Opinion
D070069
08-20-2018
THE PEOPLE, Plaintiff and Respondent, v. MARTY J. BLANCO, Defendant and Appellant.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON REMAND
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. SCD262535) APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. Meza and Louis R. Hanoian, Judges. Affirmed. Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Marty J. Blanco as charged of two counts of possession of controlled substances for sale. (Health & Saf. Code, §§ 11378 [methamphetamine], 11359 [marijuana].) These substances were confiscated during a search of her home authorized by a search warrant. After the verdict, the trial court sentenced Blanco to three years' felony probation, conditioned on serving 180 days in county jail and being subject to other specified terms of probation. She appeals.
All further statutory references are to this code unless otherwise indicated.
Pretrial, the court held a hearing in camera to consider Blanco's motions (1) to disclose a confidential informant and (2) to unseal, quash and traverse the search warrant. The court examined the investigating detective's sealed affidavit supporting the search warrant and heard testimony, then denied the motions, with one exception. The court unsealed one sentence from the detective's supporting affidavit, regarding recent surveillance he had conducted of Blanco's home.
On appeal, Blanco first requests that we independently review the search warrant to determine whether all the material in the supporting affidavit was properly sealed, or whether it contained information about a material witness that should have been disclosed to Blanco, on the issues of probable cause to search her home or her guilt of the offenses. (People v. Hobbs (1994) 7 Cal.4th 948.) As will be explained, we conclude the supporting affidavit was properly sealed, with the exception identified by the trial court. Nothing further in it required disclosure for Blanco to have a fair trial.
Blanco next contends that several conditions of her probation are unconstitutionally overbroad, regarding requirements for obtaining approval from the probation officer as to her residence and employment, and for travel outside the county of San Diego. (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.) [probation conditions are unconstitutionally overbroad if they limit constitutional rights without being narrowly tailored/reasonably related to compelling state interest in rehabilitation, etc.].)
At sentencing, Blanco did not object to the probation conditions being imposed. Although she now claims constitutional error, effectively, she has only argued that in view of her particular situation, the trial court exercised its authority erroneously. However, she did not create a record to allow us to evaluate whether such otherwise lawful conditions were inappropriately imposed, and we therefore apply traditional objection and waiver principles to treat her appellate arguments on this point as forfeited. (People v. Welch (1993) 5 Cal.4th 228, 236 (Welch).)
On another sentencing issue, Blanco argues it was error for the court to impose penalty assessments in addition to a $50 criminal laboratory analysis fee (the lab analysis fee), thereby increasing that amount to $205. (§ 11372.5.) Blanco contends that the precise language of section 11372.5, subdivision (a) describes a predominantly administrative fee that should not support the inclusion of penalty assessments. (People v. Watts (2016) 2 Cal.App.5th 223 (Watts).) We rejected this claim and affirmed the judgment. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1520-1522 (Martinez) [lab analysis fee is a fine that increases the total fine, and that is subject to penalty assessments].)
Section 11372.5, subdivision (a) provides in pertinent part: "Every person who is convicted of a violation of [numerous drug laws, including, as relevant here, § 11378, etc.] shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense. The court shall increase the total fine necessary to include this increment." --------
After this court filed its opinion, the Supreme Court granted review and held the case pending resolution of People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz). The court has since remanded this case to our court with directions to reconsider our opinion in light of Ruiz. We have followed the high court's direction and reconsidered our opinion. As we will discuss, our prior opinion is consistent with the holding and analysis in Ruiz. We will again affirm the lab fee and the applicable penalty assessment.
