Opinion
F081938
06-22-2022
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO GARCIA, Defendant and Appellant.
Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF180771A David R. Lampe, Judge.
Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION AND BACKGROUND
Defendant was granted three years of probation after a jury convicted him of assaulting his father and sister. He contends on appeal the trial court erred in (1) including marijuana in the list of prohibited substances as a condition of probation and (2) imposing fines, fees, and assessments without determining whether defendant had the ability to pay them. The People argue that defendant forfeited both issues by failing to object when the trial court imposed the probation conditions and the fines, fees, and assessments. We agree and affirm the judgment.
The District Attorney of Kern County filed an information on June 10, 2020, charging Alejandro Garcia with felony assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1) and misdemeanor assault (§ 241, subd. (a); count 2). As to count 1, the information alleged that defendant had a prior serious or violent felony conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and a prior serious felony conviction (§ 667, subd. (a)). Defendant pleaded not guilty.
Undesignated statutory references are to the Penal Code.
On September 22, 2020, after a five-day jury trial, the jury acquitted defendant of felony assault with a deadly weapon (§ 245, subd. (a)(1)) but convicted him of the lesser included offense of assault (§ 240, subd. (a)) and misdemeanor assault (§ 241, subd. (a)).
On October 19, 2020, the trial court suspended imposition of sentence and placed defendant on concurrent, three-year terms of probation as to both counts, including probation conditions that defendant serve 364 days in the county jail and refrain from the illegal use and possession of marijuana or any other narcotic, restricted, or hallucinogenic drug.
In addition, the court ordered defendant to pay a $500 domestic violence fee (§ 1203.097, subd. (a)(5)), a $150 restitution fine (former § 1202.4, subd. (b)), a suspended $150 probation revocation restitution fine (§ 1202.44), victim restitution (former § 1202.4, subd. (f)), $80 in court operations assessments (§ 1465.8, subd. (a)(1)), and $60 in criminal conviction assessments (Gov. Code, § 70373).
The court ordered restitution in an amount to be determined by probation as to Jose (count 1), Raquel (count 2), and the California Victim Compensation Board and that restitution remain open as to both the victims and the California Victim Compensation Board. (Former § 1202.4, subd. (f)(2).)
This timely appeal followed on October 20, 2020.
FACTS
Jose G. testified that he lived with defendant, his son, and Raquel G., his daughter. On April 19, 2020, Jose fought with defendant because Jose was upset that defendant brought home a pregnant dog. During the argument, defendant picked up a metal stick. While they were arguing in the backyard, Raquel came out of the house and began arguing with defendant. Jose initially testified that defendant punched Raquel, then admitted on cross-examination that defendant did not punch Raquel that day, and that it happened at another time. Jose also testified that defendant tried to hit Raquel with the metal stick but then corrected himself and testified that he never saw defendant raise the metal stick.
Pursuant to California Rules of Court, rule 8.90, we refer to the victims by their first names and last initials and thereafter by their first names. No disrespect is intended.
Jose testified that Raquel called the police at his request. Jose spoke with the officer and told the officer that defendant had threatened Raquel with the metal stick. However, Jose denied telling the officer that defendant had raised the metal stick over his head to hit Jose. Jose testified that he was afraid of defendant while they were arguing.
Raquel testified that she lived with her father, Jose, and that her brother, defendant, was staying with them. Defendant and Jose started arguing and yelling at each other in the backyard. Raquel tried to intervene, and defendant attempted to punch her once with his fist and a second time with a weapon. Raquel testified that she did not previously tell the police or the defense investigator that defendant attempted to punch her. Jose attempted to intervene when defendant tried to punch her and then defendant raised the metal stick over his head and attempted to swing at Jose. Defendant was within three feet of Jose at the time. Raquel denied telling the defense investigator that defendant raised the bar in the air but did not attempt to swing the metal stick at Jose. Raquel called the police and while she was on the phone, defendant swung the metal stick at Jose. Raquel pushed Jose back so he would not be injured. Raquel testified that when defendant heard her describe his clothes to the dispatcher, defendant ran into the house, changed his clothes, and left.
