The opinion
RICHMAN, J., Concurring.
I concur in the result reached by Justice Haerle that the judgment be affirmed. I write separately, however, to say that I would refrain from the discussion in the last five pages of Justice Haerle’s opinion, the pages discussing Health and Safety Code section 11362.795, subdivision (a), the “relatively new statute” that he asserts “further . . . supports” what the trial court did here, and the statute addressed in part V of Presiding Justice Kline’s dissent. I do not think that statute is a necessary or appropriate subject, for two reasons.
First, and fundamentally, the effect of the statute was not briefed by the parties: the statute was not even mentioned in either of defendant’s briefs, and was mentioned only in passing by the Attorney General, in one sentence without exposition.
Second, the statute is unnecessary to the opinion, in light of what happened below: defendant agreed to waive any claimed right" to smoke medical marijuana. Contrary to Presiding Justice Kline’s view of what occurred, I do not read the record as involving a trial court which “impose[ed] an unlawful condition of probation.” (Dis. opn., post, at p. 860.) I view the record as *858 defendant, with full communication with his counsel, expressly waiving his claimed right so that he would avoid “jail” and continue to attend community college.
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 was 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—the circumstance to which the trial court referred as “gam[ing] the system.” And so, the trial court in essence said, “Okay, young man, I’m going to call your bluff: Quit messing with the system and get your act together.” Defendant agreed.
People v. Blakeman (1959) 170 Cal.App.2d 596, 598 [ 339 P.2d 202 ] notes that “ ‘a defendant may waive rights which exist for his own benefit....’” Indeed, as Division One of this court confirmed 50 years ago, one may waive any civil right. (Graham v. Graham (1959) 174 Cal.App.2d 678, 683 [ 345 P.2d 316 ].) This is what defendant did. It is hardly novel.
For almost 140 years California law has provided that “Any one may waive the advantage of a law intended solely for his benefit.” (Civ. Code, § 3513.) This maxim of jurisprudence has been applied in a variety of criminal cases, upholding waivers of significant rights. (See, e.g., People v. Johnson (2002) 28 Cal.4th 1050, 1055 [ 123 Cal.Rptr.2d 700 , 51 P.3d 913 ] [waiver of credits for time in custody]; People v. Valdez (1947) 82 Cal.App.2d 744, 749 [ 187 P.2d 74 ] [confrontation of witnesses]; People v. Manriquez (1922) 188 Cal. 602, 606 [ 206 P. 63 ] [time of sentencing]; People v. Tugwell (1917) 32 Cal.App. 520, 525 [ 163 P. 508 ] [public trial].)
Last year the Supreme Court confirmed all this, in Simmons v. Ghaderi (2008) 44 Cal.4th 570, 585 [ 80 Cal.Rptr.3d 83 , 187 P.3d 934 ]: “Civil Code section 3513 makes the doctrine of waiver applicable to all rights and privileges that a person is entitled to, including those conferred by statute, unless otherwise prohibited by specific statutory provisions. [Citation.]” I find no “specific statutory” provision applicable here.
*859 “The purpose of probation is rehabilitation. (People v. Hackler (1993) 13 [Cal.App.4th] 1049, 1058 [ 16 Cal.Rptr.2d 681 ] ....)... The courts have repeatedly pointed out that probation is not a right of the defendant but an act of ‘grace and clemency’ by the court, extended in the hope that the defendant may be rehabilitated. (See People v. Johnson (1955) 134 [Cal.App.2d] 140, 143 [ 285 P.2d 74 ] [‘The purpose and hope are, of course, that through this act of clemency, the probationer may become reinstated as a law-abiding member of society’]; People v. Cortez (1962) 199 [Cal.App.2d] 839, 844 [ 19 Cal.Rptr. 50 ] [‘Probation is granted to the end that a defendant may rehabilitate himself, make a responsible citizen out of himself and be obedient to the law’].)” (3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, § 502, p. 684.)
Here, an experienced, conscientious, thorough—and yes, stem—trial court exercised its discretion to get this young defendant on the straight and narrow, concluding as follows after describing defendant’s implausible story about the gun: “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, 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. If he wants to do that, I agree with you, you know, we’ve got some appellate cases that say he can, I’m going to have second thoughts about his judgment, and that suggests to the Court that he’s not very serious about what has occurred or changing things.”
Following that, and another conference with his counsel, defendant agreed “to surrender his medical marijuana card and to not smoke medical marijuana while ... on probation.”
*860 I read what happened here as being exactly what happened in People v. Juarez (2004) 114 Cal.App.4th 1095 [ 8 Cal.Rptr.3d 238 ]. There, in a unanimous opinion which did not even mention People v. Lent (1975) 15 Cal.3d 481 [ 124 Cal.Rptr. 905 , 541 P.2d 545 ], we affirmed a sentencing order which required the defendant to waive all credit for time served, concluding as follows: “the record demonstrates that the trial judge was fully acquainted with appellant’s case and made an informed decision to require the waiver of custody credits as a further incentive to complete his rehabilitation . . . .” (People v. Juarez, supra, at p. 1107 .) Substitute “use of medical marijuana” for “custody credits,” and that is what occurred here.