1 Filed 4/3/13 P. v. Perry CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. BLAINE PERRY, Defendant and Appellant. A134385
(Napa County Super. Ct. No. CR158209)

Blaine Perry appeals from an orde r denying his post-judgment motion under Health and Safety Code section 11362.795 1 to modify his probati on conditions to allow his use of medical marijuana under the Compassionate Use Act of 1996 (CUA) (§ 11362.5) and Medical Marijuana Program ( MMP) (§ 11362.7 et se q.). We affirm the
order.

1 All undesignated section references are to the Health and Safety Code. Section 11362.795 provides in pertinent part: “(a)(1) Any criminal defendant who is eligible to use marijuan a pursuant to Section 11362.5 may request that the court confirm that he or she is allowed to use me dical marijuana while he or she is on probation or released on bail. “(2) The court’s decision and the reasons for the decision shall be stated on the record and an entry stating those reasons sh all be made in the minutes of the court. “(3) During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana. “(4) The court’s consideration of the modification request authorized by this subdivision shall comply with the requirements of this section.”2 B ACKGROUND Commitment offense. In an April 10, 2009 nego tiated disposition of an amended complaint in Marin County Superior Court, Perry pled guilty to one co unt of assault with force likely to produce great bod ily injury (Pen. Code, § 245, subd. (a)(1)) in return for dismissal of counts for corpor al injury on a cohabitant and making terrorist threats (Pen. Code, §§ 273.5, subd. (a), 422). All charge s involved an attack on a woman identified confidentially as Jane Doe, and a Harvey waiver ( People v. Harvey (1979) 25 Cal.3d 754) allowed consideration of the dismissed counts at sentencing. Sentencing on May 27, 2009, proceeded with little doc umentation of the crimes. Perry had waived a preliminary hearing, and both sides waived a presentence report that a referral to probation had not yet produced. Letters from Doe and he r mother focused on victim impact, not the crime facts. Deputy District Attorney A. J. Brady stated : “With regard to the facts of this case, this case settled before prelim inary examination, so I don’ t know how much the Court
knows or remembers about it. I would like to just give a summary. The confidential victim in this case Mr. Perry had formerly had a dating relati onship, although that dating relationship had terminated pr ior to the incident date. “On the incident date [she] was contac ted because the defendant showed up to work severely intoxicated. He is a care provider, a job which the confidential victim arranged for him to have. She’s also a ca re provider for people with disabilities. Apparently, he showed up int oxicated. She was contacted b ecause she is his supervisor. “She picked him up. On the ride home to her residence in San Rafael the defendant began making threatening statements . Specifically through the ride between being picked up and to the c onfidential victim’s apartment, the defendant indicated that he was going to get people to shoot up the place, call his friends. He was calling, it appeared, to the confidential victim, that he was calling people on cellphones saying they could come over and shoot her, shoot up the place. “When they arrived back at the apartmen t, she ran [inside], and he began making a scene outside of the apartment, again simila rly appeared to be talking on the phone3 making those same sort of threats. Eventua lly, in order to pacify him, she opened up the front door of the apartment in order to pack up his stuff because they had broken up, and
she wanted his stuff out of the house.
