Opinion
No. C042211.
10-1-2003
THE PEOPLE, Plaintiff and Respondent, v. DARREN LEE GANDY, Defendant and Appellant.
Darren Lee Gandy appeals from an order sending him to state prison, following a finding that he violated two conditions of his probation, to wit: associating with a minor without being accompanied by an unrelated responsible adult, and violating section 11357, subdivision (b) of the Health and Safety Code (misdemeanor possession of marijuana).
Gandy contends (1) the evidence was insufficient to support the finding of misdemeanor marijuana possession; and (2) he was improperly found to have violated the "responsible adult" condition. We reject both arguments and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2000, Gandy pleaded guilty to furnishing a controlled substance to a minor (Health & Saf. Code, § 11361, subd. (b)) and annoying or molesting a child (Pen. Code, § 647.6, subd. (a)). He was placed on probation. Included among the conditions of probation was that Gandy obey all federal, state and local laws, and not associate with any persons under the age of 18 unless accompanied by an unrelated responsible adult.
In April 2001 and May 2002, Gandy admitted violating the conditions of his probation. Each time the court reinstated probation upon the same conditions set forth in the October 2000 disposition, although reinstatement after the first violation carried an additional condition of one year in the county jail.
On June 27, 2002, Gandys probation officer filed an affidavit alleging that Gandy had again violated the conditions of his probation the previous day by (1) possessing marijuana and (2) associating with Michael W., a minor under the age of 18, who was unaccompanied by a responsible adult.
At the revocation hearing, the following evidence was introduced: On June 26, 2002, 15-year-old Michael W. and Christopher Cook met Gandy at Hillcrest Park. Gandy knew that Michael W. was only 15 years old and he had been alone with Michael on several previous occasions. Cook had just turned 18 on June 5. Gandy and Michael rode to the park on their bicycles; Cook rode on the handlebars of Michael W.s bicycle.
Gandy wanted Cook and Michael W. to buy him some marijuana, so the trio rode their bikes to an apartment on Melton Drive. Gandy went into the apartment and emerged half an hour later, but no marijuana transaction occurred.
The threesome then headed toward Michael W.s fathers house, with Cook again riding on Michaels handlebars, when they were stopped by probation officer Heather Spurgeon. Upon searching a backpack which Gandy had been carrying, Spurgeon recovered a partially smoked marijuana cigarette. The cigarette was a "very small piece." However, the states expert testified that it contained a usable quantity of marijuana.
The trial court found that Gandy violated both conditions of his probation as alleged in the probation officers declaration. This time the court denied probation and sentenced Gandy to five years in state prison.
DISCUSSION
I
Substantial evidence of Marijuana Possession
In his opening brief, Gandy challenges the sufficiency of the evidence to support the trial courts true finding that he possessed marijuana in violation of Health and Safety Code section 11357, subdivision (b) because there was no evidence the marijuana cigarette recovered from his backpack contained a usable quantity. Gandy pointed out the cigarette stub was very small, that it had not been weighed and "[t]here was no testimony the `very small piece was usable."
In their respondents brief, the People noted that Deputy Probation Officer John Krohn, a 10-year veteran who was familiar with marijuana and had seen and tested it numerous times, testified that in his opinion the quantity was usable.
In his reply brief, Gandy apologizes to this court for having overlooked Krohns testimony, and concedes that the evidence was sufficient to support the finding of marijuana possession. We accept the concession. The record supports an implied finding that the quantity of marijuana recovered from Gandys backpack was usable. (See People v. Rubacalba (1993) 6 Cal.4th 62, 66.)
II
The "Responsible Adult" Condition
Gandy also challenges the true finding that he violated the probation condition that he "[n]ot associate with persons under the age of 18 unless accompanied by an unrelated responsible adult." While not contesting that he was in the company of minor Michael W., Gandy asserts that he was also accompanied by Chris Cook, who had attained the age of 18 three weeks prior to June 26, 2002. Contending that the pivotal issue is whether Cook was a "responsible adult" as defined in the condition, Gandy points to several dictionary definitions of the word "responsible." Enigmatically, Gandy then rejects all of these definitions and argues that because the word is not precisely defined, "a mentally competent person, lacking any other obvious disqualification, should suffice." Since there was no evidence Chris Cook did not meet this definition, Gandy claims he should not have been found to have violated the "responsible adult" condition. Gandy maintains that any definition of the word "responsible" other than the one he proposes (i.e., "competent") would be void for vagueness because it would not have sufficiently apprised him of the prohibited conduct, thereby violating his due process rights.
Gandy may not assert this constitutional argument because he failed to raise it at any time in the trial court. (In re Josue S. (1999) 72 Cal.App.4th 168, 170-171; People v. Gardineer (2000) 79 Cal.App.4th 148, 151.) The record shows that the trial judge who granted probation carefully explained the conditions thereof, specifically mentioning the prohibition against associating with minors. Gandy assured the court he understood all of these conditions and would follow them. No claim was made that the word "responsible" was uncertain or vague. "A defendant who contends a condition of probation is constitutionally flawed still has an obligation to object to the condition on that basis in the trial court in order to preserve the claim on appeal." (People v. Gardineer, supra, at p. 151.) Because Gandy did not do so, his claim is waived.
One appellate case has held that a defendant may raise a claim that a probation condition is unconstitutional for the first time on appeal when it presents "`pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." (In re Justin S. (2001) 93 Cal.App.4th 811, 815, citing People v. Welch (1993) 5 Cal.4th 228, 235.) Assuming that exception is viable, it would still not help Gandy.
Gandys convictions involved furnishing marijuana to a 15-year old and masturbating in the presence of two 14-year-olds. Obviously the condition prohibiting Gandy from associating with minors in the absence of a "responsible adult" was a crucial, indeed indispensable, element of the trial courts grant of probation. The meaning of the term "responsible adult" was a matter which was thus closely connected to the factual milieu of this particular case, and could easily have been explained by the court had Gandy or his attorney voiced confusion or requested a clarification. Gandys vagueness challenge therefore does not present pure questions of law untethered to the sentencing record developed in the trial court, and the waiver exception set forth in In re Justin S., supra, is not applicable.
Even were we to find merit in Gandys challenge to the courts finding that he violated the "responsible adult" condition, we would nevertheless affirm the order. Gandy indisputably violated the "obey all laws" condition by possessing marijuana. This was the third time he had violated the terms of his probation. As the probation report indicates, the circumstances of this violation showed that Gandy had immersed himself in precisely the same sort of behavior — associating with juveniles in the context of marijuana use — which led to his original convictions. Clearly, Gandy had expended his final opportunity at leniency.
Thus, assuming error in the courts finding that Gandy violated the second probation condition, we are satisfied that such error would be harmless. There is simply no reasonable probability that the outcome of the hearing would have been different had the court found one probation violation instead of two. (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The order appealed from is affirmed.
DAVIS, J. and MORRISON, J. are concur.