Opinion
A151071
07-19-2018
THE PEOPLE, Plaintiff and Respondent, v. JESSICA MONIQUE PORTER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-682578)
INTRODUCTION
Defendant Jessica Monique Porter pleaded no contest to one count of using tear gas in violation of Penal Code section 22810, subdivision (g)(1). The trial court placed her on three years formal probation.
Defendant challenges several conditions of her probation—including that she submit to random chemical tests and that she be of " 'good conduct.' " We affirm.
BACKGROUND
Defendant was arrested for spraying pepper spray at three motel employees who were trying to remove her from a room she had continued to occupy well past checkout time.
Defendant eventually pleaded no contest to the charge. The People, in turn, agreed to three years probation with no jail time, a reduction of the conviction to a misdemeanor in one year, after volunteer work and restitution.
At the sentencing hearing, the trial court imposed numerous terms and conditions of probation. These included submission to random chemical tests, payment of $9 per test, and no marijuana use even with a 215 card or recommendation (No. 21); no possession or use of alcohol or controlled substances or associated paraphernalia (No. 22); staying out of places where alcohol is the primary item of sale (No. 23); and be of good conduct (No. 48).
A "215 card," as used in the record, is shorthand for a card used to purchase medical marijuana, referring to Proposition 215, also known as the Compassionate Use Act, which was approved by ballot initiative in 1996. (Health & Saf. Code, § 11362.5.)
Defendant objected to the conditions that limited her exposure to alcohol, explaining she worked "in a place that sells alcohol." The People did not object, and the court granted a work exemption, allowing defendant to be in locations where alcohol is the main item for sale, as long as it is in the scope of her employment. Defendant also objected to the other restrictions on possession and use of alcohol and marijuana, asserting there is "nothing in this case that involves alcohol or drugs," so there is "no nexus" to the conviction. The trial court declined to eliminate these restrictions, but agreed to reconsider them if probation made a request to do so. The court also stated that if defendant provided a "medical doctor's note" explaining why she needs medical marijuana, the court would likely "grant that exemption."
Defendant appealed, claiming probation conditions 21, 22, and 23 were overbroad and not reasonably related to her crime or rehabilitation. She also claimed condition 48, which required her to " 'be of good conduct,' " was unconstitutionally vague.
After defendant filed her opening brief on appeal, the trial court modified the challenged probation conditions by vacating the second half of condition No. 21 (which prohibited use of marijuana even with a 215 card), the first half of condition No. 22 (which prohibited the use and possession of alcohol), and the entirety of condition No. 23 (which restricted entry to places that sold alcohol). All other terms and conditions remain in effect.
After the modification order, defendant filed a document in this court entitled "Appellant's Notice of Withdrawal of Part of the Relief Requested in Issue I," in which she states that she "withdraws her request for this Court to vacate Conditions 22 and 23, and the balance of Condition 21 (second sentence)."
DISCUSSION
Abandonment of Challenge to Certain Conditions
In her "Notice of Withdrawal of Part of the Relief Requested" defendant expressly and unequivocally abandoned her challenges to the second sentence of probation condition 21 (no marijuana use even with a 215 card), and conditions 22 and 23 in their entirety. We therefore need not, and do not, address any issues defendant has raised in her briefs in connection with these conditions. (See Miller v. Miller (1945) 26 Cal.2d 119, 126 [Where plaintiff "in her brief has abandoned all rights under [an] order," appeal from that order was dismissed as moot]; Burke v. City & County of San Francisco (1952) 111 Cal.App.2d 314, 316 [deeming an issue on appeal abandoned when the opening brief expressly limited itself to a different issue].)
Random Chemical Test Condition
As to the first part of condition 21—requiring defendant to submit to random chemical testing—defendant contends it fails under Lent because there is a "lack of factual nexus" to both her crime and preventing future criminality.
People v. Lent (1975) 15 Cal.3d 481 (Lent), superseded by statute on another ground as stated in People v. Brandão (2012) 210 Cal.App.4th 568, 574, footnote 2.
