Opinion
A148235
03-02-2017
THE PEOPLE, Plaintiff and Respondent, v. AARON WHITE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. FCR309703)
On February 24, 2014, appellant Aaron White was charged by the Napa County District Attorney with second degree robbery (Pen. Code, § 211) (count 1), assault by force likely to cause great bodily injury (§ 245, subd. (a)(4)) (count 2), and grand theft from a person (§ 487, subd. (c)) (count 3). Appellant pled no contest to the second and third counts and the first was dismissed.
All statutory references are to the Penal Code.
At the sentencing hearing on April 28, 2014, imposition of appellant's sentence was suspended and he was granted three years of formal probation with various conditions, including serving 360 days in county jail, to "not use, consume or possess any nonprescribed or illegal substances, including medical marijuana, unless specifically authorized by the court."
On August 7, 2014, the case was transferred from Napa County to Solano County. About a month later, appellant's felony grand theft conviction was reduced to a misdemeanor pursuant to section 1170.18, subdivision (a).
On April 25, 2016, after a third petition to revoke probation had been filed, the Solano County Superior Court revoked appellant's probation, reinstated probation with modification, and denied his motion to be permitted to use medical marijuana without prejudice.
Three days later, appellant filed a timely notice of appeal. An order modifying the terms of probation is appealable. (§ 1237, subd. (b); People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.)
Appellant's court-appointed counsel has filed a brief raising no legal issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
FACTS AND PROCEEDINGS BELOW
The basic facts of the underlying offense, which we take from the preliminary hearing conducted on February 5, 2014, are as follows: On the evening of October 12, 2013, Joshua Corpus was at the intersection of American Canyon and James roads using his iPhone as a flashlight to look for his lost wallet when he was suddenly assaulted by two men who jumped from a Ford Mustang, knocked him down, and kicked him while throwing his iPhone to the side. After one of the men retrieved the phone, they drove off in the Mustang.
Corpus immediately called the police, who brought him to a Safeway parking lot where the Mustang was found. Officer Schneider, one of the two officers who had been dispatched to the scene, confirmed that the Mustang was registered to appellant. The other officer, Officer Hernandez, told Schneider that the Mustang had recently been involved in a similar theft of an iPhone.
On August 7, 2015, the chief probation officer filed the first of three petitions to revoke appellant's probation, which alleged three violations of probation: failure to report to his probation officer as directed, failure to consistently test weekly for controlled substances, and failure to abstain from the use of such substances. The probation officer opined that appellant frequently failed to report for drug tests "so that his ongoing drug use will remain undetected." The probation officer's report also related that appellant "submitted to drug tests on 5-13-15 and 7-8-15, which returned positive for marijuana," but he "denied the use of marijuana," when confronted with these test results. The report recommended that probation be revoked and appellant be ordered to serve 90 days in jail "as a limit-setting consequence for the probation violations." Appellant admitted he committed the alleged violations and, in exchange, his probation was revoked, modified, and reinstated on the additional requirement that he serve 90 days in county jail, which was stayed.
On January 8, 2016, the probation officer filed a second petition to revoke probation, which alleged new violations of the same three conditions previously violated, along with failure to provide proof he had attended scheduled hearings of Alcoholics Anonymous (AA) or Narcotics Anonymous (NA). Five drug tests appellant took between September and December 2015, returned positive for marijuana. At the hearing on the petition, appellant submitted his marijuana card to the court along with evidence he was employed, was attending meetings of the Kaiser Dependency Recovery Program (KDRP), and had returned to school. The trial court continued the hearing on the petition in order to permit appellant to complete the Kaiser recovery program and maintain his employment. The court also ordered appellant to abstain from marijuana use because it had not authorized marijuana use.
When the hearing resumed on January 25, 2016, the district attorney dismissed the petition to revoke pursuant to an agreement requiring appellant to serve the previously stayed 90 days in county jail and comply with other conditions of probation that had been modified. With those changes, the court reinstated probation, directed that the county jail time that had previously been stayed commence on March 25, 2016, and required appellant to submit to weekly drug testing.
On April 6, 2016, appellant filed a motion for permission to use medical marijuana while he was on probation.
While he was serving the prescribed 90 days in jail, a third petition to revoke probation was filed alleging that appellant failed to abstain from marijuana, failed to submit to weekly drug tests, and failed to attend either AA or NA drug programs.
The petition to revoke probation and appellant's motion for permission to use medical marijuana were jointly heard on April 25, 2016.