FACTUAL AND PROCEDURAL BACKGROUND
At trial, San Diego Police Detective Ruben Hernandez testified that he was the case agent for executing a search warrant at Blanco's residence on June 16, 2015, in the College area of San Diego. When he talked to her to explain why he and fellow officers were there, he asked if she had any illegal narcotics in her residence. She admitted there were and showed him a small baggie on the dresser top that had a crystal-like substance in it, and a couple of baggies of marijuana in a drawer. As the officers searched, they found additional bindles of a crystal-like substance that were wrapped in black electrical tape, and that turned out to be methamphetamine when tested. Officers also found several little digital scales, black electrical tape and some empty clear plastic baggies of the type commonly used to package narcotics, as well as some white powder and a marijuana cigarette ready for use. They also found about $280 in cash, a little pistol and some containers used to keep other drugs hidden. There was a safe located in the living room containing Ziploc bags of marijuana. When the officers searched Blanco's car pursuant to the search warrant, they found illegal methamphetamine smoking devices in the trunk.
The detective and a criminalist testified that the methamphetamine found at the house weighed about 46 grams and represented about 900 single uses. Its street value would be between $1,000 and $1,200. The detective thought that the amount of marijuana found, about 310 grams, was worth about $200, although it was evidently not tested in a laboratory. Based on his training and experience, Hernandez concluded from the amounts of drugs and equipment found at the house that the drugs were most likely possessed for sale, although some personal use was also possible.
During the defense case, Blanco presented evidence that she had cared for her sick grandmother at her home for a few years, and then continued to live at the family home after her grandmother died, without paying rent. Blanco's mother gave her cash every week or two to pay bills. Her mother knew that Blanco had started using drugs in high school and had been in rehabilitation facilities a couple of times, but she seemed to be continuing to use drugs off and on. Blanco's father also gave her cash every few months, when he had it.
Blanco testified about the day that the warrant was executed and how she had forgotten that her estranged husband had left some methamphetamine at the house, until she rediscovered it the weekend before the detectives arrived and put most of it away. Half of that methamphetamine was supposed to be hers, but she thought her husband had stolen it and had not made any plans to sell it. She had most recently used methamphetamine a few weeks before the warrant was served.
Blanco testified that her husband had also left some marijuana at the house, that he grew or got somewhere else, but she had forgotten about it. The money found at her house was money that her mother gave her for expenses. She had not held a job since she stopped caring for her late grandmother two years before. The scales found at the house had been used in the 1990's, when she and her husband used to go gold mining as a hobby. She and her friends used baggies for craft purposes.
Following instructions, the jury convicted Blanco of both counts, and she appeals.
DISCUSSION
I
REVIEW OF SEARCH WARRANT AFFIDAVIT AND TRANSCRIPT
A. Background
During the pretrial motion hearing, Blanco contended that the identity of a confidential informant presumably used by detectives to investigate the case should be disclosed to her, as a material witness on probable cause to search her residence or on her guilt of possessing the drugs seized there. She argued that an order unsealing or quashing the warrant would assist in her defense. At the hearing, the court framed the issues as including whether the informant was a material witness to the crimes with which Blanco was charged, in terms of whether there was a relationship between them, the crime and/or the premises that were searched, to arguably provide her with any incriminatory or exculpatory evidence. The court also considered whether sufficient probable cause had been demonstrated for the search warrant and if its supporting materials contained any material misrepresentations or omissions.
At Blanco's request and with the People's agreement, the trial court inspected the entire warrant for the search of Blanco's home, for the purpose of determining whether the affidavit supporting it was properly sealed to protect the identity of the confidential informant. Blanco and her attorney were excluded from the courtroom, and the court took testimony from Detective Hernandez regarding the informant's relationship to the defendant, the crime, and the premises that were searched. The court ruled that the sealed attachment affidavit to the search warrant should properly remain confidential, to protect the informant's identity. The court explained that any evidence from the informant would be related to the probable cause for the search of the house, and there was no indication the informant could provide any evidence of guilt on the charged offenses, or that his or her testimony would tend to exonerate Blanco or show that there was another witness to the crime charged. No reasonable possibility existed that nondisclosure would deprive Blanco of a fair trial.
However, the trial court disclosed to the defense one sentence in the attachment, as follows: "Within the last 10 days, I conducted surveillance of the property and saw people come and go from the location consistent with that of narcotic activity." After hearing further argument, the court concluded there was no showing that the informant could provide exculpatory evidence, or was a material witness. Based on that, the court denied the motion to quash and traverse the search warrant and to suppress evidence, except as noted.
