Opinion
NOT TO BE PUBLISHED
Petition for a writ of habeas corpus after a judgment of the Superior Court of San Diego County No. SCD207333, Louis R. Hanoian, Allan J. Preckel, and David M. Szumowski, Judges.
O'ROURKE, J.
Defendant Richard Nespor pleaded guilty to a single count of possessing marijuana for sale (Health & Saf. Code, § 11359; case No. SCD207333) and thereafter unsuccessfully sought to modify his probation conditions to permit marijuana use. Nespor's probation in that case was revoked at a combined preliminary hearing/probation revocation hearing after he was found in possession of additional marijuana plants. He eventually entered a guilty plea to possession under section 11357, subdivision (c). In this petition for writ of habeas corpus, Nespor contends his defense counsel provided ineffective assistance following his initial guilty plea and during the probation revocation proceedings by failing to (1) appeal from an order denying his request under section 11362.795 to modify his probation conditions to allow for marijuana ingestion; (2) affirmatively present evidence at the probation revocation hearing of his legal right to cultivate the marijuana plants so as to make out a defense under the Compassionate Use Act of 1996 (CUA); or (3) move to continue the probation revocation hearing to present evidence of the legality of his marijuana possession.
All statutory references are to the Health & Safety Code unless otherwise indicated.
We conclude Nespor has shown prejudicially ineffective assistance of defense counsel who handled his combined preliminary hearing/probation revocation hearing. We accordingly grant the requested relief.
FACTUAL AND PROCEDURAL BACKGROUND
Nespor filed a direct appeal raising the same ineffective assistance claims. We have dismissed that appeal for Nespor's failure to obtain a certificate of probable cause. We take judicial notice of the record in the direct appeal (Evid. Code, §§ 452, subd. (d), 459, subd. (a)) and largely repeat the factual background from that appeal.
In November 2007, pursuant to a negotiated plea agreement, Nespor pleaded guilty to possessing marijuana for sale. On December 7, 2007, the court entered an order placing him on three years probation on specified terms and conditions, including that he "[n]ot use or possess any controlled substance without a valid prescription...."
In March 2008, Nespor moved under section 11362.795, subdivision (a)(1) to change conditions of his probation in part to confirm his ability to lawfully ingest marijuana for medicinal purposes. He asserted he had a valid recommendation to ingest marijuana because he suffered from migraines, a hernia and post traumatic stress disorder, and presented a copy of his physician's recommendation. In April 2008, the trial court, the Hon. David Szumowski, denied Nespor's request. The court explained: "I think the law is clear that while someone is on probation I have the discretion to agree to this or not to agree with it. Your client has pled guilty to dealing, and that weighs heavily with me. [¶] I also think you are kind of jumping the gun here. I'm not saying that he can or cannot use marijuana. I think the issue for you is whether he uses it and then probation chooses to bust him on a revocation for using it or the DA chooses to charge him on a new charge for using marijuana. [¶] So I'm not going to sit here and write an order confirming his ability to use marijuana. He can follow the law as you advise him as his right. I don't have any problem with him using Marinol, but I'm not going to sit here and confirm an order for you that says he can use marijuana. So I think you're premature on whether or not his use of it is even going to be a problem. So for that reason, I'm going to deny it."
Section 11362.795 provides in part: "(a)(1) Any criminal defendant who is eligible to use marijuana pursuant to section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation or released on bail. [¶] (2) The court's decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court. [¶] (3) During the period of probation..., if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation... to authorize the use of medical marijuana." This section is not part of the CUA, but rather part of the Medial Marijuana Program enacted by the Legislature. (People v. Brooks (2010) 182 Cal.App.4th 1348, 1352, citing section 11362.7 et seq.)
On May 21, 2008, officers found 28 marijuana plants growing at Nespor's house. Thereafter, Nespor turned himself in and in July 2008, his probation was summarily revoked and the matter set for a combined preliminary hearing and probation revocation hearing.