The Revocation and Reinstatement of Probation
The sole witness at the 2016 hearing was appellant's probation officer, Solano County Deputy Probation Officer Linda Perez. In the report she filed with the court on the day of the hearing, Perez stated that appellant "continues to be in non-compliance with terms of his probation and it is being noted that he continues to be in violation of his probation for the same behavior in each of the three 'Violation Reports' previously submitted to the court. It appears that he does not take his probation orders seriously since he continues to use marijuana, miss drug tests, not provide proof of his AA/NA attendance and not provide pay stubs. All of this despite the threat of serious consequences." Notwithstanding appellant's repeated violations, Perez, who had been a probation officer for 29 years, recommended that probation be reinstated, "as the Probation Department is willing to continue to work with the offender to assist him in making positive lifestyle changes."
The probation department's willingness to work with appellant despite his dismal performance on probation may well be related to the fact that, as stated by defense counsel, appellant is "a new parent. He just had a baby and had to turn himself in right after his baby was born." Counsel emphasized that appellant's family, who were present in the courtroom, were "incredibly supportive," and appellant and his parents "desperately would like to get back to his baby that was just born."
Asked by the court to state the People's position, the district attorney stated "I will submit on Perez's recommendation." Defense counsel asked the court to consider less time than the 90 days that had earlier been imposed or letting appellant serve the remaining time at home on an ankle monitor. Counsel emphasized that appellant "is eager to get back to his baby. He wants to comply with probation Your Honor." "White hasn't been in custody in a really long time and this has, I think, had a profound impact on him and a profound impact on his family. . . . [¶] . . . And even though he's been trying to work, to go to school, to do parenting, to do counseling, it's hard to do that when you have no money. It's hard to do that when you have no transportation and you're relying on parents and public transportation."
After noting the abundant evidence appellant violated conditions of his probation—by (1) "failing to file proof of NA or AA meetings as requested and directed by his probation officer," (2) "failing to drug test," and (3) failing to provide his probation officer proof of his employment, such as pay stubs, as she had requested—the court reinstated appellant on probation. The court imposed the same terms and conditions, except as follows: "I'll order that he serve an additional 90 days in jail, consecutive to the 90 days he's currently serving. And I'll find that as of today's date, against that total sentence of 180 days, he has actual custody credits of 32 days, [section] 4019 credits of 32 days, for total credits of 64 days."
Denial of Appellant's Motion for Permission to Use Medical Marijuana
On the motion for permission to use medical marijuana, defense counsel emphasized that appellant had a valid medical marijuana card and marijuana eased the chronic pain he suffered as a result of an automobile accident in which he fractured his shoulder and lower back. Counsel emphasized that appellant's use of medical marijuana was medically supervised and deemed efficacious by his physician and constituted "completely legal conduct." The district attorney argued against use of medical marijuana because appellant had a history of violence and its use would not help him succeed on probation. The prosecutor also pointed out that appellant had originally been assessed by the probation department as having a high risk of re-offending, and more recently re-assessed as "a very-high-risk" to reoffend. The probation report indicated that the elevated risk was related to appellant's substance abuse.
The trial court denied appellant's request for permission to use medical marijuana on three grounds: that "his marijuana use had some relationship to the crime of which he stands convicted," that probation reports indicate "his use of marijuana is actually interfering with his successful pursuit of probation [and] his effort to rehabilitate himself," and finally because the accident in which he fractured his shoulder and lower back predated his original grant of probation which was granted in part because he told the Napa probation officer "that he hadn't smoked [marijuana] in like a year-and-a-half, so how critical could his use of marijuana be to his medical condition if he was being truthful?" Finally, the court observed that "somebody who is under the influence sometimes has a difficult time separating truth from falsity, reality from fiction, and if he doesn't learn how to do both of those things, he's not going to be able to complete probation successfully from this point forward."
DISCUSSION
The scope of reviewable issues on appeal after a plea of no contest 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 plea in the Napa County Superior Court satisfied the requirements of Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122, because it was received after appellant received the admonitions mandated by those opinions from the court and appellant signed a written plea form waiving the rights to which those admonitions refer.
The conditions of probation imposed by the court, including denial of the right to use medical marijuana while on probation, are not arguably erroneous in any respect. The trial court has broad discretion to impose conditions provided only that they serve a statutory purpose. (People v. Richards (1976) 17 Cal.3d 614, 619, disapproved on another ground in People v. Carbajal (1995) 10 Cal.4th 1114, 1126.) If a probation condition serves the statutory purpose of rehabilitation it necessarily has a reasonable relationship to future criminality and may not be held invalid. (People v. Balestra (1999) 76 Cal.App.4th 57, 65.) Requiring the defendant to abstain from the use of medical marijuana is justified where his credibility creates doubt regarding the defendant's need for marijuana (see, e.g., People v. Moret (2009) 180 Cal.App.4th 839, 848), even where a physician had recommended its use. (People v. Bianco (2001) 93 Cal.App.4th 748, 751; see also People v. Leal (2012) 210 Cal.App.4th 829.)
Appellant was represented by competent counsel who guarded his rights and interests.
Our independent review having found no arguable issues that require further briefing, the revocation and reinstatement of appellant's probation, and the conditions imposed thereon, are affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.