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People v. Valdez

California Court of Appeals, First District, Second Division
Feb 1, 2011
No. A129421 (Cal. Ct. App. Feb. 1, 2011)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. ANTONIO MARIANO VALDEZ, Defendant and Appellant. A129421 California Court of Appeal, First District, Second Division February 1, 2011

NOT TO BE PUBLISHED

Solano County Super. Ct. Nos. 249410 & 240897.

Kline, P.J.

Appellant Antonio Mariano Valdez appeals from a judgment of conviction of possession of a deadly weapon in Solano County Superior Court case No. 240897 upon revocation of the probation granted him in that case, after a contested revocation hearing in Solano County Superior Court case No. 249410, in which he was convicted of unlawful sexual intercourse. His court-appointed attorney has filed a brief raising no legal issues and requesting that this court conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.

FACTS AND PROCEEDINGS BELOW

On March 21, 2007, the Solano County District Attorney filed a complaint in case No. 240897, charging appellant and codefendant Sergio Fabian Robledo each with one count of possession of a billy club, a deadly weapon (Pen. Code, § 12020, subd. (a)(1))with a gang enhancement allegation (§ 186.22, subd. (b)), and one count of criminal street gang crime (§ 186.22, subd. (d)).

All statutory references are to the Penal Code, unless otherwise indicated.

On October 1, 2007, appellant executed a written plea waiver and entered a no contest plea to possession of a billy club (§ 12020, subd. (a)(1)). Both sides stipulated that there was a factual basis for the plea. Accepting the plea, the court granted the district attorney’s motion to dismiss the remaining count and strike the enhancement. Accepting defense counsel’s request to sentence appellant immediately by imposing the terms agreed upon by the district attorney, and without waiting for a probation report, the court suspended imposition of sentence and placed appellant on probation for three years with credit for time served and imposed various fees and conditions, including the condition that he not be present at any known gang gathering area of any gang, not associate with any gang members or associates, and not wear or use any gang clothing, paraphernalia, or tattoos, and no contact with Sergio Robledo.

On November 7, 2007, the district attorney filed a complaint in case No. 249410, charging appellant with two counts of forcible rape (§ 261, subd. (a)(2)), one count of forcible oral copulation (§ 288a, subd. (c)(2)), and one count of unlawful sexual intercourse (§ 261.5, subd. (c)). The facts of this case are that in October 2007, a 14-year-old girl reported to police that appellant forced her to have intercourse with him twice. Appellant was arrested on these charges on November 5, 2007.

After a preliminary hearing on August 12, 2008, appellant was held to answer on all four counts. An information charging those offenses was filed by the district attorney on August 14, 2008.

Three months later, at a hearing held on November 17, appellant executed a written plea waiver and entered a no contest plea to the charge of unlawful sexual intercourse. The court accepted the plea, granted the district attorney's motion to dismiss the remaining charges with a Harvey waiver, and found appellant to be in violation of probation in case No. 240897.

On March 10, 2009, a contested revocation hearing was held in case No. 240897 in connection with an incident on November 25, 2008, at an apartment building at 440 Acacia Street in the City of Vacaville.

Vacaville Police Officer Michael Strachan was called to 440 Acacia, at which a party was being held at the apartment of Somer Ramirez. When he arrived, at about 10:34 p.m., he saw four individuals leaving the building, one of whom was appellant. He asked appellant whether he was on probation or parole, and appellant stated that he had just been released and was waiting to be sentenced. Officer Strachan asked appellant to place his hands behind his back and subjected him to a pat search. When appellant kept turning away, Strachan handcuffed him. During this time, Strachan detected an odor of marijuana emitting from appellant. A search of the area at the base of the stairs where appellant and the others had been standing turned up a baggie of marijuana. When asked what he was doing at the apartment house, appellant stated that he “was just walking through” and had been “dropped off there” by a “friend” whose name he could not remember.

Vacaville Police Officer Eric Watts, who was also at the scene and saw appellant there, testified that Danny San Nicholas, Daniel Macias, Miguel Lemelle, Daniel Rios and Christopher Hopkins were also then present at the premises on 440 Acacia Street.

Detective Adam Senf, who was also among the officers called to the scene due to a “noise complaint, ” stated that he recognized appellant, knew he had been released pending a sentencing hearing, and had a conversation with him after he advised him of his Miranda rights. After denying it at first, appellant admitted he had been restricted by the court from associating with gang members. Appellant stated “that he just had been dropped off to go to a small party” that a female there was having to celebrate just moving in.

Miranda v. Arizona (1966) 384 U.S. 436.