“Inside the bedroom the defendant be gan throwing items around, including compact disks. Some of those . . . struck the confidential victim. The defendant then pushed the victim on the shoulders onto the be d. He then straddled her with one leg between her legs, and one leg on the outside and began choking her. According to . . . an
interview I conducted w ith her, he indicated that at that time he was sayi ng he should kill her or he should rape her. But actually he ne eded a ride back home later on so he wasn’t going to rape her right then. And he also indi cated that he should call his friends to come up and rape her. And the victim indicated sh e was having difficulty breathing as a result
of that. “After the defendant let go, again the victim tried to move him out of their
residence and continued to move stuff out of th e apartment. Once th ey were both outside of the apartment, she locked the door behind her, and agai n the defendant put his arm around her, this time in sort of a headlock maneuver where her head was in the nook of his arm, and again choked her actually lifting her up off the gro und at this point. She ran away and got in the car and dr ove off and called the police. “The victim was quite distraught both at th e scene and has been since. I think that the Court probably has a good feel for that fro m the victim impact le tters, as the impact
on her has been tremendous.” Brady then advanced his sentencing pref erences, advising the court about prior arrests and other sentencing factors he coul d, given lack of a wr itten report evaluation, noting that Perry’s insistence on proceeding without one might de prive the court of
factors favorable to the defense. In proposing conditions of probation, and again lamenting the lack of formal evaluation, Bra dy proposed: “But being that I at least know that he showed up on this par ticular day so intoxicated he needed to be taken away from his place of work, that the defendant not us e, possess, or transport alcohol or illegal substances including prescribed marijuana w ithout being authorized by the Court. And4 similarly, in order to enforce that, the defe ndant be required [to] submit to chemical testing at the request of any peace officer or probation officer.” Defense counsel Kimberly Fitzgerald did not dispute any of Brady’s factual representations but added some of her own, saying her client was remorseful, accepted responsibility, had had time in cu stody to reflect on what happ ened, was young at age 23,
would use a 52-week domestic vi olence course to “help him de al better with relationships in the future,” would improve hi s parenting skills for a small s on, did not intend to see or contact Doe again, and planned to live in Sonoma. On the facts of the charges, Fitzgerald added, referencing police records: “He’s— to just take a moment to address some of the facts that the District Attorney discussed in this case, the facts as laid out sound really bad. And I th ink there is always . . . two sides of a story. And this is not to minimize or condone anything that happened, but just to try to give the Court some perspective. “There were photographs taken by the polic e officers in this case. There is no injury. There is no alleged b ite mark on her cheek. Ther e’s no injury showing that.
There’s no broken skin. There’s no scratch. There is no redness really around the neck. And there’s—the District Attorney mentioned th at the fact that he had indicate that he was going to kill her or have fri ends kill her or rape her, wh at she first told the police after the incident . . . was that he was going to kill her. Then nine days later when she talked to the District Attorney , then it changed to that he was going to rape her, have his friends come and rape her. So, there’s— there’s some differences in—in her story. [2] “She’s very young. She’s 20 years old. She just came out of a three year relationship. There’s—there’s something th at between what was stated to the police

2 A record augmentation includes a stat ement of probable cause dated March 25, 2009, which is evidently the document defense c ounsel referenced. It recites: “Perry and the victim have been dating for approx. 1 1 / 2 months and living together for 3 weeks. During an argument, Perry pushed the victim onto a bed and began choking her. Perry slapped the victim in the leg. Perry later bit the victim on the cheek, causing redness to her cheek. Earlier, Perry threat ened to shoot the victim. Th e victim is in fear for her life.”5 officers and—and the District Attorney and wh at the photographs and evidence show that everything does not really quite seem to—to match up in this case.” Perry’s briefing can be construed as ta king issue with reliance by the Attorney General on Brady’s representations about the ch arges, at least as to Perry’s intoxication, but the reliance is proper. Unsworn statem ents by counsel do not ordinarily constitute evidence ( County of Alameda v. Moore (1995) 33 Cal.App.4th 1422, 1426), but these attorney representations, on both sides, were offered in lieu of a presentence report and, while not formally stipulated as such, were meant for the co urt to rely on as evidence. The court also understood the representations that way, expressly relying on what had been said, and prefacing its ru ling by saying: “Well, I am at somewhat of a disadvantage . . . without a probation officer’s report, but I think between what you both have said, as
well as the letter from the victim and her mother, I th ink I have a fairly good understanding of—of the underlying facts.” Lack of objection by either attorney to the other’s representations further justif ies reliance on the statements. (Cf. People v. Medina (1995) 11 Cal.4th 694, 731.) The court suspende d imposition of senten ce and placed Perry on four years’ probation, with terms that he: serve nine mo nths in local custody; not contact the victim; participate in any treatment or counseling dir ected by the probation officer; and not use or possess any “illegal substances, including pr escribed marijuana, unless specifically authorized by the court.” The court explained in part: “I do believe that given what I understand to be the fact, that as this ev ent unfolded—as it began, I should say, the defendant was under the influence, apparently , of alcohol or some other substance. I
think the terms that relate to that are appropriate.” In June 2011, after Perry moved to Napa, the case was transferred to Napa County on motion of the probation depart ment (Pen. Code, § 1203.9).