In August 2008, Nespor was bound over for a charge of cultivating marijuana (case No. SCE281024). At the hearing on that matter, Nespor testified he had a medical marijuana recommendation from a physician issued on December 4, 2007, which did not expire until December 4, 2008. The court, the Hon. Allan J. Preckel, tentatively ruled that Nespor would be discharged under case authority that had been decided the prior week, but changed its tentative ruling after the People argued Nespor had not met his burden of showing medicinal use by presenting expert testimony as to the nature of his medical needs and whether the amount possessed was reasonably related to his medical needs. The court formally revoked Nespor's probation, finding based on the evidence that he had violated his probation in case No. SCD207333. Nespor asked that the court enter a plea of not guilty on his behalf and deny all allegations.
People v. Phomphakdy (2008) 165 Cal.App.4th 857, review granted October 28, 2008, S166565, review dismissed and cause remanded March 10, 2010. The California Supreme Court dismissed review in that case after issuing its decision in People v. Kelly (2010) 47 Cal.4th 1008.
In April 2009, Nespor initialed a change of plea form in case No. SCE281024 in which he pleaded guilty to possession of more than 28.5 grams of marijuana in violation of section 11357, subdivision (c). At the hearing on Nespor's change of plea, the trial court, the Hon. Louis Hanoian, took Nespor's waivers and confirmed on the record that he freely and voluntarily pleaded guilty to that charge. Judge Hanoian reiterated that Nespor's probation in case No. SCD207333 was revoked on the additional basis of his change of plea. Nespor's counsel then proceeded to move for an order granting Nespor limited immunity as to the possession charge and probation violation, on grounds the underlying conduct - possession of 12 mature plants and 16 immature trees - was not illegal because it was reasonably related to Nespor's current medical needs. He asked the court to dismiss the information and set aside its finding as to a probation violation. Pointing out Nespor had just admitted guilt and to the illegality of that charge and that the claim was an affirmative defense that could not be brought in connection with Nespor's sentencing on his probation revocation, the court ordered Nespor back on probation under the previous terms and conditions with two modifications: that he was not to use or possess marijuana during the period of his probation, and that he serve 180 days in custody of the sheriff. The court stayed imposition of custody pending appeal.
Nespor filed a petition for writ of habeas corpus on grounds of his counsel's ineffective assistance, attaching declarations from his counsel who appeared at the probation modification hearing before Judge Szumowski (Alexis Bastedo), and counsel who represented him at both the combined preliminary hearing/probation revocation hearing before Judge Preckel and the sentencing hearing before Judge Hanoian (Gerald Singleton). Attorney Bastedo avers she could have arranged for a medical doctor's testimony at the hearing, obtained a declaration as to Nespor's medical needs including the amounts of marijuana needed for his medical conditions, and/or presented Nespor's medical records, but did not take any of those steps. She states she did not take steps to appeal Judge Szumowski's decision to deny confirmation of Nespor's marijuana use, and had no reasonable tactical basis for her inactions.
Singleton states that he realized at the time of Nespor's preliminary hearing that he needed to put on evidence of Nespor's medical needs in order to justify the amount of marijuana needed by his client. Counsel avers he should have opposed making the preliminary hearing double as a probation revocation hearing and should have sought a continuance of the probation revocation hearing in order to obtain medical testimony about Nespor's need to possess and cultivate sufficient marijuana for his medical needs, which would have prevented Nespor's probation from being revoked. Pointing to Nespor's valid marijuana card, Singleton states "if [Nespor's] doctor had testified, which he could have, ... there would have been no bindover and no revocation of probation." He states that following Judge Preckel's bindover, he obtained the opinion of a medical marijuana expert, Chris Conrad, who provided a declaration stating that the amount of marijuana in Nespor's possession was reasonably related to his personal medical needs at the time of his arrest, but Judge Hanoian refused to consider the evidence on Nespor's motion to dismiss. Singleton avers he should have presented Conrad's declaration at the preliminary hearing and/or requested a continuance on the revocation hearing so he could have presented that evidence on the issue of Nespor's probation revocation. He states he had no tactical reason for either failing to put on this expert testimony at the time of the preliminary hearing or continuing the revocation hearing until he had Conrad's testimony.