Appellant told Detective Adam Senf that “he didn’t know anybody at the party.” After checking police information and talking to other officers, Senf determined that appellant had prior contact with two of the persons he was seen with at the scene: Miguel Lemelle and Daniel Rios. Senf also knew Rios and appellant were first cousins. Danny San Nicholas was also a “Northern structure prison gang member” associated with the Norteno gang, and easily identifiable as such by his tattoos and the paraphernalia he wore.

At that point in the hearing, defense counsel offered to stipulate that persons seen at or leaving the party at 440 Acacia Street were “gang members, ” and that the tattoos that San Nicholas and others there were seen wearing “notifies everyone in the community that this knuckle head is a member of the gang.”

Deborah Arteche, appellant’s mother, who is also related to Daniel Rios, testified that she went shopping with appellant the evening he was arrested and on the way home the two went by Somer Ramirez’s home on Acacia Street and saw “a guy and a girl” they did not know on the balcony of her apartment. Appellant wanted to stay there, but she wanted him to come home to help her unpack the groceries they had bought. She did not see Daniel Rios on the balcony or elsewhere on the premises. She and appellant went home and unpacked. Appellant then left to return to Ramirez’s home, telling her he would be back in about an hour. The next thing she heard was that he had been arrested. Arteche said Rios had come by her home at about 9:30 p.m., and her son left at about 10:00 p.m., but when asked, “do you know that your son left with [Rios] at about 9:30?” Arteche said “no.”

At the close of the hearing, the district attorney argued that the evidence showed appellant had associated with gang members in violation of the conditions of his probation, emphasizing the very visible tattoos some wore and that Daniel Rios was his cousin and “a known Norteno associate.” Defense counsel countered that Vacaville is a small town and that, as soon as known gang members showed up at Ramirez’s party, appellant left. With respect to Rios, counsel argued that “if the Court finds a technical violation, I don’t think that this type of activity [is one] this young man should be punished for. I mean, there is no way you can forbid somebody from associating with his own relatives.” Counsel also emphasized that appellant admitted to the police officers that he was aware of the restriction against associating with gang members and associates, and explained that that was why he was leaving the party. According to counsel, “if anything exists it’s a technical violation. And I don’t even believe that exists. Because [the violation] has to be willful.... And I don’t think they have shown willful conduct.”

In sustaining the probation violation, the trial court noted that the probation reports in case No. 249410-which initially recommended (1) that appellant be remanded to custody pending sentencing in that case, and (2) that at sentencing appellant be sentenced to state prison-“was not supportive of the original plea agreement reached by the parties” and by the court.

The court indicated its feeling that appellant’s failure to abide by the restriction against associating with gang members “was in fact a technical violation, ” but he wanted to put the matter over for four weeks to consider “the bigger issue, ” which was whether appellant’s probation in case No. 249410 should be revoked because of the charges in case No. 240897.

At a hearing on April 6, 2009, the court suspended imposition of sentence in case No. 249410, placed appellant on probation for three years, and reinstated his probation in case No. 240897. Appellant waived custody credits in both cases.

On June 29, 2010, a contested probation revocation hearing was held with regard to an incident on April 13, 2010. Deputy probation officer Joshua Blair testified that, prior to March 10, 2010, he had reminded appellant of his prior probation violation for using marijuana, and warned him that if he continued to use marijuana he would “take him back to court on a probation violation.” On March 10th, he had appellant tested and the test was positive for marijuana. On March 29th, Blair met with appellant at his home to discuss his marijuana use. When appellant told him he had used marijuana after March 10th, Blair directed that he take another test. Appellant took a test on April 5th and the results “came back presumptive for THC in his system.” Blair acknowledged on cross-examination that appellant provided him a medical marijuana recommendation, apparently from a physician, which appellant said he needed to treat his attention deficit disorder, insomnia and anxiety. Blair did not contact the doctor who made the medical recommendation to ascertain its validity. Blair sought a probation violation despite the fact that appellant had what appeared to be a valid medical marijuana recommendation from a physician. Blair believed a physician’s recommendation was “different than an actual card issued by the Health Department or [a] Cannibis Buyers [sic] card.”

California Highway Patrol Officer Monique Wycoff testified that, on April 13, 2010, she stopped a Cadillac she saw weaving from lane to lane and carrying a rear license plate with a missing current registration tag. She noticed that appellant, the sole occupant of the car, had red and watery eyes and a green coating on his tongue, both of which were indicative of marijuana use. Appellant admitted he had smoked marijuana earlier and that it was currently making him feel very tired. The officer saw a clear plastic bag containing marijuana in the car. After having appellant perform five field sobriety tests, Officer Wycoff concluded that appellant was then under the influence of marijuana.

