 'em. Under any interpretation of any plausible record.
