P. v. Berry 12/21/06 CA5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: F048189

Case Date: 04/11/2007

Preview:Filed 12/22/06

CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F048189 & F048190 Plaintiff and Respondent, (Super. Ct. Nos. 25359 & 25360) v. RICKEY EDWARD BERRY, Defendant and Appellant.

OPINION

APPEAL from a judgment of the Superior Court of Merced County. John D. Kirahara, Judge. Richard Glen Boire, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, and Stan Cross, Deputy Attorney General, for Plaintiff and Respondent. -ooOooOn the ground that a medical doctor recommended he use marijuana under the Compassionate Use Act of 1996 (CUA), Rickey Edward Berry challenges the legality of Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts 2, 3 and 4.
*

a probation condition that requires him not to own, possess, control, or be under the influence of marijuana but that allows him to use a prescribed medicine containing tetrahydrocannabinol (THC), the main psychoactive substance in marijuana.1 The marijuana condition prohibits conduct legal under California law but nonetheless bears a reasonable relation not only to crimes of which he was convicted but also to his future criminality, so we will reject his argument that the imposition of that condition and the violation of his probation for his breach of that condition were an abuse of discretion.2 Berry argues, too, that his attorney's express acquiescence in the marijuana condition constituted ineffective assistance of counsel, that the imposition of a duet, but not a quartet, of restitution fines and parole revocation restitution fines was lawful, and that the imposition of an aggravated term without a jury finding on circumstances in aggravation violated his constitutional due process and jury trial rights. We will reject his ineffective assistance of counsel and aggravated term arguments but will strike all restitution fines and parole revocation restitution fines from the judgment and order a limited remand for resentencing for the court to impose new fines after articulating on the record a rationale for doing so. Otherwise we will affirm the judgment (order revoking probation).

The CUA is codified in Health & Safety Code section 11362.5, which ensures, inter alia, "that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana." (Id., subd. (b)(1)(A).) The CUA makes the possession of marijuana "no more criminal

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