Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tuolumne County. Eric L. DuTemple, Judge.
Rex A. Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
INTRODUCTION
Jason Earl Bell appeals from a denial of a motion to modify the conditions of his probation. For the following reasons, we will dismiss the appeal.
STATEMENT OF THE CASE
In a three-count felony complaint filed by the Tuolumne County District Attorney’s Office naming Bell and a co-defendant, Bell was charged with count one – second degree commercial burglary (Pen. Code, § 459); and count three – petty theft with a prior theft conviction (§ 484/666). On November 6, 2006, Bell pled guilty to count three, and count one was dismissed pursuant to a plea agreement.
Further statutory references are to the Penal Code unless otherwise stated.
A probation report was prepared and Bell was sentenced on December 4, 2006. The court suspended imposition of the sentence and placed Bell on five years probation. Bell’s probation terms prohibited him from possessing or using a controlled substance without a prescription from a doctor. Furthermore, Bell was ordered not to use unauthorized drugs, narcotics, or controlled substances and to submit to drug testing as directed by probation.
On December 13, 2007, more than a year after he was ordered on probation, Bell filed a motion to modify the terms of his probation. Specifically, Bell requested that the terms of his probation allow him to use cannabis upon the recommendation from a medical doctor. Following a hearing on December 27, 2007, the trial court denied Bell’s motion to modify noting that the Compassionate Use Act, and specifically Health and Safety Code section 11362.795, subdivision (a), can be posed as a defense to any alleged probation violation.
Bell appeals the denial of his motion to modify the conditions of probation.
Because a plea was entered, the statement of facts is based upon the probation officer’s report.
On May 22, 2006, Bell, who was accompanied by his girlfriend and the co-defendant, entered Pak-N-Save in Sonora, California. Bell proceeded to the meat counter and ordered three tri-tip roasts. While the butcher was cutting the meat, Bell grabbed a bottle of steak sauce from the shelf. After receiving the meat, Bell placed the meat and bottle of sauce into a white Pak-N-Save bag that was in his pocket. Bell then left Pak-N-Save without paying for the items.
Violation of Probation
At the time he committed the instant offense, Bell was on two grants of misdemeanor probations. Bell was on probation for misdemeanor assault and misdemeanor possession of marijuana. On December 4, 2006, Bell admitted he violated probation in each case.
DISCUSSION
The People contend that the denial of Bell’s motion to modify the conditions of probation is unappealable because: 1) Bell forfeited his right to appeal when he did not timely object to or appeal from his probation conditions; and 2) Bell’s forfeiture was not remedied by the motion for modification given that there were no changed circumstances since Bell claimed that he had a doctor’s recommendation for marijuana at the time he was placed on probation. We agree.
In general, the failure to make a timely objection to a probation condition forfeits the claim of error on appeal. (People v. Welch (1993) 5 Cal.4th 228, 234.) Furthermore, the failure to file a timely appeal forfeits a claim because it deprives the appellate court of jurisdiction. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.) Here, Bell was required to file an appeal within 60 days of December 4, 2006, but did not file an appeal until more than a year later, on December 19, 2007.
Bell’s subsequent motion to modify the terms of his probation, and then appeal from the denial of that motion do not remedy his failure to timely object or appeal from the original probation order. An order modifying probation terms is generally appealable. (In re Bine (1957) 47 Cal.2d 814, 817.) However, the denial of a motion seeking modification of probation terms is generally not appealable. The reason is that “[b]ecause the order granting probation was appealable, [appellant]’s failure timely to do so precludes this belated attempt to appeal from an order denying modification. To hold otherwise would condone extending the jurisdictional time limit for filing appeals through bootstrapping. [Citation.]” (People v. Djekich (1991) 229 Cal.App.3d 1213, 1219.)
There is some support for Bell’s contention that the denial of a motion for modification of probation is appealable where Bell could not have filed the same appeal at the time he was sentenced. (See People v. Romero (1991) 235 Cal.App.3d 1423, 1425-1426 [order denying motion for early termination of probation under section 1203.3 and expungement of conviction under section 1203.4, is appealable as an order after judgment affecting substantial rights]; People v. Chandler (1988) 203 Cal.App.3d 782, 787 [order denying motion to expunge conviction under section 1203.4, is appealable because it affects a defendant’s substantial rights]; but, see People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4 [declining to reach the issue of whether an order denying modification of probation terms in a plea agreement under section 1203.3 is appealable; instead treating the appeal as a writ of habeas corpus].) However, Bell cannot demonstrate that the changed circumstances of his case justify modification of the probation conditions. Here, the record indicates that appellant advised probation on November 18, 2006, that he had a “recommendation” from a doctor for marijuana but that he was trying to stop smoking marijuana. This conversation was included in the probation report. Nevertheless, Bell did not object to the probation conditions or file an appeal within 60 days from the order imposing probation. Bell also contends that only recently did his probation officer threaten to revoke his probation if he used marijuana because “she uses federal law.” However, at the time he was sentenced, marijuana use was illegal under federal law even with a doctor’s recommendation. Thus, Bell cannot show that he could not have filed the same appeal at the time that he was sentenced. Therefore, the instant appeal does not raise a cognizable issue and must be dismissed.
In his appellate brief, Bell asks this Court, if we hold that he is appealing from a nonappealable order, to consider his appeal as a writ of mandate or to consider it as a writ of habeas corpus. We decline to exercise our discretion to do so as the trial court in this case has already indicated that Bell could raise the Compassionate Use Act as a defense to a violation of his probation terms. The merits of that defense should be left to the trial court to decide first.
DISPOSITION
For the reasons stated, the appeal is dismissed.
WE CONCUR: Gomes, J., Hill, J.