Opinion
D076774
09-08-2020
THE PEOPLE, Plaintiff and Respondent, v. EDGAR GARCIA, Defendant and Appellant.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD281850) APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed as modified, with directions. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
After a jury convicted Edgar Garcia of grand theft (Pen. Code, § 487, subd. (a)) and vehicle tampering (Veh. Code, § 10852), the trial court imposed a sentence that includes two years' mandatory supervision under section 1170, subdivision (h). For the first time on appeal, Garcia contends the trial court erroneously imposed conditions that he (1) abstain from using marijuana; (2) complete a program of residential drug treatment and aftercare if directed by the probation officer; and (3) submit to drug testing if requested.
Undesignated statutory references are to the Penal Code.
To avoid the general rule that these contentions are forfeited by his attorney's failure to object in the trial court, Garcia contends his sentence is unauthorized and the challenged probation conditions are unconstitutionally overbroad on their face. If forfeited, Garcia asserts his trial attorney rendered ineffective assistance by failing to properly preserve the issue.
We requested additional briefing after discovering a discrepancy between the trial court's oral pronouncement of judgment—which does not impose the marijuana and residential treatment conditions—and the written order, which does. In those briefs Garcia contends and the Attorney General concedes that the court's oral pronouncement controls. We agree and, therefore, Garcia's appeal narrows to a single challenge—the drug test condition.
Garcia's failure to object to the drug test condition in the trial court results in forfeiture on appeal. We reject his contentions that his sentence is either legally unauthorized or facially unconstitutional. Finally, we conclude that the record is inadequate to adjudicate Garcia's ineffective assistance claim on appeal. Accordingly, we modify the judgment to exclude the two drug conditions not imposed at sentencing, and as so modified, affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Theft
Garcia and a cohort stole wheels and tires (valued at $5,840) from a parked car. A surveillance camera recorded the event, and Garcia's fingerprints were on the car's wheel wells. A witness identified Garcia as one of the men he saw earlier that evening acting suspiciously near the vehicle. After a two-day trial, the jury returned guilty verdicts within an hour. B. Garcia's Prior Convictions
Born in 1974, Garcia has two prior felony convictions—one in 1993 for marijuana smuggling, and the other in 2004 for vehicle theft. He also has a 2003 conviction for spousal battery, convictions in 2008 for drunk driving and trespassing (separate incidents), and a 2012 conviction for disturbing the peace. Since 1993, Garcia has been on probation in nine cases. Courts have revoked his probation numerous times.
Garcia told the probation officer that he has not consumed any alcohol for 10 years, but smokes marijuana "once or twice a week for back pain." While on parole for the 1993 marijuana smuggling conviction, Garcia completed a one year substance abuse program. C. Sentencing—Conditions of Probation
The court imposed a split sentence of 365 days in custody and two years' mandatory supervision by the probation department. The probation officer's presentencing report included a draft order stamped "Recommendation Only." Referring to that order, and after imposing victim restitution, the court stated, "And then the other conditions of probation will be here as listed on the probation report." The court read the conditions to Garcia, stating:
"[The court:] Couple of things, then, Mr. Garcia, complete 20 days of public work services directed by the [probation officer (P.O.)]. That's to take care of minor violations in probation rather than having you come back to court. Of course, obey all laws. Follow the course of conduct as directed by the probation officer. . . .
"You can't possess a firearm or ammunition. . . . [Y]ou have to have a photo ID on your person at all times, that is, outside of your own home. DNA samples is [sic] requested. No contact with the co-defendant.
"This is very important, report to the probation officer as requested and within 72 hours of your release from custody. Report any change of address to the probation officer. Stop by law enforcement, provide your true name, date of birth to any law enforcement officer. Report that contact to the P.O. Obtain the probation officer's consent for leaving San Diego County and the Court's and the P.O.'s written consent before moving out of state or going to Mexico. Submit your personal property, place of residence, personal effects to search and seizure at any time requested by the probation officer or law enforcement officer.[]" [¶] . . . [¶]
"Seek and maintain full-time employment, schooling, or a combination of those things. Participate in any assessment program directed by the P.O. Participate in any counseling as directed by the P.O. . . . I don't think alcohol was involved in this case. So I'll strike the alcohol conditions 8B and 8F, I'll strike that, and H—8H.[]
"Of course, don't possess any controlled substances without a prescription. You know, obey all laws. Don't use force or violence against another person except in lawful self-defense. Obtain the P.O.'s approval as to your residence. Don't have any negative contact with the victim, [J.D.] By negative contact, don't annoy or molest.D. Written Order
"If the probation department thinks you're getting involved with drugs, they can ask for testing of you."
The court excluded electronic devices from this search condition.
The recommended order included conditions 8(b) (prohibiting using or possessing alcohol), 8(f) (submitting to chemical tests of blood, breath or urine to determine blood alcohol content), and 8(h) (do not be in places where alcohol is the main item for sale).
The same day, the court signed an order (Order) granting mandatory supervision. In the Order, the handwritten words "electronic devices" in the search condition are crossed out, and a line has been drawn through the checked-off alcohol conditions. Thus, it appears that before the hearing, court staff completed the Order in draft by checking the boxes matching the conditions in the probation officer's recommended order, and after the hearing sought to conform the Order to the court's oral pronouncement of judgment.
Nevertheless, even after these changes, the Order still varies from conditions the court orally imposed. For example, the Order requires Garcia to "[c]omplete a program of residential treatment and aftercare if directed by the probation officer." And in a section entitled, "Further Conditions," the Order states, "No marijuana use at all." But neither of these are in the recommended order, nor did the court mention them at sentencing.
DISCUSSION
Focusing on the court's written order imposing mandatory supervision, Garcia's opening brief challenges three of the listed conditions. He contends that these drug conditions are erroneous because his offenses are unrelated to drug use. Specifically, there is no evidence that Garcia was intoxicated during the offenses, nor is there any evidence that he committed theft to procure drugs. Additionally, Garcia asserts that his admitted use of marijuana (twice a week for back pain) is not criminal conduct. Garcia's only drug-related conviction occurred 27 years ago, he completed drug treatment 24 years ago, he has not consumed alcohol in 10 years, and the trial court struck a recommended condition involving alcohol because there is no evidence of alcohol abuse. Garcia concludes, "The use of legal marijuana for pain relief and a 26-year-old marijuana smuggling conviction do not provide a rational factual basis to conclude that . . . subjecting [Garcia] to drug testing . . . will prevent future criminality."
However, before addressing these contentions we first must determine whether all three drug-related conditions of supervision are part of the judgment. A. Garcia's Supervision Conditions Are Those Included in the Oral Pronouncement of Judgment
"The trial court is generally required to include all aspects of a judgment in its oral pronouncement of judgment. [Citation.] Any discrepancy between the judgment as orally pronounced and as recorded in the clerk's minutes . . . is presumed to be the result of clerical error." (People v. Leon (2020) 8 Cal.5th 831, 855.) Thus, in People v. Connors (2016) 3 Cal.App.5th 729, there was a difference between the court's oral statement and the clerk's minutes as to the scope of a probation condition. (Id. at p. 734, fn. 3.) The appellate court held that absent other information about the discrepancy, the court's oral pronouncement prevailed over the clerk's conflicting recordation of it. Like most general rules, however, this one too is subject to exceptions and nuances. In People v. Holzmann (2018) 18 Cal.App.5th 1241 (Holzmann), for example, the court stated that when there is a conflict between the reporter's and clerk's transcript with respect to a probation condition, "we adopt the version due more credence under the circumstances." (Id. at p. 1243, fn. 1.) Applying that principle, the court in In re D.H. (2016) 4 Cal.App.5th 722 held that a probation order, signed by the defendant, that recited detailed probation conditions controlled over the trial court's less detailed oral pronouncement. (Id. at p. 725.)
Regardless of which of these two rules applies here, the result is the same—"No marijuana use at all" and "[c]omplete a program of residential treatment and aftercare if directed by the probation officer" are not conditions of Garcia's mandatory supervision. Before pronouncing sentence, the court asked defense counsel, "Did you go over" the conditions "with your client or not?" After defense counsel replied, "No, Your Honor. . . . I didn't know what the court was going to do," the court read the conditions of mandatory supervision to Garcia. After doing so, the court asked Garcia, "[D]o you understand them?" Thus, the court sought to ensure that Garcia (who had not reviewed the proposed conditions with his lawyer) was aware of all the material terms of his mandatory supervision, not just some of them.
This conclusion is further supported by comparing the probation officer's recommended order with the conditions the court read aloud at sentencing. The two are nearly mirror images. The trial court read aloud 21 of the 23 conditions in the recommended order. Of the two unread conditions, one is actually directed to the probation department and the other merely requires Garcia to authorize release of certain treatment records to the probation officer. In the words of Holzmann, supra, 18 Cal.App.5th 1241, the oral pronouncement is plainly "due more credence under the circumstances." (Id. at p. 1243, fn. 1.)
It is true, of course, that the court also signed a written order including the no marijuana and residential treatment conditions. However, there is nothing in the record suggesting that the court wrote (or authorized staff to write) those conditions in the Order. Indeed, the record points convincingly in the other direction. These two conditions are not in the probation officer's recommended order. No one even said "marijuana" at the sentencing hearing.
With commendable candor in its supplemental brief, the Attorney General now concedes that "the written order granting mandatory supervision . . . should be corrected to reflect the oral pronouncement." We accept the concession and hold that only one of the three conditions of mandatory supervision that Garcia challenges—submitting to drug tests—is part of his sentence. B. Garcia Forfeited Any Direct Challenge to the Drug Test Condition By Failing to Object in the Trial Court
Mandatory supervision is "akin to state prison commitment," and more similar to parole than to probation. (People v. Fandinola (2013) 221 Cal.App.4th 1415, 1422, 1423.) Accordingly, courts review the terms of supervised release "under standards 'parallel to those applied to terms of parole.' " (People v. Malago (2017) 8 Cal.App.5th 1301, 1306 (Malago).) "The fundamental goals of parole are ' "to help individuals reintegrate into society as constructive individuals" [citation], " 'to end criminal careers through the rehabilitation of those convicted of crime' " [citation] and to [help them] become self-supporting.' " (People v. Martinez (2014) 226 Cal.App.4th 759, 763 (Martinez).) To further these goals, "The state may impose any condition reasonably related to parole supervision." (In re Stevens (2004) 119 Cal.App.4th 1228, 1233.)
"The sentencing court has broad statutory discretion in deciding whether to grant supervised release and any accompanying conditions." (Malago, supra, 8 Cal.App.5th at p. 1305.) Garcia asserts the validity of mandatory supervision terms is determined under a test announced in People v. Lent (1975) 15 Cal.3d 481 (Lent) for determining the validity of conditions of probation. (Martinez, supra, 226 Cal.App.4th at p. 764.) Under Lent, a court abuses its discretion when it imposes a term or condition that " '(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, at p. 486.) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a . . . term." (People v. Olguin (2008) 45 Cal.4th 375, 379.)
Lent's subsidiary holding concerning using misdemeanors for impeachment was superseded by statute. (See People v. Moran (2016) 1 Cal.5th 398, 403, fn. 6.)
The failure to object to a probation condition on Lent grounds in the trial court forfeits the claim on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237 (Welch).) This rule encourages parties to bring errors to the trial court's attention so the court may "modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case." (Id. at p. 235.)
Although mandatory supervision is more like parole than probation, it is similar to probation in the sense that the terms and conditions of the defendant's release are ordered by the court. Thus, the rule of forfeiture pertaining to probation conditions, and the underlying rationale for the rule, also applies to an order imposing conditions of mandatory supervision. Garcia acknowledges that his trial counsel did not object to the drug testing condition. Therefore, his appellate contention is forfeited unless an exception to forfeiture applies.
One such exception is for an issue involving a pure question of law based on undisputed facts. (People v. Bush (2017) 7 Cal.App.5th 457, 479.) Garcia invokes this rule in two contexts. First, he contends that the drug test condition is an "unauthorized sentence," and as such presents a pure question of law. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6 ["A claim that a sentence is unauthorized . . . may be raised for the first time on appeal."].) Second, he contends that the drug test condition is facially unconstitutional, presenting a " 'pure question[] of law that can be resolved without reference to the particular sentencing record developed in the trial court.' " (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).)
"[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) Examples include a sentence that violates a statute mandating consecutive terms, erroneous imposition of determinate terms, an erroneous stay of sentence, and failure to state reasons for a prison term. (See cases collected in Welch, supra, 5 Cal.4th at pp. 235-236.)
Garcia's argument fails because the propriety of the drug test condition is necessarily a fact-based inquiry; it cannot be resolved as a matter of law. Indeed, the fact that the superior court's form order for mandatory supervision includes a preprinted check box for a drug test condition demonstrates such a condition is routinely imposed. Here, Garcia contends the trial court exercised its lawful discretion in an erroneous manner under the particular facts—that is, the absence of any evidence of his intoxication during the crimes, the remoteness of his only drug offense (in 1993), his 10-year abstinence from alcohol, and the absence of any evidence that he currently abuses controlled substances. Imposing the drug test condition in this case may or may not be an abuse of discretion—we need not and do not decide that point. Regardless, it is not an unauthorized sentence as a matter of law.
For the same reason, Garcia's claim that the drug test condition is facially overbroad also fails. In considering such a claim, we focus solely on the constitutionality of the challenged condition, not whether it is reasonable as applied to Garcia. (Sheena K., supra, 40 Cal.4th at p. 878.) "A restriction is unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' [Citations.] The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
The drug test condition is not facially overbroad. Determining whether a probation condition is reasonably related to future criminality is highly fact specific. (People v. Lindsay (1992) 10 Cal.App.4th 1642, 1644.) Courts have found the requisite nexus between alcohol/drug probation conditions and future criminal conduct in cases where there has been an alcohol or drug related conviction, drugs involved in the surrounding facts of the crime, or a history of drug or alcohol abuse. (See, e.g. People v. Moret (2009) 180 Cal.App.4th 839, 842 [upholding probation condition requiring abstention from marijuana]; People v. Balestra (1999) 76 Cal.App.4th 57, 61, 68 [upholding drug and alcohol testing conditions]; People v. Beal (1997) 60 Cal.App.4th 84, 86-87 [nexus between drug use and alcohol consumption].)
We acknowledge that a drug test condition could be overbroad as applied in certain cases. As-applied challenges are fact-driven inquiries that examine whether the manner or circumstances in which the condition has been applied was constitutional. (E.g., People v. Bauer (1989) 211 Cal.App.3d 937, 944 [residency condition unconstitutional as applied, considering the nature of the offender and the criminal conduct].) Because Garcia failed to raise an as-applied challenge in the trial court, however, we must resolve his claim without reference to the sentencing record. C. Garcia's Ineffective Assistance of Counsel Claim Cannot be Resolved on Appeal
Anticipating we might hold he forfeited any direct challenge by failing to object in the trial court, Garcia contends that "defense counsel was prejudicially ineffective for failing to object to the drug conditions." However, an ineffective assistance claim on appeal "must be rejected" if " 'the record on appeal sheds no light on why counsel . . . 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.' " (People v. Wilson (1992) 3 Cal.4th 926, 936.)
Garcia maintains there is "no tactical reason or satisfactory explanation" for defense counsel's failure to object to the drug test condition. He further asserts that had counsel objected, it is very likely that the court would have not imposed drug conditions because without prompting by counsel, the court struck the alcohol conditions despite Garcia's prior conviction for driving under the influence.
We disagree. Even assuming the drug testing condition fails under Lent, supra, 15 Cal.3d 481, we cannot say based solely on the appellate record that counsel rendered ineffective assistance by failing to object. At sentencing, the trial court expressed its desire to impose a longer prison sentence, stating:
"[U]nfortunately, I have to follow the law, and under [section] 1170 [subdivision] (h)(5), I can't really give good reasons without pushing the envelope as to denying probation and just sentence you to two or three years in prison.
"So my feeling is it's going to be one year of custody, two years supervised probation." [¶] . . . [¶]
"I can tell you if it weren't for some of the law changes, this would be a two- or three-year straight prison commitment. There's no doubt in my mind."
A trial court's decision to impose mandatory supervision is discretionary. (People v. Catalan (2014) 228 Cal.App.4th 173, 178.) Under section 1170 subdivision (h)(5), the court may find "in the interests of justice" that mandatory supervision is not appropriate in a particular case. The court's comments indicate it was seriously considering a two- or three-year prison sentence. Accordingly, defense counsel could have reasonably concluded that objecting to a potential drug testing requirement—especially for Garcia (who claimed to have abstained from alcohol for 10 years, and admitted using marijuana only twice a week for back pain)—gained him little practical benefit and risked a substantially longer prison sentence. The record on appeal is thus inadequate to adjudicate Garcia's ineffectiveness claim.
DISPOSITION
The trial court shall strike condition 6(a) (residential treatment) and strike condition 11(a) (no marijuana use at all), and forward a copy of the amended order to the San Diego County probation department. (People v. Forrest (2015) 237 Cal.App.4th 1074, 1086.) As so modified, the judgment is affirmed.
DATO, J. WE CONCUR: BENKE, Acting P. J. AARON, J.