In their informal response, the People argue attorney Bastedo was not constitutionally incompetent by failing to appeal from the order denying modification of probation because Judge Szumowski's order was not appealable. They further argue attorney Singleton made a tactical decision at the preliminary hearing to argue and present evidence based on his understanding of the law at the time. They maintain counsel's alleged error was not prejudicial in any event because "even if [Nespor] had not been held to answer for unlawfully cultivating marijuana, his admitted possession of the marijuana for his personal use constituted a violation of his probation conditions." The People ask us to view defense counsels' admissions with "skepticism" because such admissions are not decisive. The People argue Singleton's understanding of the law at the time of the preliminary hearing was reasonable, and the record shows he interpreted the CUA as prohibiting anyone with a valid physician's recommendation from being charged with cultivating marijuana. They maintain the record reflects counsel "thoroughly investigated the CUA defense" and his assessment of the law was tactical as opposed to an unreasonable failure to investigate.
DISCUSSION
I. Legal Principles for Habeas Corpus Proceedings
A prisoner may, within limits, challenge the legality of custody, including constructive custody, via habeas corpus proceedings. (People v. Villa (2009) 45 Cal.4th 1063, 1069; see Cal. Rules of Court, rule 8.380(a).) At the pleading stage, the petitioner must make " ' "a sufficient prima facie statement of specific facts which, if established, entitle him to... relief...." ' " (In re Large (2007) 41 Cal.4th 538, 549.) Only if the petitioner alleges such prima facie facts will the court issue an order to show cause. (See People v. Superior Court (Pearson)(2010) 48 Cal.4th 564, 574.) "When we issue[ ] an order to show cause..., our order represent[s] a 'preliminary assessment that... petitioner would be entitled to relief if his factual allegations are proved.' " (In re Hardy (2007) 41 Cal.4th 977, 981-982, quoting People v. Duvall (1995) 9 Cal.4th 464, 475.)
After considering the allegations of the petition in light of People's informal response, we determined Nespor had stated a prima facie case for relief and issued an OSC. The People rested on their informal response as the return, and Nespor filed a traverse, which have now framed the issues for our determination. (People v. Romero (1994) 8 Cal.4th 728, 738-740; see also People v. Duvall, supra, 9 Cal.4th at p. 476.)
II. Ineffective Assistance of Counsel - Burden of Proof and Standard of Review
To demonstrate he has received constitutionally ineffective representation by his defense counsel, Nespor bears the burden of proving by a preponderance of the evidence that his attorney's " 'representation fell below an objective standard of reasonableness' 'under prevailing professional norms' [citations] and 'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome' [citation]. 'This second part of the Strickland test "is not solely one of outcome determination. Instead, the question is 'whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.' " ' " (In re Valdez (2010) 49 Cal.4th 715, 729, quoting Strickland v. Washington (1984) 466 U.S. 668, 688, 694; In re Hardy, supra, 41 Cal.4th at pp. 1018-1019.) Prejudice must be affirmatively proved. (People v. Maury (2003) 30 Cal.4th 342, 389; Strickland, at p. 694.) If Nespor makes an insufficient showing on either one of these components, the ineffective assistance claim fails. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
Our review of counsel's performance "must be highly deferential." (In re Valdez, supra, 49 Cal.4th at p. 729.) We indulge a strong presumption that counsel's conduct "falls within the wide range of reasonable professional assistance"; that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions. (Id. at p. 730; People v. Holt (1997) 15 Cal.4th 619, 703.) " ' "[C]ourts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." ' " (People v. Stanley (2006) 39 Cal.4th 913, 954.) Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts. (Ibid.) Yet, " ' " 'deferential scrutiny of counsel's performance is limited in extent and indeed in certain cases may be altogether unjustified. "[D]eference is not abdication" [citation]; it must never be used to insulate counsel's performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions.' " ' " (In re Avena (1996) 12 Cal.4th 694, 722.)
