Opinion
A154782
09-30-2019
THE PEOPLE, Plaintiff and Respondent, v. DANIEL SERRANO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. Nos. FCR326283, FCR330812)
Defendant Daniel Serrano was charged with one count of assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)) and one count of corporal injury to a spouse/cohabitant. (§ 273.5, subd. (a)). He entered a plea of no contest to the charge of corporal injury to a spouse/cohabitant. The trial court suspended imposition of sentence and imposed formal probation with the condition that he not use recreational marijuana or obtain a medical marijuana card without the court's permission. He belatedly challenges this probation condition by appealing from an order denying his request to modify probation to be permitted to use medical marijuana. We dismiss his appeal as untimely.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2017, the People filed an information against defendant alleging felony counts of assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)) (count 1), and corporal injury to a spouse/cohabitant (§ 273.5, subd. (a) (count 2).) Defendant entered a plea of no contest to count 2 and the assault charge was dismissed. He also pleaded no contest to a pending misdemeanor count of disobeying a protective order (§ 273.6).
At the time he entered his plea, defendant owned a medical marijuana card and had regularly used marijuana for many years. Defendant was aware that his marijuana use could be an issue for the court, as his attorney stated: "He would also ask if the court would reconsider allowing him to maintain his medical marijuana card that he previously had." At sentencing, the trial court suspended imposition of sentence and placed defendant on three years of formal probation subject to various terms and conditions. The trial court rejected defendant's request to continue using medical marijuana. The court explained: "He is not to smoke recreational marijuana, and I am going to direct at this time that he not obtain a medical marijuana card without the prior approval of the Court. The problem here as probation indicated is this gentleman has been smoking marijuana since he was in the fourth grade. All of these offenses and the violence involved—I mean, his own mother has a restraining order against him because his behavior is so outrageous, and smoking marijuana does not—I just don't believe it's going to be conducive to his being able to successfully complete probation. He's been abusing drugs his whole life, and this is where he finds himself. We all want to see him succeed, if it's possible. So I think it's in his best interest that he refrain from using marijuana at this time." Defendant did not take an appeal from this sentencing order.
One year later, defendant's probation term was extended to July 2021 after he admitted to violating a condition that he maintain contact with probation. He moved to modify the July 2017 probation order to allow him to use medical marijuana, asserting there was no reasonable relationship between the ban on his use of medical marijuana and future criminality. The court denied the motion, finding that defendant had a history of abusing marijuana since the fourth grade, defendant tested positive for marijuana after placement on probation, and many of his issues have been tied to ongoing substance abuse. This appeal followed.
DISCUSSION
The right to appeal is wholly statutory. (People v. Mazurette (2001) 24 Cal.4th 789, 792.) Section 1237 provides, in pertinent part: "An appeal may be taken by the defendant from both of the following: [¶] (a) Except as provided in Sections 1237.1, 1237.2, and 1237.5, from a final judgment of conviction. A sentence, [or] an order granting probation . . . shall be deemed to be a final judgment within the meaning of this section. . . . [¶] (b) From any order made after judgment, affecting the substantial rights of the party." If a defendant objects to a probationary condition, he or she must file an appeal within 60 days of sentencing. (Cal. Rules of Court, rule 8.308.) That is because "[a]n order granting probation . . . is an appealable order." (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.) "In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment. [Citations.] Thus, a defendant who elects not to appeal an order granting or modifying probation cannot raise claims of error with respect to the grant or modification of probation in a later appeal from a judgment following revocation of probation." (Ibid.)
In People v. Djekich (1991) 229 Cal.App.3d 1213 (Djekich), the court concluded that the denial of a motion to modify conditions of probation was not an appealable order. The court explained: "Because the order granting probation was appealable, [the defendant'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." (Id. at p. 1219.)
The same reasoning applies here. Defendant was plainly aware he would no longer be permitted to use recreational or medical marijuana as a condition of his probation. He accepted those terms and did not appeal from his sentence. Those conditions became final and binding upon him, and he may not later attack the propriety of the trial court's sentencing order through an appeal from an order denying modification. To do so would circumvent the jurisdictional limits on appeal from a final judgment of conviction. This rule is analogous to the restrictions imposed on motions to vacate criminal convictions. People v. Totari (2002) 28 Cal.4th 876, 882, explained: "Although section 1237, subdivision (b), literally permits an appeal from any postjudgment order that affects the 'substantial rights' of the defendant, the right to appeal is limited by the qualification that, ordinarily, no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground which could have been reviewed on appeal from the judgment. [Citation.] 'In such a situation appeal from the judgment is an adequate remedy; allowance of an appeal from the order denying the motion to vacate would virtually give defendant two appeals from the same ruling and, since there is no time limit[] within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment.' "
We also decline to consider his appeal as a petition for writ of mandate or habeas corpus. Reviewing courts generally may not reach issues raised by way of habeas corpus where the defendant has forfeited the challenge by failing to raise it upon a timely appeal. (In re Dixon (1953) 41 Cal.2d 756, 759; but see Djekich, supra, 229 Cal.App.3d at p. 1219.) It should be noted that the trial court below agreed it would reconsider the ban on defendant's use of medical marijuana in six months, provided he is able to adhere to the terms of his probation in the interim. Defendant thus has an adequate legal remedy at his disposal.
DISPOSITION
The appeal is dismissed.
/s/_________
SANCHEZ, J. WE CONCUR: /s/_________
HUMES, P. J. /s/_________
BANKE, J.