Officer Armando Pantoja of the Arvin Police Department responded to Jose's residence. Jose was upset, startled, sad, and crying. Jose told him that defendant attempted to punch Raquel and that Jose stepped between them to prevent the attack. Jose also told Officer Pantoja that defendant picked up a metal object from the garage floor with his right hand, raised it above his head as if to strike Jose, and swung the object at Jose's head. Raquel pushed Jose out of the way to avoid Jose being hit. According to Jose, defendant then bent the metal rod into the shape of an "L" and threw it on the garage floor.
Officer Pantoja testified that he also spoke with Raquel and she told him that defendant attempted to strike Jose and she pushed Jose out of the way. Raquel told Officer Pantoja that defendant held the bar in his right hand above his head and swung it at Jose's head.
The prosecution played Raquel's 911 call to the police, and Raquel told the dispatcher that defendant was trying to hit Jose with a metal stick but that she managed to interfere.
DISCUSSION
I. The trial court did not abuse its discretion in prohibiting defendant from illegally using and possessing marijuana as a condition of his probation.
A. Background
The probation officer recommended the imposition of standard drug terms as a condition of probation because defendant admitted he was under the influence of methamphetamine at the time of the offenses. At the sentencing hearing, defense counsel objected to the drug testing condition: "There is no foundation ... from the trial proceedings that [defendant] should have a drug testing as a condition of probation." The probation officer explained:
"[A]s far as the recommendation for drug terms, at the time of his interview [] defendant did admit he was under the influence of methamphetamine during the commission of the crime. And we just feel that may have contributed to his overall actions."
The trial court overruled the objection and imposed the standard drug terms as recommended by the probation officer including that defendant "refrain from the illegal use and possession or illegally have under his control any narcotic, restricted dangerous drug, marijuana or hallucinogenic drug, not associate or be with any person known by him to be engaged in the illegal possession or control of such substances, nor be in, around or about any place known to him where any such substance is illegally sold, supplied, stored or is present."
B. Standard of Review and Applicable Law
"The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. [Citation.] A condition 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 reasonably related to future criminality ._' [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted (Lent), superseded by statute on other grounds as stated in People v. Moran (2016) 1 Cal.5th 398, 403, fn. 6.)
A defendant who believes a proposed probation condition is unreasonable must timely object to the condition in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 882 (Sheena K.); People v. Welch (1993) 5 Cal.4th 228, 235 (Welch).) A timely objection provides an opportunity for the parties to present argument or evidence concerning the need for the condition and for the court to modify the condition if necessary. (Welch, at p. 235.) A defendant who fails to make a timely objection in the trial court typically forfeits any such argument on appeal. (Id. at pp. 234-235.) There is an exception to the general rule, not applicable here, where a defendant raises a facial challenge involving a pure question of law capable of resolution without any reference to the trial court record. (Id. at p. 235; Sheena K., at pp. 886-887.)
C. Analysis
1. Forfeiture
Defense counsel posed no objection to the condition that defendant refrain from the use and possession of drugs, including marijuana. Defendant now argues ordering him to refrain from the use of marijuana "could adversely affect [his] ability to successfully complete the drug counseling program" and is not reasonably related to his crime. Defendant also argues that his objection was preserved by objecting to the drug testing condition and that the trial court was required to excise marijuana from the list of illicit substances even without objection. We disagree.
As our Supreme Court noted, a condition of probation that requires or forbids conduct not itself criminal is valid if that conduct is reasonably related to the crime for which the defendant was convicted or to future criminality. (Lent, supra, 15 Cal.3d at p. 486.) Under Lent, the question is whether, on the record, if the imposition of such a condition is reasonable. (See ibid.) That analysis falls squarely under the forfeiture rule set forth in Welch. (Welch, supra, 5 Cal.4th at p. 237 ["We therefore hold that failure to timely challenge a probation condition on '[In re ]Bushman[ (1970) 1 Cal.3d 767]/Lent' grounds in the trial court waives the claim on appeal."].)