B. Analysis
" 'The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. [Citations.] "The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." ' [Citations.]" (People v. Thuss (2003) 107 Cal.App.4th 221, 235.)
On review, we have augmented the record to include the sealed affidavit that was attached to the search warrant, and the sealed portion of the reporter's transcript of the hearing. Pursuant to the procedure set forth in People v. Hobbs, supra, 7 Cal.4th 948, and as the People have conceded is appropriate, we have independently reviewed the sealed materials. Having done so, we conclude that the affidavit supporting the search warrant was properly sealed and only the identified sentence, as previously conveyed to Blanco, was appropriately subject to disclosure. This record does not require that further information be disclosed to Blanco, to assure her that probable cause existed for the search and that trial on the issue of guilt was properly conducted.
II
PROBATION CONDITIONS
For the first time on appeal, Blanco contends that several conditions of her probation are unconstitutionally overbroad, the requirements that she obtain probation officer approval of her residence and employment and of any travel outside of San Diego County. Blanco contends her concerns are not directed toward the reasonableness of the conditions, but instead are of constitutional dimension, and thus she did not forfeit them by not mentioning them in the trial court. (Sheena K., supra, 40 Cal.4th 875, 885-886 [no forfeiture on appeal of challenges to probation conditions based on "facial constitutional defects"].)
A. Applicable Legal Principles
Sentencing courts have broad discretion in imposing conditions of probation meant to protect the public and rehabilitate the defendant. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) Review of probation conditions is conducted under an abuse of discretion standard. (Id. at p. 1121.) A trial court abuses its discretion in imposing probation conditions if its decision is arbitrary, capricious or irrational. (Ibid.) A probation condition is invalid if 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 reasonably related to future criminality . . . ." ' " (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin), quoting People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) All three parts of this test must be satisfied before a reviewing court will invalidate a condition of probation. (Olguin, supra, at p. 379.)
A probationer is not entitled to the same constitutional protections as other citizens, and a probation condition infringing on a constitutional right is permissible if it serves the purposes of rehabilitation and public safety. (People v. Peck (1996) 52 Cal.App.4th 351, 362.) "A probation condition should be given 'the meaning that would appear to a reasonable, objective reader.' " (Olguin, supra, 45 Cal.4th at p. 382.) The probation department's authority to supervise compliance with the conditions of probation does not empower the department's officers to engage in irrational conduct or make irrational demands. (Id. at p. 383.) Probation conditions should be evaluated in context, and only reasonable specificity is required. (People v. Lopez (1998) 66 Cal.App.4th 615, 630 (Lopez); see People v. Bauer (1989) 211 Cal.App.3d 937, 944 [probation condition requiring prior approval of residence by a probation officer was invalid as unduly infringing on constitutional rights of travel and freedom of association].)
Not every constitutionally based challenge to a probation condition will survive the application of a forfeiture rule. (Sheena K., supra, 40 Cal.4th 875, 889.) Some such challenges "do not present 'pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court.' " (Ibid., citing Welch, supra, 5 Cal.4th at p. 235.) " 'In those circumstances, "[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court." ' " (Sheena K., supra, at p. 889, citing Welch, supra, at p. 236.)
B. Probation Report and Analysis
In the probation report, Blanco disclosed to the interviewing officer that she was continuing to use marijuana daily, as well as about one gram of methamphetamine daily, most recently the day before the interview. She continued to deny that she had been selling drugs, saying she got them through friends. She was last employed full time in 1989, and had sometimes worked since then, although she did not have any regular source of income. A friend was planning to offer her a job. She did not express any remorse about the offenses, and did not believe she would benefit from receiving alcohol or drug treatment. She thought she would be able to do well on probation because she had done so in 1991, when summary probation was ordered for her only previous recorded offense, a misdemeanor.
Among the probation conditions imposed were requirements that Blanco notify the probation officer of changes in her employment and residence. She was further required to obtain the probation officer's approval of her employment and residence, and for any out-of-county travel. Also, court approval was required for her to move out of state. At the sentencing hearing, her counsel discussed the probation conditions with her and she said she understood and agreed to them, without challenge.