A. Failure to Appeal Trial Court's Denial of Motion to Modify Probation
Nespor contends attorney Bastedo rendered ineffective assistance when she did not file an appeal or take other appellate action to challenge the trial court's order denying his section 11362.795, subdivision (a)(1) motion to confirm his marijuana use while on probation. Nespor maintains his claim has merit because Judge Szumowski's decision lacked any basis to support his denial of modification, was overbroad, and was contrary to the principles expressed in People v. Mower (2002) 28 Cal.4th 457 and People v. Tilehkooh (2003) 113 Cal.App.4th 1433, which, had she filed an appeal, counsel would have cited for the proposition, among others, that medical marijuana should be treated as a prescription drug not subject to criminal prosecution. Nespor argues the resulting prejudice is apparent from his arrest a few weeks later, which would not have occurred had he been granted the modification he sought and would have received but for his counsel's ineffectiveness.
In addition to asserting that the order was not appealable, the People argue the trial court properly denied counsel's request to confirm marijuana use under its discretion to impose probation conditions that prohibit even legal activity. They argue that as a result, Nespor cannot show ineffectiveness or incompetence as counsel is not ineffective for engaging in the futile act of appealing from a nonappealable order, and he has not demonstrated prejudice because even if the order were appealable, there is no reasonable probability he would have obtained a more favorable result absent counsel's error.
We need not decide whether that portion of Judge Szumowski's order denying Nespor's motion was an appealable order, because assuming arguendo it was, Nespor has not shown a reasonable probability of a different outcome even had counsel appealed or otherwise sought appropriate review of the trial court's decision. This is because we agree that even in view of section 11362.795, the trial court retained its broad discretion to impose (or, more accurately here, leave in place) a probation condition requiring Nespor to possess a valid prescription for his marijuana use. As the People point out, the court would have been well within its discretion to prohibit even arguably legal activity, so long as the requirement was reasonably related to Nespor's criminal conviction or future criminality. (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin); see also People v. Brooks, supra, 182 Cal.App.4th at p. 1352; People v. Moret (2009) 180 Cal.App.4th 839, 845-846 [section 11362.795 does not eliminate trial court's discretion to impose a no-marijuana-use probation condition as it permits the court to make a decision whether or not to confirm such use on defendant's request]; People v. Balestra (1999) 76 Cal.App.4th 57, 63.) The trial court's discretion in imposing probation conditions is broad, and should be reversed only where it is "arbitrary or capricious or otherwise exceeds the bounds of reason under the circumstances." (People v. Anderson (2010) 50 Cal.4th 19, 26, 32.)
Orders modifying probation are appealable orders as an "order made after judgment, affecting the substantial rights of the party." (Pen. Code, § 1237, subd. (b); People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.) In People v. Djekich (1991) 229 Cal.App.3d 1213, this court held that a defendant's failure to timely appeal from an order granting probation precluded his attempt to belatedly appeal from an order denying his request to modify his probation conditions by eliminating certain fines. (Id. at pp. 1218-1219.)Citing Djekich, the People argue the trial court's order denying Nespor's motion was not appealable. As stated, because we reject Nespor's ineffective assistance argument as to attorney Bastedo on prejudice grounds, we need not decide whether an order denyinga request to modify probation so as to confirm marijuana use is appealable as an order after judgment under Penal Code section 1237, subdivision (b).
Here, Nespor was originally convicted of illegal possession of marijuana for sale, and in view of that charge, the trial court elected to leave in place a probation condition forbidding his use or possession of a controlled substance without a valid prescription. The trial court was well within its ample discretion to conclude - and we infer it implicitly did conclude - there was both a nexus to Nespor's prior sales conviction and relation to his future criminality, because barring his possession or use in this way would discourage him from the temptation of hiding illegal sales by claiming his cultivation was pursuant to the CUA.
