Metropolitan News-Enterprise


Friday, November 13, 2020


Page 1


Court of Appeal:

Probationer May Be Barred From Using Marijuana Though Unrelated to Offense


By a MetNews Staff Writer


The First District Court of Appeal yesterday rebuffed the contention of a man who beat up his girlfriend that barring him from use of marijuana as a condition of probation, imposed after he pled no contest to an assault charge, was an abuse of discretion because his offense did not stem from use of drugs or alcohol.

However, his past use of drugs and alcohol justified the order, Presiding Justice J. Anthony Kline of Div. Two declared, as a means of deterring future criminality. Kline rejected a contrary view expressed in a 1990 case.

The Office of Attorney General agreed with the appellant, Steven Matthew Stewart, that there was no showing that he lacked sobriety while committing his offense, and that possession and use of small amounts of marijuana is now lawful in California. It argued that the probation condition, imposed by Napa Superior Court Judge Mark Boessenecker, was nonetheless proper based on Stewart’s history of drug use and the possibility that use of Beseecher marijuana would interfere with medication he was taking for bipolar disorder.

Not Unreasonable

Kline agreed, saying:

“Appellant’s present offense reflects impaired judgment and loss of self-control, as do some of his past offenses. It is neither unduly speculative nor unreasonable to view the use of substances that tend to impair judgment and ability to control behavior—whether alcohol or marijuana—as increasing the risk of future commission of offenses of this type. Nor is it unreasonable to view use of such substances as potentially interfering with the efficacy of appellant’s mental health treatment, whether by adverse interaction with the prescribed medication for his bipolar disorder or by undermining his compliance with taking that medication.”

He continued:

“According to the probation report, based on a validated actuarial risk assessment tool for domestic violence offenders, appellant was considered to be at ‘high’ risk to commit future domestic violence. The court did not abuse its discretion in imposing the marijuana condition as one measure to reduce the risk of future offense, in accordance with the probation department’s recommendation for “[a]bstention and testing ... to encourage a sober lifestyle.”

Contrary Decision

Kline expressed agreement with cases that have rejected the view expressed in 1990 by the Fourth District’s Div. Two in People v. Kiddoo. In that case, a man who pled guilty to possession of methamphetamine was ordered, as a condition of probation, not to possess or consume alcohol or to enter bars.

The court in Kiddoo said:

“[A]lcohol possession and consumption, and frequenting places where alcoholic beverages are the chief item of sale, are not criminal. Therefore, the condition that defendant neither possess nor consume alcoholic beverages, and that he not frequent places where they are the major item of sale, to be valid, must reasonably be related to future criminal activity. There is no factual indication in the record that the proscribed behavior, in defendant’s case, is reasonably related to future criminal behavior. The condition is therefore invalid, and we shall strike it.”

Stewart’s reliance on that case “is unavailing,” Kline said. He noted that it was repudiated by the Fourth District’s Div. One in 1997 in People v. Beal and by that same division in two subsequent cases.

Kline quoted, with approval, the statement in Beal that “we disagree with the fundamental assumptions in Kiddoo that alcohol and drug abuse are not reasonably related and that alcohol use is unrelated to future criminality where the defendant has a history of substance abuse.” 

The case is People v. Stewart, A157857.


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