Defendant argues that the trial court's stated nexus between the crime and the drug condition is fundamentally flawed because defendant used methamphetamine and not marijuana. Thus, the import of defendant's arguments becomes whether that condition was appropriately tailored to his situation given the record developed. By not objecting to the inclusion of marijuana, the trial court was not able to address whether defendant, with a methamphetamine problem, could successfully participate in drug counseling if permitted to use other types of drugs. This analysis is separate from the drug testing condition that was the subject of defendant's objection. Such is specifically the type of analysis our Supreme Court has stated requires an objection to preserve, as this contention necessarily requires consideration of the trial court record. Therefore, defendant should have raised his objection in the trial court. (See Sheena K., supra, 40 Cal.4th at p. 887 [exception to forfeiture rule where challenge does not require "reference to the particular sentencing record developed in the trial court"]; Welch, supra, 5 Cal.4th at p. 235 [timely objection allows for additional evidence, argument, and potential modification of the condition].)
Defendant's failure to object has thus forfeited this issue on appeal.
2. Marijuana Prohibition
Even if not forfeited, we reject defendant's argument. Defendant challenges the probation condition prohibiting him from possessing or using marijuana as invalid under Lent. There is no dispute that the condition satisfies the second prong of Lent, as the possession and use of marijuana is not itself criminal in California. We thus address whether the marijuana condition should be invalidated because it satisfies the first and third prongs of Lent.
The first Lent prong requires a relationship between the probation condition and the crime of which the defendant was convicted. (Lent, supra, 15 Cal.3d at p. 486.) Defendant argues that he was under the influence of methamphetamine when he committed the crimes but that there was no indication that he was also under the influence of marijuana. We will therefore assume that the first Lent prong is satisfied and that the marijuana-related probation condition had no relationship to the crimes of which defendant was convicted.
We do not suggest we agree with this conclusion, only that it is not dispositive given that the probation condition survives Lent's third prong.
A probation condition satisfies the third Lent prong if it "requires or forbids conduct which is not reasonably related to future criminality." (Lent, supra, 15 Cal.3d at p. 486.) In arguing that the marijuana condition is not reasonably related to future criminality, defendant relies on the fact that he was under the influence of methamphetamine, and not marijuana, when he assaulted his family members. This fact, however, does not necessarily satisfy the third Lent prong. Defendant's circumstances disclose that he has issues with drug abuse and we can see no distinction between marijuana and methamphetamine when attempting to address defendant's substance abuse problem. Despite the legalization of recreational use of marijuana, it remains a controlled substance, classified as a hallucinogen. (Health &Saf. Code, § 11054, subd. (d)(13).)
In People v. Beal (1997) 60 Cal.App.4th 84, the court approved a condition that defendant refrain from using alcohol when also required to enroll in a drug treatment program because, "[i]t is well documented that the use of alcohol lessens self-control and thus may create a situation where the user has reduced ability to stay away from drugs. [Citation.] Presumably for this very reason, the vast majority of drug treatment programs ... require abstinence from alcohol use." (Id. at p. 87.) Given this connection, the court concluded that "alcohol use may lead to future criminality where the defendant has a history of substance abuse." (Ibid.; see also People v. Malago (2017) 8 Cal.App.5th 1301, 1308 [upholding alcohol consumption, testing, treatment, and monitoring conditions as reasonably related to prevent future criminality where defendant had a history of alcohol, marijuana, and cocaine use]; People v. Lindsay (1992) 10 Cal.App.4th 1642, 1645 [alcohol-use condition reasonably related to defendant's sale of cocaine and future criminality because "[a] person's exercise of judgment may be impaired by the consumption of alcohol, and . this could lead to [the defendant] giving in to the use of drugs"].)