On appeal, Blanco now contends that several related probation conditions imposed were adequate for her needs, regarding notification of changes in her status. She argues that the additional conditions requiring probation officer approval of her residence, employment, and out-of-county travel were not adequately tailored to meet the goals of addressing the nature of her offenses or the state's goal of rehabilitation. (Bauer, supra, 211 Cal.App.3d at p. 944.) Regarding the travel restriction, she seeks to have a knowledge requirement imposed, as she could inadvertently violate the current condition.
The challenged conditions can be interpreted as enabling ready supervision of Blanco's activities, with the goal of preventing future criminality but without imposing an undue burden on her constitutional rights. (Lent, supra, 15 Cal.3d at p. 486; In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) To the extent that Blanco argues they were excessive or overbroad in nature, she has failed to provide this court with a record to explain why they lack any justification in her particular circumstances.
"Traditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court." (Welch, supra, 5 Cal.4th at p. 236.) The forfeiture doctrine properly applies to this new defense objection on appeal to discretionary sentencing choices, which were presumably "premised upon the facts and circumstances of the individual case." (Sheena K., supra, 40 Cal.4th 875, 885.) Blanco had the opportunity at sentencing to object to any perceived facial constitutional flaws in the conditions regarding her freedom to associate and travel. If her counsel had done so, the trial court would have had occasion "to consider, and if appropriate in the exercise of its informed judgment, to effect a correction." (Id. at p. 889.) Lacking such a record, we have no basis to accept her appellate arguments of overbreadth. It remains within her rights to petition the probation officer for a review of a particular condition, or to seek relief from the trial court in modifying or vacating the order, based on significantly changed circumstances.
III
ALLOWABLE AMOUNT FOR LAB ANALYSIS FEE
Based on the probation officer's recommendation, the trial court imposed a lab analysis fee of $205, composed of the $50 statutory amount plus $155 in penalty assessments. Blanco acknowledges that she did not make any objection at the trial level to the amount of the fee, but claims entitlement to challenge this sentence component as unauthorized by section 11372.5. Such statutory interpretation issues are questions of law that may be addressed here, regardless of any waiver or forfeiture contentions by the attorney general's office. (See People v. Talibdeen (2002) 27 Cal.4th 1151, 1153, 1157 (Talibdeen) [newly raised claim is cognizable on appeal if it addresses legal error at sentencing that is correctable without reference to or need for factual findings]; People v. Wallace (2004) 120 Cal.App.4th 867, 874 (Wallace) [punitive nature of assessment is determined by reference to evident purpose of statutory scheme].)
Section 11372.5, subdivision (a) mandates that "[e]very person who is convicted of a violation of [e.g., § 11378] shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense." The statute next requires that the court increase the total "fine" necessary to include this increment. (Ibid.) Based on her reading of the statute, Blanco claims the lab analysis fee should be reduced to the statutorily specified "fee" amount of $50. She argues this type of fee is not punitive in nature, but rather administrative, and it should not qualify as a "fine" or "penalty," to which penalty assessments can be added. (People v. Vega (2005) 130 Cal.App.4th 183, 194-195 ["fines are imposed for retribution and deterrence; fees are imposed to defray administrative costs"].)
Blanco's argument mainly relies on the opinion in Watts, supra, 2 Cal.App.5th 223, 234, in which the court determined the lab fee under section 11372.5, subdivision (a) is an administrative fee and not a fine. The court in Ruiz has rejected the analysis in Watts and disapproved of the opinion as it relates to the lab fee analysis. (Ruiz, supra, 4 Cal.5th at pp. 1118-1119, 1122, fn. 8.) The high court has determined the lab fee at issue here is punishment for the offense to which it is attached. As such, it is a fine and thus subject to penalty assessment. Following the guidance in Ruiz, we again determine the trial court properly imposed the challenged fees and penalty assessments.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: NARES, J. AARON, J.