Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC156664
Sepulveda, J.
Following a negotiated plea agreement, defendant Adam D. Mrozek was convicted of one count of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)). The trial court placed defendant on supervised probation for three years, subject to various terms and conditions. On appeal, defendant contends the trial court erred by denying him Proposition 36 probation. Defendant further claims that the conditions of his probation improperly limit his ability to use medical marijuana. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Traffic Stop
On the evening of November 24, 2007, at approximately 8:00 p.m., defendant was driving westbound on Rowland Boulevard. Novato peace officer Michael Wacholz initiated a traffic stop because the vehicle did not have its headlights on. After defendant pulled into a nearby gas station, his passenger, Berry Dominga Bradford, immediately got out of the car and headed for the restroom. Defendant was sitting in the driver’s seat with the car window open. As soon as Officer Wacholz approached defendant, he smelled a “very strong odor” of marijuana emanating from inside the vehicle.
After obtaining defendant’s license, Officer Wacholz conducted a records check and discovered that defendant was on probation out of Humboldt County for transportation, distribution, and importation of marijuana. Upon learning of defendant’s probation, Officer Wacholz returned to the vehicle and asked defendant if he had “anything” inside. Defendant replied that he had “about a pound,” likely referring to the marijuana that was later found in the vehicle.
Officer Wacholz then conducted a search of the vehicle, which revealed several containers with marijuana inside, a digital scale and a “professional mini-scale,” numerous baggies, a grinder, and other drugs, including methamphetamine and various paraphernalia. Although many small amounts of marijuana were found in containers scattered about the car, the bulk of the marijuana, approximately 464 grams, was found in two separate plastic bags located in a blue duffel bag. Officer Wacholz found a notebook, but he did not find any pay/owe sheets or any money inside the car. Officer Wacholz also observed a number of personal items, including clothing, in the back seat of the car, indicating that either defendant had been in the process of moving or he had been living in the car. A large, machete-style knife was also found in the back seat.
Defendant had an outdated medical marijuana card in his wallet, as well as an expired “Medi-Cann certificate,” recommending that he use medical marijuana for a period of 12 months. Both documents had expired three months earlier, in August 2007. Upon being arrested, defendant surrendered a methamphetamine pipe that he had in his sock. A dental floss container with psilocybin powder inside was also seized from defendant’s pocket.
While he was talking with defendant, Officer Wacholz kept a watchful eye on Bradford, who had started to return to the vehicle, but abruptly turned around and went into the mini-mart at the gas station. Defendant told Officer Wacholz that Bradford was his girlfriend, and that she believed she had a warrant out for her arrest. Officer Wacholz’s partner, Officer Thomas MacKenzie, went into the store to obtain Bradford’s identification. Bradford gave Officer MacKenzie a false name, which showed no warrants, so he released her. However, when the officers discovered contraband near the passenger seat of the car, they returned to the store and arrested Bradford; Bradford, did, in fact, have a warrant out for her arrest.
B. Charges Filed and Preliminary Hearing
Defendant was charged with sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a); [count 1]); possession for sale of marijuana (Health & Saf. Code, § 11359; [count 2]); possession of a controlled substance (methamphetamine) (Health & Saf. Code, § 11377, subd. (a) [count 3]); possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a) [count 4]); and possession of a smoking device (Health & Saf. Code, § 11364 [count 6].) It was further alleged in the amended complaint that defendant had served a prior prison term within the meaning of Penal Code section 667.5.
Count 5 relates solely to codefendant Bradford, who is not a party to the instant appeal.
At the preliminary hearing, the trial court dismissed count 2 (possession for sale of marijuana) and held defendant to answer on the remaining counts and special allegation. In finding insufficient evidence to hold defendant to answer on the possession for sale charge, the trial court noted that, despite the presence of scales, baggies, and a pound of marijuana in the car, no money was found in the car. In so ruling, the trial court explained that no one “even slightly qualified” opined that the items were possessed for the purposes of sale.
C. Negotiated Plea
Following the preliminary hearing, defendant entered a not guilty plea as to counts 1, 3, 4, and 6 and denied the special allegation. He subsequently withdrew his plea and entered into a negotiated plea agreement. Defendant entered an Alford plea, by pleading guilty to transportation of marijuana (count 1), and the remaining counts were dismissed with a Harvey waiver. The trial court indicated that it would allow argument at sentencing regarding defendant’s eligibility for Proposition 36 probation.
North Carolina v. Alford (1970) 400 U.S. 25, 37 (best interests plea).
People v. Harvey (1979) 25 Cal.3d 754.
D. Sentencing
At the sentencing hearing, neither party presented additional testimony. However, the trial court had read and considered the probation report, which included additional details about defendant’s prior drug conviction in 2003. The probation report indicated that at the time of defendant’s 2003 arrest in Humboldt County, over six pounds of marijuana was seized from his vehicle. According to the probation report, defendant admitted that he had obtained the marijuana from a third party and was traveling to Eureka for the purpose of selling it.