We "review conditions of probation for abuse of discretion" (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin)) and will "disturb the trial court's decision to impose a particular condition of probation only if, under all the circumstances," the condition is arbitrary, capricious, and unreasonable. (People v. Moran (2016) 1 Cal.5th 398, 403.) The trial court's discretion in imposing probation conditions, however, "is not without limits." (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
"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.' " (Lent, supra, 15 Cal.3d at p. 486.) All three elements of the test must be satisfied in order to invalidate the challenged probation term. (Olguin, supra, 45 Cal.4th at p. 379.) Thus, even if a challenged condition "has no relationship to the crime of which of a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (Id. at p. 380.)
Defendant correctly points out there is no evidence in the record that use of alcohol, marijuana, or any other controlled substance or intoxicant played a role in the commission of the crime. Accordingly, the chemical testing requirement " 'has no relationship to the crime of which the offender was convicted,' " and thus the first prong of Lent is satisfied. (Lent, supra, 15 Cal.3d at p. 486.)
The chemical testing condition, however, does not meet either the second or third prong of the Lent test. As for the second prong—that the condition relate to conduct which is not itself criminal—we agree with defendant's contention that the recreational use of marijuana is no longer necessarily criminal under state law. (People v. Leal (2012) 210 Cal.App.4th 829, 840-841 ["[I]t is settled that medical use of marijuana . . . is not conduct that is itself criminal for purposes of the Lent test."].) However, random chemical testing does relate to conduct which can be criminal, as possession of controlled substances without a prescription, albeit with some exceptions, violates Health and Safety Code section 11377.
With respect to the third Lent prong—that the condition requires or forbids conduct that is not reasonably related to future criminality—the random testing requirement, as an initial matter, ensures that defendant complies with the "fundamental" probation condition (No. 48) requiring her "to obey all laws." (People v. Balestra (1999) 76 Cal.App.4th 57, 69.) Furthermore, although the record does not indicate defendant has suffered any prior convictions for unlawful possession of controlled substances, it does indicate she has been arrested for several crimes in other states, including for possession of controlled substances. In addition, defendant reported using marijuana " 'a couple times per week' " since she was 19, conduct which, at the time, was illegal under both federal and state law. Thus, on this record, it cannot be said that the trial court abused its " 'broad discretion' " in determining what conditions are reasonable for the " 'reformation and rehabilitation of the probationer.' " (Olguin, supra, 45 Cal.4th at p. 379)
"Good Conduct" Condition
Defendant also claims a part of condition 48—namely, the requirement that she " 'be of good conduct' "—is unconstitutionally vague and should be stricken. Although the Attorney General does not take issue with defendant's assertion and does not oppose striking this phrase from the condition, we do not agree this language must be excised for the reasons Division Three of this court recently explained in People v. Rhinehart (2018) 20 Cal.App.5th 1123, 1128-1129 (Rhineheart).
In its entirety, condition 48 directs defendant to: "Be of good conduct & obey all laws."
As did the defendant in Rhineheart, defendant here relies on In re P.O. (2016) 246 Cal.App.4th 288, 299, in which this court concluded conditions requiring the juvenile to " 'be of good behavior and perform well' " at school or work and to " 'be of good citizenship and good conduct' " were impermissibly vague. As Rhineheart observes, the provisions challenged in P.O. were not tethered to any further definitional language. Specifically, "[t]he phrase conjunctive to 'good conduct' in P.O.—'be of good citizenship'—lacks the reasonable certainty of 'obey all laws' and makes P.O. distinguishable." (Rhineheart, supra, 20 Cal.App.5th at p. 1129.) That is not the case here, as Rhineheart explains. "In context, the phrase '[b]e of good conduct' must be interpreted with its conjunctive phrase 'and obey all laws.' Applying context and common sense, the good behavior condition simply requires Rhineheart be a law-abiding citizen." (Ibid.) Accordingly, "[n]o modification is necessary." (Ibid.)
DISPOSITION
The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.