Probation violation . On November 10, 2011, a petition to revoke probation was filed in Napa County Superior Court alleging that Perry “[f]ailed to successfully complete a 52 week domestic violence anger manageme nt counseling program ” and “[s]ubmitted a positive drug test on August 29, 2011 and November 3, 2011 for THC” ( People v. Rigo6 (1999) 69 Cal.App.4th 409, 413 [tetrahydroca nnabinol (THC) is the primary intoxicating ingredient in marijuana]). Probation was denied summarily that same day, and counsel was appointed for him for entry of his denial at a hearing on November 21. His counsel informed the court at that hearing that Perry said he had “at some point now, signed up for his anger management and has begun that,” and Perry had already filed a motion, acting as his own counsel, that he be allo wed to use medical marijuana under the CUA while on probation. The motion did not incl ude any medical authorization, or sworn particulars. It presented general informati on printed from the Web on spondylolisthesis,
a medical condition described as one or more vertebrae of the spine shifting forward or backward, copies of provisions of the CUA and MMP and the decision in People v.
Tilehkooh (2003) 113 Cal.App.4th 1433 ( Tilehkooh ), plus written instru ctions Perry had gotten from Kaiser Permanente on ex ercises to do fo r the condition. At a hearing on December 21, 2011, Perry admitted the probation violation, agreeing to the petition’s request th at probation be reinstated w ith a further 90 days of jail stayed pending completion of a 52-week prog ram. He had begun an anger management program, Healing in Progress, on a referral fr om probation. Defense counsel mentioned the violation as being failure to complete su ch a program, but nothing in the record shows that Perry’s admission to the probation viol ation was limited to that ground. On the pending pro per request to use medical mariju ana, defense counsel represented that Perry had a medical marijuana card in Marin County that satisfied probation there, but that his probation officer in Napa County required th at he get court approval. The court noted
lack of a doctor’s recommendation with the motion, and the probation department was recommending denial because Perry had not provided medical mari juana documentation and, in fact, had provided documents sh owing that his primary care provider recommended exercises and prescribed naproxen as need for pain, but not marijuana. The court ordered the request “[d]enied withou t prejudice” and urged Perry to get proper documentation. Perry does not cha llenge that denial on appeal.
Second medical ma rijuana request . Perry filed a sec ond pro per request on December 21, 2011, and the matt er was heard on January 6, 2012. One of the documents7 filed with the court was a me morandum from probation that discussed none of Perry’s showing but recommended denial because the minute order denying his original request had been denied “without prej udice.” No one relied on that absurd bit of circular reasoning. The focus, rath er, was on the showing made. The showing, treated cumula tively to the first, include d a “Therapeutic Cannabis Recommendation” of May 26, 20 11, by Richard Lenson, MD, of Compassionate Health Options, reciting in part that Perry was exam ined and found to have “a medical condition that in my professional opinion would bene fit from the use of medical cannabis.” The entire document is printed, except for the pa tient, date, signature, and a cryptic diagnosis of “724.2, seasonal allergies.” The “724.2” is not explained in the record, but the parties agree that it is medical code for lumbago, i.e., lower back pain. (See Find-A-Code, <http://www.findacode.com/icd-9/724-2-lumba go-icd-9-code.html> [as of Jan. 18, 2013].)