In People v. Cota (2020) 45 Cal.App.5th 786, the court upheld a no-alcohol condition where the defendant, who had pleaded guilty to carrying a concealed dirk or dagger, was a "habitual user of methamphetamine and a daily user of marijuana." (Id. at pp. 788, 792.) Although alcohol was not involved in the incident, the court observed "alcohol is a drug-albeit a legal one" and noted the empirical nexus between drugs and alcohol that was described in People v. Beal, supra, 60 Cal.App.4th 84. (Cota, at p. 792.) The Cota court stated: "It would make little sense to deprive Cota's probation officer of the power to direct Cota away from alcohol as a substitute mind-altering substance when his substance abuse history is so clearly demonstrated." (Id. at p. 793.) Accordingly, Cota determined that the imposition of the alcohol probation conditions was related to preventing future criminality. (Ibid.)
Similarly, defendant's underlying offenses demonstrate impaired judgment and loss of self-control, which were undisputedly caused by drug use. It is not unreasonable to view the use of substances that tend to impair judgment and ability to control behavior-whether methamphetamine or marijuana-as increasing the risk of future commission of offenses of this type. Defendant does not dispute the relationship between his methamphetamine use and the crime. In light of defendant's substance abuse, the connection between substance abuse and his present offenses, we conclude the marijuana condition is reasonably related to preventing future criminality.
Defendant's reliance on People v. Cruz Cruz (2020) 54 Cal.App.5th 707 does not convince us that inclusion of marijuana in the list of prohibited substances as a condition of his probation was an abuse of discretion. In that case, a marijuana condition was invalidated under Lent because marijuana did not play a role in the defendant's decision to steal a vehicle and the defendant did" 'not currently suffer from a substance abuse problem.'" (Cruz Cruz, at p. 712.) The probation report stated the defendant drank alcohol only on social occasions and had been smoking marijuana twice a month. (Id. at p. 710.) Since the defendant never had an alcohol or drug problem, and his underlying offense was not related to drugs or alcohol, the marijuana-related conditions were not reasonably related to preventing the defendant's future criminality. (Id. at p. 713.) As explained above, the same cannot be said of defendant who committed his crimes while under the influence of methamphetamine and has acknowledged his need for substance abuse counseling.
We conclude the trial court did not abuse its discretion in imposing a condition that defendant refrain from the use of drugs and including marijuana in that condition.
II. The trial court did not violate due process when imposing fines, fees, and assessments without determining whether defendant had the ability to pay.
A. Background
The court ordered defendant to pay a $500 domestic violence fee (§ 1203.097, subd. (a)(5)), a $150 restitution fine (former § 1202.4, subd. (b)), a suspended $150 probation revocation restitution fine (§ 1202.44), victim restitution (former § 1202.4, subd. (f)), $80 in court operations assessments (§ 1465.8, subd. (a)(1)), and $60 in criminal conviction assessments (Gov. Code, § 70373).
Section 1203.097, subdivision (a)(5)(A) provides that probation terms for an individual granted probation involving a crime where the victim is a person defined in section 6211 of the Family Code shall include a minimum payment by the defendant of a fee of $500. If, however, the court finds after a hearing in open court that the defendant does not have the ability to pay, the court may reduce or waive this fee.
B. Analysis
Defendant argues that the trial court violated his right to due process by imposing fees, fines, and assessments without determining whether he had the ability to pay pursuant to People v. Duenas (2019) 30 Cal.App.5th 1157 (Duenas). Although he did not object, defendant disputes that he forfeited the claim and, alternatively, argues that his trial counsel rendered ineffective assistance by failing to object. The People maintain that forfeiture bars defendant's claim and defendant has failed to demonstrate his trial counsel was ineffective.
As explained below, we reject defendant's arguments against application of the forfeiture doctrine and that his counsel was ineffective.