Neither People v. Tilehkooh, supra, 113 Cal.App.4th 1433 nor People v.Mower, supra, 28 Cal.4th 457 would have compelled the trial court to reach a different conclusion. Mower does not consider the application of the CUA, which is codified at section 11362.5, to probation revocation hearings. (See Tilehkooh, at p. 1443.) The Court of Appeal in Tilehkooh held that the use and possession of marijuana can only be made a condition of probation if section 11362.5 does not apply to probation, and that revocation of probation for medicinal use serves no rehabilitative purpose. (Tilehkooh, at pp. 1441, 1443-1444.) Tilehkooh, however, was decided before the Legislature enacted section 11362.795, which became effective January 1, 2004. (Stats. 2003, ch. 875, § 2; People v. Moret, supra, 180 Cal.App.4th at p. 853, fn. 12.) Section 11362.795 recognizes the trial court's discretion in imposing probation conditions by allowing it to make a "decision" as to whether to allow medical use of marijuana during a period of probation. "There would be no reason for the Legislature to speak of the court's 'decision' or to require the court to state reasons for its decision on the record if the court had no discretion to prohibit the use of medical marijuana." (People v. Brooks, supra, 182 Cal.App.4th at p. 1352; accord, People v. Moret, at p. 854, fn. 13.)
We cannot agree that the probation condition here so lacked any legitimate penal function as to render it invalid for purposes of assessing the probability that Nespor would have obtained a more favorable outcome on an appeal, had his counsel brought one. Because Nespor has not shown prejudice, his ineffective assistance claim as to attorney Bastedo is unavailing.
B. Nespor's Defense Counsel at his Preliminary Hearing/Probation Revocation Hearing Was Prejudicially Ineffective by Failing to Present Medical Expert Testimony of the Legality of Nespor's Conduct
Nespor contends his counsel was prejudicially ineffective when he did not present evidence of the legality of his conduct at the August 2008 probation revocation hearing before Judge Preckel or move to continue the hearing to present such evidence. Nespor points to his counsel's own admissions in an accompanying declaration that it was clear at the sentencing hearing that he should have presented expert medical testimony earlier and he had no tactical reasons for not presenting such testimony beforehand.
The People would have us reject defense counsel's "hindsight" conclusion, and characterize his actions at the preliminary hearing as tactical based on his understanding of the law at the time of the hearing. They argue that the record, particularly counsel's cross-examination and arguments to the court, indicates defense counsel had thoroughly investigated the CUA defense and his positions were not unreasonable based on the "admittedly unclear nature of the law concerning medical marijuana at the time...." The People maintain that Nespor cannot establish prejudice because he cannot show that but for counsel's errors, the trial court would not have revoked his probation in any event. This is so, the People argue, because he violated his probation by possessing any marijuana.
1. Compassionate Use Act and Medical Marijuana Program Act
The CUA provides a limited immunity defense from prosecution for the cultivation or possession of marijuana by a patient or a patient's primary caregiver "who possesses or cultivates [the] marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." (§ 11362.5, subd. (d); see People v Mower, supra, 28 Cal.4th at pp. 468-469 People v. Urziceanu (2005) 132 Cal.App.4th 747, 772-773.) In 2003, the Legislature passed the Medical Marijuana Program (MMP) to clarify the scope of the CUA's application and "facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers." (Stats. 2003, ch. 875, § 1, subd. (b)(1).) In part, the MMP placed a limit on the amount of marijuana patients and primary caregivers could possess absent a doctor's recommendation that they possess more. (§ 11362.77.)
Section 11362.77, subdivision (a) provided: "A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient." Subdivision (b) of that section stated, "If a qualified patient or primary caregiver has a doctor's recommendation that this quantity does not meet the qualified patient's medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient's needs."
Before passage of the MMP, courts interpreted section 11362.5, subdivision (d)'s qualification to mean a reasonable amount: "[T]he quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient's current medical needs. What precisely are the 'patient's current medical needs' [is], of course... a factual question to be determined by the trier of fact. One (but not necessarily the only) type of evidence relevant to such a determination would be the recommending or approving physician's opinion regarding the frequency and amount of the dosage the patient needs." (People v. Trippet (1997) 56 Cal.App.4th 1532, 1549.) In People v. Mower, supra, 28 Cal.4th 457, the California Supreme Court held that for purposes of asserting a medical marijuana defense, the defendant has the burden of proof to produce enough facts to raise a reasonable doubt as to his lawful possession of marijuana. (Id. at p. 464.) Mower held that a CUA defense can be raised not only as a defense at trial, but also by motion to set aside an information or indictment before trial. (Mower, at pp. 470, 473; People v. Tilehkooh, supra, 113 Cal.App.4th at p. 1443.) In Tilehkooh, the Court of Appeal held a CUA defense may be raised in a probation revocation hearing, because "if successful it would obviate any need for the criminal sanction of revocation." (Tilehkooh, at p. 1443.)