A second new document is a December 21, 2011, letter from Huma Imtiaz Sadiq, MD, of The Permanente Medical Group, Inc., in Vallejo. Naming Perry, it states: “The above named patient is seen for chronic back pain and is diagnosed with mild vertebral body wedging and that might have led to the disc bulge at L5-S1 per MRI. Patient has been using NSAIDs [3] for pain control and also being re ferred for the physical therapy.” Deputy District Attorney Jodi Dell urged denial, reas oning in essence that: the recommendation was “questionable” since it was not from a doctor who was regularly treating Perry for his condition; his “Kaiser doctor” had not said that marijuana was needed; no other doctors treating Perry, and nothing in his initial 30 pages of material, had urged marijuana use; with Perry required to do drug testing on probation, it would be “problematic for him to be able to use me dical marijuana and submit to testing”; and marijuana was still unlawful under federal law.

3 We are hindered once more by lack of r ecord explanation for a term used below, but a cursory search of the Web for “NSAIDs” reveals sites that show it as an acronym for non-steroidal anti-inflammatory drugs —meaning, for our purposes, conventional medicines, not marijuana. The court’s later reference to prescribed “anti-inflammatories” as distinct from marijuana, shows th at the court shared that understanding.8 Perry, acting as his own counsel, presen ted no declarations or other sworn testimony to bolster his showing, but said he was “no longer eligible for Kaiser,” his mother’s insurance plan , because he had turned 26 years old, that his own part time work at a store did not provide health benefits , and that medical marijuana was “the only
medication that I will be able to seek out. ” Queried by the court whether marijuana would be more expensive than his regular doctor’s recommendation of “antiinflammatories, like Advil, and Alleve [ sic ], and things like that ,” Perry offered (still unsworn): “The pills that sh e was giving me and stuff, because just regular Advil or Tylenol I’ve take [ sic ] before when I was you nger when I first starte d going to Kaiser for my back problem, and the ones they’re giving me , they either made me sick or they gave me intense heartburn. So they kept sw itching me from medicati ons, and they started putting me on these. But the same thing is happe ning. It’s just not—it’s not really taking care of the pain. It’s just sub—I mean in th e past they haven’t worked, and I don’t want to take Vicodin. I don’t want to get star ted on something like that . [¶] She—my doctor agrees with me. I’ve talked to her about my use of medi cal marijuana. She doesn’t promote it. She doesn’t deny it. [ Sic .] She just, you know, if it helps me complete my daily routines, and you know, go to work, and be able to stand, and then come home and be able to take care of my chores at home, th en she finds that it’s oka y for me to do it if I
feel that it’s fine.” The court ruled: “I’m going to foll ow the recommendation of probation. I’m going to deny your request. I’m just not satis fied with what you’ve presented here that
there is a sufficient basis for me to allow you to consume medical marijuana during your probationary period. [¶] So the request is denied.”
D ISCUSSION Leal announced “a three-step inquiry into limiting CUA use of marijuana by a probationer. First, we examin e the validity of any CUA auth orization; second, we apply
the threshold Lent test [( People v. Lent (1975) 15 Cal.3d 481, 486 ( Lent ))] for interfering9 with such authorization; [4] and third, we consider co mpeting policies governing the exercise of discretion to restrict CUA use.” ( People v. Leal (2012) 210 Cal.App.4th 829, 837 ( Leal ).) Initially, we address uncertainty abou t some of Perry’s appellate arguments
in the wake of Leal

. I. Issues Resolved by Leal Perry’s initial briefing raised seve ral arguments that our opinion in Leal resolves against him. We granted Perry leave to file a letter brief on the impact of Leal , and have received as well a response from the Attorney General, and a very recent reply by Perry, but Perry’s supplemental briefing l eaves unclear whether he accepts Leal ’s holdings on his initially briefed issues. He neither repeat s nor adds to them, but does not concede or withdraw them, either. So out of caution, we briefly adhere to the pertinent holdings in
Leal

. Much of Perry’s briefing centers on se ction 11362.795, a provision in the MMP that allows probationers like himself to seek court confirmation of CUA authorization. He argues that the section, when properly re ad, does not authorize a court to go beyond a facially valid CUA authorizatio n to deny confirmation based on Lent ; alternatively, he argues if the provision can be read that wa y, it constitutes an unconstitutional restriction by the Legislature of a voter initiative, the CUA. We rejected those arguments in Leal
, holding in essence that a trial court’s long- established power to ban otherwise lawful activity under the Lent test is inherent, not dependent on authority conferred by the CUA

4 “Under the Lent test and settled review principl es: ‘We review conditions of probation for abuse of discretion. [Citations .] Generally, “[a] condi tion of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not r easonably related to future crim inality . . . .’ [Citation.]” [Citation.] This test is conj unctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citat ions.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. [Citation.]’ [Citations.]” ( Leal
, supra , 210 Cal.App.4t h at p. 840.)10 or the MMP, and that neither enactment exp licitly or implicitly terminates that power. ( Leal
, supra , 210 Cal.App.4th at pp. 846-849.) Perry also argues that survival of the Lent test in this context renders section 11362.795 (or modi fication under Pen. Code, § 1203.3) “illusory” and impermissibly allows a trial court to seco nd-guess voter intent and the opinion of an authorizing physician. Not so. We held in Leal that the third-step inquiry means that a court finding both CUA authoriz ation and satisfaction of the Lent test cannot automatically deny confirmati on; it must go on to balance the competing public policy interests. ( Leal
, supra , 210 Cal.App.4th at pp. 843-844.) This exercise of discretion also does not constitute a prohibited second-g uessing of voters or physicians ( id . at p. 844), a prohibition more properly invok ed during the step-one inquiry into valid authorization ( id . at p. 839). Perry argued in his initial briefing that the Lent test, usually applied at an initial grant of probation, should not apply to post-judgment motions to modify, but we cannot share his view given that the same comp eting interests arise in both situations. Perry invokes language in Tilehkooh
, supra , 113 Cal.App.4th at page 1444, broadly suggesting that prohibiting CUA-au thorized use of marijuana serves no rehabilitative purpose. We ex amined that language in Leal , found it to be dictum, and disagreed, further, with the notion that proh ibiting CUA use cannot serve a rehabilitative purpose. ( Leal
, supra , 210 Cal.App.4th at pp. 849-850.) The Attorney General’s initial briefing s econded the reasoning of the prosecutor below that continuing illegality of marijuana possession under federal law is enough to justify CUA use as conduct that is in itself criminal, and her letter brief does not mention
or concede that Leal expressly rejected that notion. ( Leal
, supra , 210 Cal.App.4th at pp. 840-841 & fn. 3 .) We adhere to Leal on that point as well.
II. Step One Issues Beyond the federal-illegality argument ju st noted, Perry faults prosecutor Dell’s reasoning that Dr. Lenson’s marijuana reco mmendation was “questionable” since it was not from a doctor who regularly treated Perry and since no “Kaise r doctor” or other regular provider had said anything about marijuana being needed. Leal embraces the11 notion that, “at the step-one stage” of inquiry into the validity of a CUA authorization to use medical marijuana, courts should not second-guess faci ally valid recommendations or the wisdom of the voters in allowing mar ijuana use for conditions short of serious illnesses. ( Leal
, supra , 210 Cal.App.4th at pp. 839-840 [discussing cards issued under the MMP].) On the other hand, Leal holds that, at the step-three stage of balancing competing public policies of medical needs against rehabilita tive needs, courts may—and
must—take into accoun t “medical need and efficacy based upon evidence: the defendant’s medical history, the gravity of hi s of her ailment, the testimony of experts or otherwise qualified witnesses, conventiona l credibility assessments, the drawing of inferences, and perhaps even medical opinion at odds with that of the defendant’s authorizing physician.” ( Id . at p. 844.) Here, the prosecutor’s argument that Perry’s physician recommendation was “questionable” due to lack of corroboration by other medical providers would have been in error if applied to the step-one, rather th an step-three, stage of inquiry, but we do not see that the court ultimately did any step-one second-guessing. The court did not confine its ruling to the authorization’s validity, but heard all of the evidence and arguments and ruled, apparently more broadl y, that Perry produced an in sufficient “basis” for allowing him to use medical marijuana. 5 As Leal cautioned: “We do not suggest that the record must reveal that the three step s of inquiry . . . were consider ed and resolved in lockstep progression. Further, a balancing-of-needs fi nding against a defendant is . . . necessarily implied in a probation condition limiting or disallowing CUA use of marijuana.” ( Leal
, supra , 210 Cal.App.4th at p. 845, fn. 5.) We therefore proceed, as the Attorney General’s supplemental briefing does, on
the conclusion that the court found a facially valid authorization.