After hearing argument, the trial court denied defendant’s request for Proposition 36 probation, ruling as follows: “So notwithstanding my ruling at the preliminary hearing, this really does look like a possession for sales case to me. [¶] Although I didn’t find that there was probable cause at the preliminary hearing for that purpose, considering the information I’ve read in the Humboldt County Probation Report, the fact there were scales here, although there’s no expert testifying here in court today, these factors just do not militate in favor of a finding that this was solely for personal use. [¶] I think that there are strong indications at the very least that this marijuana was possessed for purpose of sale or distribution in some fashion. It would just be too much of a stroke of bad luck for the defendant—to conclude that he was simply transporting over a year’s worth for his personal use at that particular moment in time with scales and so forth. [¶] In light of his prior conduct that’s very similar, the Court’s opinion is that there are too many indications of sales to grant him Prop 36. It’s just not a Prop 36 case.”
In fashioning the conditions of defendant’s supervised probation, the court expressed its concerns about defendant’s intention to use marijuana medically. Consistent with these concerns, the trial court limited defendant’s possession of medical marijuana to a two-day supply, subject to the approval of the probation department. In imposing these conditions, the trial court explained as follows: “I don’t want to interfere with your valid medical reasons to treat your ailments, but carrying around a pound is just not going to look good for you; so if you do have a valid medical marijuana card, and there is no alternative, you can possess a small amount of marijuana, no more than two days’ worth supply at any one time. So if you have a week’s worth, you’re going to still be in violation of probation, even if you have a medical marijuana card. [¶]... [¶] Incidentally, if the Probation Department feels that there are contraindications with regard to your marijuana use and any other issues, whether medications or personal issues regarding your treatment here, in particular, if you’re in a program, and the program doesn’t want you using marijuana for medical purposes, then you’re not entitled to use medical marijuana at all. [¶]... [¶] So I’m not going to allow [medical marijuana use] without the approval of the Probation Department. If you want to put it on for a hearing if they disagree with you, you can put it on for a hearing, and I’ll ultimately decide. I don’t want to play doctor, but I want to know all of the circumstances.” (Italics added.)
II. DISCUSSION
A. Proposition 36
1. Background
The Substance Abuse and Crime Prevention Act of 2000, also known as Proposition 36, “is codified in Penal Code sections 1210, 1210.1, and 3063.1 and Health and Safety Code section 11999.4 et seq.” (People v. Canty (2004) 32 Cal.4th 1266, 1273, fn. 1; People v. Dove (2004) 124 Cal.App.4th 1, 6 (Dove).) Proposition 36 “ ‘ “dramatically changed the penal consequences for those convicted of nonviolent drug possession offenses.” [Citation.]’ [Citation.]” (Dove, supra, at p. 6.) “Following the enactment of Proposition 36,... a defendant who has been convicted of a ‘nonviolent drug possession offense’ must receive probation and diversion into a drug treatment program, and may not be sentenced to incarceration as an additional term of probation.” (Canty, supra, at pp. 1272-1273; Pen. Code, § 1210.1, subd. (a).) Section 1210, subdivision (a) defines “[t]he term ‘nonviolent drug possession offense’ ” as “the unlawful personal use, possession for personal use, or transportation for personal use... of any controlled substance.... The term ‘nonviolent drug possession offense’ does not include the possession for sale, production, or manufacturing of any controlled substance....”
Thus, Proposition 36 probation may be available to a defendant “where the transportation is of an amount for personal use....” (People v. Barasa (2002) 103 Cal.App.4th 287, 295 (Barasa).) In Barasa, the Fourth District Court of Appeal held that a defendant seeking Proposition 36 treatment has the burden of proving that the possession or transportation of the controlled substance was for personal use. (Id. at pp. 295-296.) There, the defendant argued that the prosecution “must prove the negative; that is, the drugs transported were transported for commercial rather than personal usage.” (Id. at p. 296.) The Barasa court disagreed, concluding that “the law is clearly settled to the contrary.” (Ibid.) In so holding, the court explained that Evidence Code sections 500 and 550 provide that “ ‘ “a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” ’... [Citation.]” (Barasa, supra, 103 Cal.App.4th at p. 296.)
Defendant disputes the “legitimacy” of Barasa and asserts that it is “not binding” on this court. This contention is without merit. Every court that has considered this issue has reached a similar result. (See, e.g., Dove, supra, 124 Cal.App.4th at pp. 10-11 [citing Barasa with approval]; People v. Glasper (2003) 113 Cal.App.4th 1104, 1115-1116 [adopting the reasoning from Barasa and concluding that the defendant has the burden to prove that he or she possessed the drugs for personal use]; cf. People v. Atwood (2003) 110 Cal.App.4th 805, 812-813 [distinguishing Barasa but noting that a defendant seeking Proposition 36 probation has the burden of proof].) Defendant has not persuaded us that Barasa, supra, 103 Cal.App.4th 287 and its progeny were wrongly decided. As a result, we reject his claim that the trial court erred in allocating the burden to him to establish his eligibility for Proposition 36 treatment. With these principles in mind, we examine defendant’s eligibility for Proposition 36 probation.
2. Eligibility for Proposition 36 Probation
Defendant argues he is entitled to Proposition 36 probation based on the trial court’s finding there was insufficient evidence to hold him to answer regarding the possession for sale charge. He argues the trial court erred by considering his prior conviction as constituting substantial evidence of transportation for sale in the instant case.
The trial court’s decision to dismiss the possession for sale offense is not the equivalent of a finding that he possessed the marijuana “for personal use” within the meaning of section 1210. Possession of drugs may or may not be “for personal use” of their possessor. For example, a defendant may possess drugs (e.g., a “date rape” drug) without possessing those drugs for his or her personal use, but rather for use (or consumption) by another person (whether intentionally or as an unknowing victim). