Opinion
A150185
12-12-2017
THE PEOPLE, Plaintiff and Respondent, v. TYLER MARIE CONWAY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC194418)
After defendant Tyler Marie Conway pleaded guilty to embezzlement by an employee, a felony (Pen. Code, § 508), the trial court placed her on three years probation and imposed various terms and conditions. Defendant challenges several of the probation conditions and, as to those conditions to which she did not object below, claims she received ineffective assistance of counsel. We affirm.
BACKGROUND
Video surveillance showed defendant conducting multiple fraudulent returns over the course of five months, between March and August 2015. After loss prevention officers detained her, she admitted to conducting the transactions and voluntarily signed a calculation of losses and a promissory note.
Defendant was charged with one count of embezzlement by an employee, a felony (Pen. Code, § 508). She pleaded guilty to the charge, and the People agreed to not object to a reduction of the charge to a misdemeanor if she paid $7,176.16 in restitution. The court found defendant knowingly, intelligently and voluntarily entered the plea and waived her rights, and accepted her guilty plea.
Although defendant had apparently hoped to pay the restitution prior to sentencing, she was unable to do so. Accordingly, the court went forward with felony sentencing. Defense counsel requested modification of several terms and conditions of probation, including that defendant disclose her conviction to her current employer, that she seek approval from probation before accepting a job offer or changing employment, and that she participate in counseling on a weekly basis. Over the prosecutor's objection, the court modified the conditions requiring disclosure to her employer and probations approval to jobs that would require defendant to handle " 'money or financial records' " or " 'involves cash, credit, or handling of financial records,' " and modified the counseling condition to require defendant to participate in counseling " 'as directed,' rather than 'on a weekly basis.' "
The court then suspended imposition of sentence, placed defendant on three years' supervised probation, ordered her to serve 90 days in custody with credit for one day, and imposed various terms and conditions, including that she "participate in a drug and alcohol assessment and abide by any treatment recommendation that is directed," not "use, consume, or possess any non-prescribed or illegal substances, including prescribed marijuana, unless specifically authorized to do so by the court," and submit to chemical testing. When asked if she understood these conditions, defendant responded, "Yes."
DISCUSSION
The Probation Conditions
Forfeiture
Citing People v. Lent (1975) 15 Cal.3d 481 (Lent), superseded on other grounds in People v. Wheeler (1992) 4 Cal.4th 284, 290-292, defendant contends the trial court abused its discretion by prohibiting her use of medical marijuana absent court approval and by imposing two alcohol-related conditions. The Attorney General claims defendant has forfeited these challenges by failing to object to these conditions in the trial court.
The Supreme Court has unequivocally held that "failure to timely challenge a probation condition on 'Bushman/Lent' grounds in the trial court waives the claim on appeal." (People v. Welch (1993) 5 Cal.4th 228, 237 (Welch).) "A Court of Appeal will review the reasonableness of a probation condition only if the probationer has questioned it in the trial court." (People v. Barajas (2011) 198 Cal.App.4th 748, 753.) "[N]either party may initiate on appeal a claim that the trial court failed to make or articulate a ' "discretionary sentencing choice[]." ' " (In re Sheena K. (2007) 40 Cal.4th 875, 881 (Sheena K.), quoting People v. Gonzalez (2003) 31 Cal.4th 745, 751.)
In re Bushman (1970) 1 Cal.3d 767, disapproved in part in Lent, supra, 15 Cal.3d at page 486, footnote 1.
"Applying the [forfeiture] rule to appellate claims involving discretionary sentencing choices or unreasonable probation conditions is appropriate, because characteristically the trial court is in a considerably better position than the Court of Appeal to review and modify a . . . probation condition that is premised upon the facts and circumstances of the individual case." (Sheena K., supra, 40 Cal.4th at p. 885.) "A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis." (Welch, supra, 5 Cal.4th at p. 235.)
Because defendant made no objection to the trial court's imposition of the no medical marijuana and two alcohol-related conditions, she has forfeited any reasonableness challenge on Lent grounds.
Reasonableness
Even if defendant had not forfeited Lent challenges to these probation conditions, there is no merit to her assertion that they cannot survive under the standard set forth in that case.
The probation report disclosed that defendant regularly used "medical" marijuana and that she had consumed alcoholic beverages on a social basis since graduation from high school. She asserted she had been given a prescription for "medical" marijuana and consumed it twice a week. She told probation that she has never needed treatment, however, for either drugs or alcohol. She also said she has a history of serious anxiety and depression, and she continues to suffer from both. Defendant did not provide a copy of a medical marijuana prescription to either the probation department or the court.
Under Health and Safety Code section 11362.795 subdivision (a)(1), a "defendant who is eligible to use medical cannabis . . . may request that the court confirm that he or she is allowed to use medical cannabis while he or she is on probation. . . ."
Given this record, the trial court did not violate Lent in imposing the following three conditions: (1) That defendant "participate in a drug and alcohol assessment and abide by any treatment and recommendation that is directed"; (2) That "during the period of probation" defendant is "not to use, consume, or possess any non-prescribed or illegal substances, including prescribed marijuana, unless specifically authorized to do so by the Court"; and (3) That defendant is "to submit to chemical testing at the request of any peace officer or probation officer to determine the drug or alcohol content of your system."
In People v. Leal (2012) 210 Cal.App.4th 829 (Leal), Division Two of this court set forth a three-step framework for evaluating probation conditions that prohibit the use of medical marijuana. "First, we examine the validity of any CUA authorization; second, we apply the threshold Lent test for interfering with such authorization; and third, we consider competing policies governing the exercise of discretion to restrict CUA use." (Leal, at p. 837.) This framework, thus, incorporates and expands on the Lent test.
Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.7 et seq.).
Considering the first step described in Leal, we have no basis for considering the validity of defendant's claim that she has a current prescription for medical marijuana. Unlike the defendant in Leal, defendant never produced a prescription for medical marijuana. Therefore, unlike the court in Leal, we can make no presumption that defendant has a currently valid prescription for such. (See Leal, supra, 210 Cal.App.4th at pp. 838-839 [discussing widespread abuse of medical marijuana and frequency of fraudulent claims of approval for medicinal use].)
Turning to the second step described in Leal, under the Lent test 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, fn. omitted.) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation [condition]. [Citations.] As such, even if a condition of probation has no relationship to the crime of which 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." (People v. Olguin (2008) 45 Cal.4th 375, 379-380.) Here, the first two prongs—that the conditions do not relate to the crime, itself, and impinge on conduct that is otherwise lawful—are arguably both satisfied. However, given defendant's admitted frequent use of marijuana and that she commenced consuming alcohol underage, as well as the extended period of her criminal conduct in committing the thefts, we conclude the third prong of Lent—that the conditions are not reasonably related to deterring future criminality—is not satisfied. The court could reasonably conclude, as recommended by the probation department, that court approval be required for medicinal use of marijuana and that defendant not consume alcohol and be subject to drug and alcohol testing.
Given that the record does not support an assumption that defendant has a currently valid prescription for medicinal use, we need not proceed to the third step described in Leal. But even if we considered it, there is no record to conclude defendant has a need for medicinal marijuana that outweighs the fact the condition passes muster under Lent. As the court explained in Leal, step three balancing "will vary widely from case to case. In an extreme case of need for medical marijuana, for example, the drug might be an effective and least harmful way to alleviate debilitating suffering from end-stage pancreatic cancer. [Citation.] . . . It is also hard to imagine that a probation order banning a person so afflicted from using medical marijuana pursuant to the CUA would not constitute an abuse of discretion despite a Lent-based nexus to the selling offense, for example, where there was little or no further threat to society. Far more commonly, of course, the rehabilitative/protective need could outweigh a lesser medical need, or one that could be efficaciously met by alternative means." (Leal, supra, 210 Cal.App.4th at p. 844.) "The requisite balancing contemplates a judicial assessment of medical need and efficacy based upon evidence: the defendant's medical history, the gravity of his or her ailment, the testimony of experts or otherwise qualified witnesses, conventional credibility assessments, the drawing of inferences, and perhaps even medical opinion at odds with that of the defendant's authorizing physician." (Ibid.) The record here contains none of the evidence contemplated by Leal.
Accordingly, even as augmented by Leal, defendant's reasonableness challenge to the medicinal marijuana and drug and alcohol conditions is without merit.
Constitutional Right of Privacy
Defendant also challenges the court approval required for medical marijuana condition as a violation of her constitutional right to privacy. Her failure to raise this objection in the trial court does not result in forfeiture. (See Welch, supra, 5 Cal.4th at p. 237.) Our review of this issue is de novo. (People v. Mendez (2013) 221 Cal.App.4th 1167, 1172.)
Given that any possession of marijuana is a crime under federal law, defendant cannot succeed on any privacy argument based on the federal constitution. "The possession of marijuana is a crime under the laws of the United States. (21 U.S.C. § 844.) 'Even though state law may allow for prescription or recommendation of medical marijuana within its borders, to do so is still a violation of federal law under the [Controlled Substances Act].' [Citation.] '[F]or purposes of the Controlled Substances Act, marijuana has "no currently accepted medical use" at all.' [Citations.] Accordingly, there is no medical necessity defense under the federal Controlled Substances Act for marijuana." (People v. Bianco (2001) 93 Cal.App.4th 748, 753 (Bianco).)
Even if we were to consider only state constitutional privacy protections, a probation condition can still infringe on a supposed constitutional right so long as the condition is narrowly tailored. (Sheena K., supra, 40 Cal.4th at p. 890; In re Christopher M. (2005) 127 Cal.App.4th 684, 695 ["the invasion of the privacy interest is justified because it substantially furthers one or more legitimate competing or countervailing privacy or non-privacy interests"]; Bianco, supra, 93 Cal.App.4th at pp. 753-754 ["A probation condition may regulate or prohibit otherwise lawful conduct that 'is reasonably related to the crime of which the defendant was convicted or to future criminality.' "].) As we have discussed above, the court-approval requirement for medicinal use is reasonably related to deterring future criminality. Moreover, it is not an outright prohibition on such use. Rather, it leaves open the possibility of court approval on an adequate showing by defendant.
Disapproved on other grounds as stated in People v. Gonzales (2013) 56 Cal.4th 353, 375, footnote 6.
Vagueness
Defendant also contends the condition prohibiting the use, consumption or possession of "any non-prescribed or illegal substances, including prescribed medical marijuana," is unconstitutionally vague and overbroad. (Italics added, boldface omitted.) " '[O]verbreadth involves the scope of a directive while vagueness involves its clarity.' " (People v. Contreras (2015) 237 Cal.App.4th 868, 884.)
We agree the condition must be clarified, as it currently prohibits defendant from consuming "any" "non-prescribed" "substance," which could include anything from a caffeinated soda to over-the-counter cold medication. Plainly, that was not the intent of the trial court. The Attorney General claims the condition is readily understood as prohibiting defendant from using, consuming or possessing any prescription drugs without a valid prescription, and any illegal substances, including prescribed medical marijuana. Defendant also "surmis[es]" that is what the court intended, and makes no objection to such language. Accordingly, we shall order the condition modified.
Ineffective Assistance of Counsel
Defendant lastly contends she was denied effective assistance of counsel because of her lawyer's failure to object to the marijuana and drug and alcohol probation conditions.
To establish a claim of ineffective assistance of counsel, "the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice. . . . When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.) " '[T]he appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation" [citation], the contention must be rejected.' " (People v. Kelly (1992) 1 Cal.4th 495, 520.) We will reverse a trial court decision on the grounds of ineffective assistance of counsel " 'only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his [or her] act or omission.' " (People v. Zapien (1993) 4 Cal.4th 929, 980.)
As defendant is raising the claim of ineffective assistance of counsel on direct appeal and not by way of writ, we must reject the claim unless there simply could be no satisfactory explanation for trial counsel's failure to challenge the probations conditions in question. (People v. Kelly, supra, 1 Cal.4th at p. 520.)
While defendant asserts "[o]n this record, there can be no conceivable reason for trial counsel not to fully object to the court's imposition" of the medical marijuana, and drug and alcohol conditions, we conclude otherwise. As we have recited, the reduction of defendant's conviction from a felony to a misdemeanor depended on her paying $7,167.16 in restitution. It was therefore entirely reasonable for trial counsel to focus on and challenge the probation conditions that impacted her employment, and defendant succeeded in persuading the trial court to modify those conditions. Furthermore, given the information in the probation report, counsel could well have concluded the court would not be receptive to a challenge to the medicinal marijuana and drug and alcohol conditions.
As a rational explanation for counsel's failure to object exists, we reject defendant's claim of ineffective assistance of counsel.
DISPOSITION
The challenged probation condition is modified to read, "You are ordered during the period of probation not to use, consume, or possess any illegal substances, prescribed substances for which you do not have a valid and current prescription, or medical marijuana, unless specifically authorized to do so by the Court." As so modified, the judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.