5 Because it does not appear that the co urt rested its decisi on on any problem in the validity of the authorization, we need not dwell on Dell’s concern that Dr. Lenson was not a regular medical care provider for Perry.12 III. Step Two Issues Perry argues that there wa s an insufficient nexus, under Lent , between restricting his use of medical marijuana, and either his commitment offense or preventing future criminality. There was no argument or expr ess ruling on this point , but the court, by finding an insufficient “basis ” to allow medical marijuana use, implicitly found that Lent
was satisfied. The record supports the ruling. Perry’s claim of insufficient nexus rests in part on the idea that his admission to violating probation did not included the ground that he twice tested positive for THC. The premise is faulty. As al ready noted in the background part of this opinion, while there was mention at the admission hearing of Perry’s failure to take the 52-week anger management course and no co rrelative mention of the positiv e THC tests, nothing in the ensuing admission of probation violation, or the advisements or other colloquy leading to it, limited the admission to the former ground, and the petition charged both. The minute order also states, in plural language, that Perry admitted “the te rms and conditions of [p]robation.” We would expect some limitation in the record if Perry intended his
admission to be limited in the way he now suggests. Perry also urges that, since his guilty plea to the underlying offense came before a preliminary hearing, and sentencing proceede d without a presentence report, the record lacks sufficient evidence of any nexus betw een his offense and pr ohibiting his use of medical marijuana. This premise, too, is faulty. As set out in the background part of this opinion, that very paucity of docu mentary evidence prompted counsel on both sides to make oral representations to the court about th e pertinent facts of the charges, as well as various facts bearing on Perry’s criminal a nd personal history, view s, and acceptance of responsibility. Both sides clearly meant for th e court to rely on their representations in lieu of a report, and raised no objections or corrections to the other’s statements. Then the court stated in ruling that its “understandi ng of . . . the underlying facts” was based on victim letters and “what you both have said.” Having induced the court to rely on the oral representations, and then acceded to th e court doing so, Perry cannot complain now that they were unsworn or la cked a formal stipulation to be taken in lieu of evidence.13 With those premises properly deflated, resolution of Perry’s nexus arguments is straightforward. Taking first the underlying offense, the showing was that Perry showed up at work that morning in a “s everely intoxicated” state, so intoxicated that Doe, as his supervisor, had to escort him home. On that car ride Perry began a series of threats that would include having he r raped and killed by his friends, whom he acted as though he was calling on his cell phone. She was also br utally attacked physic ally and choked, was afraid for her life, and in the end was devast ated emotionally by the threats and physical
assaults. And while it is true that there was no information whether Perry had a frequent or chronic problem with intoxication, he ob viously had a major problem that morning, with violent and devastating effects. Th ere was no showing, in fact, that anything besides
intoxication drove him to that abusive and violent state. A nd while Perry is correct to
observe that we cannot tell fro m the record just what the intoxicating substance or substances were, the court could reasonably c onclude that any kind of intoxication would have increased the risk, and thus that prohib iting marijuana use bore a sound nexus to the
offense. Alternatively, there was also a nexus to future criminality. Perry’s points about
the lack of evidence that he had a chronic or repeated intoxication problem hold more sway here, because it is possible to specu late—however unlikely it may be—that his attack on Doe was the product of an isolated, unprecedented episode of substance abuse. Putting that aside, however, it remains that Perry admitte d to probati on violations alleging that he tested positive for THC on August 29 and November 3, 2011, thus directly demonstrating a willingness to break the law through marijuana use. We are not impressed by his argument that this is not fair game because the authorization from Dr. Lenson he would later produce showed an issuance date of May 26, 2011, and expiration date of May 26, 2012, encompassing both of the alleged vi olation dates. He cites his attorney’s statement at the D ecember 21 admission hearing, about possible uncertainty in that probation in Marin County was satisfied with Perry having a medical marijuana authorization, wher eas when he moved to Napa County, probation insisted on his having court approval. One problem with this excuse is that the court in Marin14 County had forbidden possession or use of any “illegal substa nces, including prescribed marijuana, unless specifically authorized by the court .” (Italics added.) Thus even if we could accept counsel’s unsworn remarks as evidence, Napa County probation’s position was the correct one; a mere authorization was not enough to avoid violating probation. Another problem with his excuse is that, by admitting the violati on of probation, Perry forfeited any chance to assert that excuse.