Taking the stand, appellant testified that he showed Officer Wycoff his medical marijuana recommendation. He denied he told her he was then feeling the effects of marijuana, but told her he was tired because he had gotten only an hour of sleep. Appellant was having trouble navigating the Cadillac, he said, because it had an “alignment problem.” He also stated that he had eaten green candy that night. When Officer Wycoff asked him if he possessed anything she should know about, appellant showed her his bag of marijuana and his marijuana recommendation card. Though he lost his balance “a little bit” at one point, appellant felt he performed the field sobriety test “okay overall.”

On July 30, 2010, the matter came on for a supplemental report from the probation department and sentencing. Initially observing that he had probably given appellant “more chances than I should have” because “you seem very sincere in your desire to succeed” and “are very young.” and acknowledging that the probation department lacked the resources it used to have and “it would have been better if you had more support on the outside as well, ” the court concluded appellant was no longer suitable for probation due to his “continuing criminality.” The court also pointed out that, given the large amount of credits appellant had waived, it would be unfair to impose the two-year eight-month sentence recommended by the probation department.

In case No. 249410, the court sentenced appellant to state prison for the midterm of two years. The court also imposed the two-year midterm in case No. 240897, concurrent with the term imposed in the other case. Although the court did not restore the credits appellant was originally awarded, which appellant waived in 2008, it awarded 237 days for time actually served and 328 days for work performance and good behavior pursuant to section 4019, for total credits of 473 days. The court imposed fines of $200 under sections 1201.4 and 1202.45, the latter fine imposed only if parole was revoked.

Appellant filed a timely notice of appeal on August 11, 2010.

DISCUSSION

The scope of reviewable issues on appeal after a guilty plea, such as that in case No. 249410, is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea; guilt or innocence are not included. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)

Appellant’s change of plea complied with Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. He was at all times represented by competent counsel who guarded his rights and interests, and the sentence imposed is authorized by law.

Our independent review having found no arguable issues in case No. 249410 that require further briefing, the judgment of conviction in that case is affirmed.

With respect to case No. 240897, we note that the district attorney urged the court to revoke appellant’s probation in that case on the ground that appellant “does not have a valid marijuana card. He has a recommendation. He does not have a prescription.” The district attorney also pointed out that “even if [appellant] did have a valid marijuana card, he’s in direct violation of a Court order. As we know people are allowed to use alcohol, however, if the Court orders someone is not allowed to use alcohol, they cannot without modification of probation.”

The district attorney’s claims that in order to validly use medical marijuana a person must have “a valid marijuana card” or a “prescription, ” rather than a mere “recommendation” are certainly questionable. The Compassionate Use Act (Health & Saf. Code, § 11362.5) (CUA), which was enacted by the people as an initiative and therefore cannot be restricted by the Legislature, does not require either “a valid marijuana card” or a “prescription, ” but merely “the written or oral recommendation or approval of a physician.” (Health & Saf. Code, § 11362.5, subd. (d).) The “identification card” described by the Legislature in the Medical Marijuana Program Act (Health & Saf. Code, § 11362.7 et seq.) is part of a “voluntary program” (id., § 11362.71, italics added). Appellant did not need such a card in order to permissibly use medical marijuana under the CUA; all he needed was the “recommendation or approval” of a physician, which he apparently possessed. (County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 810.)

The district attorney’s assumption of the validity of the restriction on marijuana use set forth in the probation order, which she compared to a restriction on the use of alcohol, is also questionable. As has been said, the Supreme Court’s opinion in People v. Mower (2002) 28 Cal.4th 457 “accurately describes the effect of the [CUA] as creating a form of qualified immunity for the possession of marijuana in compliance with its terms. This immunity from criminal sanction takes the possession of marijuana and puts it in a special category apart from other legal acts, such as the use of alcohol, that can properly be made a condition of probation.” (People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1447 (conc.opn. of Morrison, J.)

However, although the arguments advanced by the district attorney in support of revocation are certainly “arguable” within the meaning of People v. Wende, supra, 25 Cal.3d 436, the trial court did not attach to appellant’s admitted use of medical marijuana the significance attached to it by the district attorney. As we have said, the court revoked appellant’s probation because of his “continuing criminality.” None of the offenses appellant was charged with in the cases before us is a marijuana offense. The “criminality” referred to by the court cannot be deemed to include appellant’s use of marijuana. Clearly, the revocation of probation on that basis was not even arguably an abuse of discretion.

The ruling revoking appellant’s probation in case No. 240897 is affirmed.

We concur: Haerle, J., Lambden, J.


Summaries of

People v. Valdez

California Court of Appeals, First District, Second Division
Feb 1, 2011
No. A129421 (Cal. Ct. App. Feb. 1, 2011)
Case details for

People v. Valdez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTONIO MARIANO VALDEZ, Defendant…

Court:California Court of Appeals, First District, Second Division

Date published: Feb 1, 2011

Citations

No. A129421 (Cal. Ct. App. Feb. 1, 2011)