At the time of Nespor's second guilty plea, CALCRIM No. 2370 addressed the compassionate use defense in part as follows: "[Possession of marijuana is lawful if authorized by the Compassionate Use Act. In order for the Compassionate Use Act to apply, the defense must produce evidence tending to show that (his/her) possession or cultivation of marijuana was (for personal medical purposes/ [or] as the primary caregiver of a patient with a medical need) with a physician's recommendation or approval. The amount of marijuana possessed must be reasonably related to the patient's current medical needs. If you have a reasonable doubt about whether the defendant's possession or cultivation of marijuana was unlawful under the Compassionate Use Act, you must find the defendant not guilty." (CALCRIM No. 2370, new January 2006; revised June 2007, italics added.)
On May 22, 2008 (the day after officers found the 28 plants growing at Nespor's home), Division Three of the Second District Court of Appeal issued a decision invalidating the MMPA's numerical quantity limitations. (People v. Kelly (2008) 163 Cal.App.4th 124, rev. granted Aug. 13, 2008, S164830.) In July 2008, the Third District Court of Appeal decided People v. Phomphakdy, supra, 165 Cal.App.4th 857, rev. granted October 28, 2008, S166565. Both cases were later granted review, and in January 2010, the California Supreme Court concluded the those limitations "conflict with - and thereby substantially restrict - the CUA's guarantee that a qualified patient may possess and cultivate any amount of marijuana reasonably necessary for his or her current medical condition, " and that section 11362.77, subdivision (a), therefore "improperly amends the CUA in violation of the California Constitution." (People v. Kelly, supra, 47 Cal.4th at p. 1043.) The court held a "qualified patient" is not subject to any specific limits and does not require a physician's recommendation to exceed any such limit; such a person may possess "an amount of medical marijuana reasonably necessary for [his or her]... personal medical needs." (Ibid.)
2. Defense Counsel's Actions
Nespor's combined preliminary hearing/probation revocation hearing took place on August 6, 2008, following the Second District's decision in People v. Kelly and shortly before the California Supreme Court granted review of that decision on August 13, 2008. At the time, attorney Singleton initially advised Judge Preckel of Nespor's position that he had a valid medical marijuana recommendation. Counsel stated Nespor's possession of 12 mature and 16 immature plants was not unlawfully possessed and the prosecution could not go forward because the prior week, the Courts of Appeal in People v. Kelly and People v. Phomphakdy had struck down the limits contained in section 11362.77. According to defense counsel, the sole basis of the People's position was that the amount possessed was over that limit. The People proceeded to present evidence from the sheriff's deputy who discovered the plants.
On cross-examination, defense counsel confirmed with the sheriff's deputy that at the time of his arrest in May 2008, Nespor was in possession of about 2.2 usable pounds of marijuana. He also confirmed that the officer had relied on another expert's advice as to quantity limits and was not aware that those limits had just been struck down by two appellate courts as an unconstitutional amendment of the CUA. Defense counsel then put Nespor on the stand to testify that he had obtained a medical recommendation from a physician issued on December 4, 2007 that was valid until December 4, 2008. That was the totality of the evidence defense counsel presented at the combined preliminary hearing/probation revocation hearing.
At the conclusion of the evidence, Judge Preckel ruled that he would discharge Nespor based on defense counsel's argument and the recent case authorities. Given an opportunity to respond, the prosecutor did not challenge the appellate courts' invalidation of section 11362.77's quantity limits. He maintained, however, that Nespor had not proven medical necessity: "We have no idea what this defendant's current medical needs are. We have to know that first so we can determine whether or not the amount possessed was reasonably related to those current medical needs. [¶] Irrespective of the guidelines, this court has to make its own independent judgment as to what those - whether or not the amount is reasonably related to those current medical needs. Perhaps he can't use the guidelines anymore based on that court opinion, but it certainly can't say that the defendant's affirmative defense has been satisfied when you have no testimony as to what those current medical needs are or any expert testimony as to whether the amount possessed was reasonably related to those medical needs that we don't even know what they are."