The Lent test is satisfied on th is record, and thus provid es threshold discretion for
the court to interfere with auth orized medical marijuana use.
IV. Step Three Issues That brings us to step three under Leal . Finding discretion under the Lent test to interfere with a probationer’s medical use of marijuana “does not mean that the court

must impose an interfering condition, for discretionary action is, by definition, something permitted, not required.” ( Leal
, supra , 210 Cal.App.4th at p. 8 43.) Discretion is abused
when the determination is arb itrary or capricious, or exceeds the bounds of reason, all of the circumstances being considered. ( Ibid .) “The step-three exercise of discretion is vital in limiting medical use of marijuana, for it en tails a unique balance of competing public policies. On one hand, the step-one conclu sion that a defendant has CUA authorization implicates a voter-compelled polic y that qualified patients be allowed to alleviate medical problems through the use of marijuana. On the other hand, the step-two conclusion that the relationship of that lawful use to the cr imes the defendant committed, or his or her future criminality, raises a co mpeting policy consideration: the need to rehabilitate the defendant and protect the public during his or her release on probati on. The resolution of these competing policies necessarily requires we ighing the needs of one against the other before deciding whether and how much to limit the lawful conduct.” ( Id . at p. 844.) To repeat our earlier explication: “The re quisite balancing contemplates a judicial
assessment of medical need and efficacy based upon evidence: the defendant’s medical history, the gravity of his or her ailment, the testimony of experts or otherwise qualified witnesses, conventional cred ibility assessments, the drawin g of inferences, and perhaps even medical opinion at odds with that of the defendant’s authorizing physician.” ( Ibid .)15 Step three is the weakest link for Perry. With the record show ing a need to limit or prohibit marijuana use for his rehabilita tion and for protection of the public, it was incumbent on him to show, as only he could, that he had a countervailing need to use marijuana for medical purposes. Perhaps because he was ac ting as his own counsel and unfamiliar with evidentiary requirements, or perhaps not, his s howing of need was exceedingly weak. Accepting that his medical records for treatm ent of back pain established that he suffered from spondylolisth esis in his lower back, the degree of his
discomfort was not established. Perry did not submit declarati ons or testify to the matter. His CUA authorization only established that one physician felt th at he could derive “some unquantified ‘benefit from the use of marijuana’ (§ 11362.5 , subd. (b)(1)(A)) to help alleviate” his back condition. 6 ( Leal
, supra , 210 Cal.App.4th at p. 845.) No evidence showed the degree of his discomfort , or even whether he had ever gotten any relief for it from marijuana, su ch as when he used it in ad mitted violation of probation. Perry’s unsworn statements at the hearing were not evidence. Unlike the May 2009 sentencing for the underlying offense, ther e was no implicit understanding by the court and parties at this hearing that unsworn st atements were to be accepted in lieu of
evidence. There was also no proof—just the non-ev idence of his own statements—that Perry could not get effective relief from medications other than marijuana. The material he printed from the Web on spondylolisthesis (a ssuming it was somehow subject to judicial notice) described the condition as often ca using no suffering and, while sometimes problematic, “curable” by simply taking good care of oneself. Another excerpt read, as to lower back pain: “[T]here are some easy exercises with which you can easily treat the pain and reduce it up to a ma jor margin. The best treatm ent for the back pain is considered as the back stretching and body st retching exercises. These exercises can give