1. Forfeiture
Defendant was sentenced in October 2020, more than 21 months after the Court of Appeal issued its decision in Duenas. Thus, although defendant did not have a statutory right to object to imposition of the minimum $150 restitution fine under former section 1202.4, subdivision (b), the $80 court operations assessments under section 1465.8 subdivision (a)(1), or the $60 criminal conviction assessments under Government Code section 70373, the parties and the trial court had ample notice of the Duenas decision.
The failure to object in the trial court generally forfeits a claim on appeal, and this principle is applicable to constitutional claims. (People v. McCullough (2013) 56 Cal.4th 589, 593; Sheena K., supra, 40 Cal.4th at pp. 880-881.) Moreover," 'discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.'" (Sheena K., at p. 888, fn. 7.) Here, as stated, defendant had ample notice prior to sentencing of the appellate decision on which he now relies to advance his constitutional claim.
Section 1203.097 requires the trial court to impose a $ 500 minimum domestic violence fee unless the defendant makes a showing of his inability to pay. (§ 1203.097, subd. (a)(5)(A); see People v. McMahan (1992) 3 Cal.App.4th 740, 749 [§ 290.3 does not require trial court to determine ability to pay prior to imposition and defendant must raise inability to pay].) But even if the trial court were required to consider defendant's ability before imposing the fee, defendant was still required to assert noncompliance with section 1203.097 in the trial court as a prerequisite to challenging the imposition of probation-related costs on appeal. (See People v. Trujillo (2015) 60 Cal.4th 850, 858 [the defendant forfeited challenge to fees under § 1203.1b by failing to object below and not asserting an inability to pay]; People v. Aguilar (2015) 60 Cal.4th 862, 864 [the defendant forfeited appellate challenge regarding probation-related costs under §§ 1203.1b, 987.8].) Thus, by failing to object to the imposition of the domestic violence fee, or seeking an ability to pay hearing prior to the imposition of the fee, defendant has forfeited his challenge on appeal. (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)
2. Ineffective Assistance of Counsel
"In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that the defendant suffered prejudice as a result of such deficient performance." (People v. Mickel (2016) 2 Cal.5th 181, 198, citing Strickland v. Washington (1984) 466 U.S. 668, 687-692.) "To demonstrate deficient performance, defendant bears the burden of showing that counsel's performance '"' "fell below an objective standard of reasonableness ... under prevailing professional norms." '"' [Citation.] To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (Mickel, at p. 198.)
"[C]ertain practical constraints make it more difficult to address ineffective assistance claims on direct appeal rather than in the context of a habeas corpus proceeding." (People v. Mickel, supra, 2 Cal.5th at p. 198.) "The record on appeal may not explain why counsel chose to act as he or she did. Under those circumstances, a reviewing court has no basis on which to determine whether counsel had a legitimate reason for making a particular decision, or whether counsel's actions or failure to take certain actions were objectively unreasonable." (Ibid.) "Moreover, we begin with the presumption that counsel's actions fall within the broad range of reasonableness, and afford 'great deference to counsel's tactical decisions.' [Citation.] Accordingly, [the California Supreme Court] ha[s] characterized defendant's burden as 'difficult to carry on direct appeal,' as a reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had '" 'no rational tactical purpose'"' for an action or omission." (Ibid.)
Defendant claims there was "no tactical or strategic reason" for trial counsel's failure to request an ability to pay hearing. The record before us does not reveal why defense counsel did not object to the domestic violence fee, restitution fines, criminal conviction assessments, or court operations assessments. There could have been legitimate reasons why defense counsel may have chosen not to object, perhaps concluding that defendant would have had the ability to pay the $790 in fees, fines, and assessments over his three-year term of probation. We once again emphasize that the record is silent on the matter. Having found forfeiture, our analysis ends.
DISPOSITION
The judgment is affirmed.
[*]Before Hill, P. J., Pena, J. and De Santos, J.