Finding the People's evidence did not support a possession for sale charge, the court changed its tentative to hold Nespor to answer on the possession charge. Defense counsel then informed the court that it was his understanding under Mower and Tilehkhooh that the court was required to dismiss the possession charge upon his proof that Nespor held a valid physician's recommendation. Ultimately, counsel did not present testimony or any other evidence concerning Nespor's medical needs or whether two pounds of usable marijuana was a reasonable amount for his medical needs. It was not until Nespor's sentencing hearing that Nespor's counsel sought to present evidence from a medical marijuana expert that the total weight of usable marijuana was approximately four ounces, and the amount of marijuana possessed by Nespor was "not only reasonably related to his current medical needs, but... was probably inadequate for his needs...."
Defense counsel has an obligation to investigate all defenses, explore the factual bases for defenses, and evaluate the applicable law. (People v. Maguire (1998) 67 Cal.App.4th 1022, 1028.) " 'If counsel's failure to perform these obligations results in the withdrawal of a potentially meritorious defense, defendant has not had the assistance to which he is entitled.' " (Ibid.) Further, while decisions as to whether to call witnesses are usually matters of trial tactics and strategy that appellate courts generally do not second-guess (People v. Bolin (1998) 18 Cal.4th 297, 334; People v. Mitcham (1992) 1 Cal.4th 1027, 1059), a defendant may "sustain a claim of inadequate representation by reason of a failure to call a witness [by making] a showing from which it can be determined that the testimony of the alleged additional defense witness was material, necessary, or admissible, or that defense counsel did not exercise proper judgment in failing to call him." (People v. Hill (1969) 70 Cal.2d 678, 690.)
Here, the circumstances, and Singleton's declaration, establish that Singleton's performance at Nespor's preliminary hearing/probation revocation hearing was deficient and did not meet the standard to be expected of a reasonably competent attorney. Counsel's asserted position was that Nespor's possession of a valid physician recommendation barred prosecution under section 11358 as a matter of law, which misunderstood Nespor's burden in presenting a sufficient CUA defense. Competent counsel would have appreciated that even disregarding the MMPA's numerical limits - which were then invalidated by the appellate court's decision in Kelly - to establish a defense under the CUA, he was obligated under both People v. Mower, supra, 28 Cal.4th 457 and People v. Tilehkooh, supra, 113 Cal.App.4th 1433, to present evidence at Nespor's combined preliminary hearing/ probation revocation hearing as to whether the amount of medical marijuana he possessed was reasonably related to his medical needs. While the People assert that counsel's choice to rely on his interpretation of the law was tactical and reasonable, they do not explain or present evidence as to how counsel's actions were tactical, that is, how they were intended to compel a better result for his client. In sum, counsel acted unreasonably by failing to present such necessary medical or other expert testimony, when, as counsel points out, it was available to him and was in fact belatedly presented at Nespor's sentencing hearing. We cannot say counsel's inability to present the testimony at the time of his client's preliminary hearing/probation revocation hearing was the result of a "tactical" decision to which we would defer.
As for prejudice, the People argue Nespor cannot show the trial court would not have revoked his probation in any event because Nespor violated his probation by possessing any marijuana. This argument misapprehends Judge Szumowski's decision. As we have stated above, by denying Nespor's motion to confirm his marijuana use while on probation, Judge Szumowski left in place the conditions of Nespor's probation at the time, which only disallowed the use of controlled substances without a valid prescription. Hence, Judge Szumowski explained that by his ruling he was not saying Nespor could or could not use marijuana while on probation. If Nespor held such a valid prescription and had shown the amount he possessed was reasonably related to his medical needs, his possession of marijuana would not violate his probation. Judge Preckel was inclined to release Nespor until the People pointed out the absence of any evidence of medical necessity. We reject the People's prejudice argument.
DISPOSITION
The relief sought in the petition for writ of habeas corpus is granted. The judgment is reversed and the trial court directed to vacate Nespor's guilty plea in case No. SCE281024 and set the matter for further proceedings.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.