6 Perry makes no effort to justify medica l marijuana use to alleviate the “seasonal allergies” also diagnosed in Dr. Lenson’s aut horization, but in any event, Perry presented no evidence, medical records, or even uns worn statements, about that supposed condition.16 an effective relief to the patie nt without any hap hazard [ sic ].” Medical records Perry furnished of a November 2011 appointment he had with Dr. Sadiq showed that he was instructed to do exercises, schedule an appointment with physical therapy, and take “Naproxen ( NAPROSYN )” tablets twice a day as needed for pain. His December 2011 letter from Dr. Sadiq repeated that he had been referred to physical therapy and added that he had been “using NSAIDs for pain control.” The cour t, responding to that letter and to Perry’s (unsworn) claim of having lost medical covera ge, observed that such antiinflammatories, like Advil and Aleve, were surely less expensiv e than marijuana. The court’s implicit step-t hree finding that the need for medical marijuana was outweighed by the need for re habilitation and protection of the public is overwhelmingly supported.
V. “Reasons” for the Decision The court’s oral ruling was: “I’m goi ng to deny your request. I’m just not satisfied with what you’ve presented here that there is a sufficient basis for me to allow you to consume medical marijuana during your probationary period. [¶] So the request is denied.” Perry argues that this failed to satisfy section 11362. 795, subdivision (a)(2), which provides: “The court’s decision and th e reasons for the decision shall be stated on the record and an entry stating those reasons sh all be made in the minutes of the court.” (See fn. 1, ante , for fuller context.) The decision, but not reasons, are reflected in the court’s minute order, and failure
to include the reasons was certa inly in breach of the provision. Whether the ruling as orally rendered failed to adequately state “rea sons” may be debatable, as is the Attorney General’s position that Perry’s failure to rais e any objection on this basis below waived the issue for appeal, but we need not deci de. Any error or errors were harmless. Generally, a court’s failure to give ade quate or proper reasons , in violation of statute, is subject to review for harmless error. ( People v. Osband (1996) 13 Cal.4th 622, 729-730 [no reasona bly probability a more favorable se ntence would have been imposed in the absence of part ly faulty reasons]; People v. Price (1991) 1 Cal.4th 324, 492 [not reasonably probable that the trial court would have chosen a lesser sentence had it known17 that some of its reasons were improper]; contrast People v. Bonnetta (2009) 46 Cal.4th 143, 148-152 [no harmless error analysis for failure to set forth reasons, in the minutes. for dismissing a strike allegation in the furt herance of justice under Pen. Code, § 1385].) Perry does not argue that error he raises is reversible per se but disagrees with the Attorney General’s view that any error was ha rmless. He argues that lack of a complete statement of reasons “adversely impacted” him because it leaves us to “speculate exactly how his showing could be viewed as insuffi cient, which is precisely why the statute squarely places the onus on the trial court to specify the reasons for its decision.” It is true that one reason for requiring a statement of reasons is to enable meaningful review ( People v. Garcia (1995) 32 Cal.App.4th 1756, 1770), but as our analysis above shows,
the record does not leave us to “speculate” what shortcomings the court found in Perry’s showing. The evidentiary shortcomings were objectively clear, without need to wonder what subjective concerns, like credibility, might have further influenced the court. And finally, the existence of the c ourt’s comments at the hearing makes their lack of inclusion in the minutes harmless for review purposes. We hold to be harmless any error or errors in the expression of reasons.18 D ISPOSITION The order of January 6, 2012, denying Perry’s second request to use medical marijuana while on probation is not shown to be an abuse of discretion, and the order is
affirmed.

_ ____________ ____________ Kline, P.J.

We concur:

_____________ ____________ Lambden, J.

_____________ ____________ Richman, J.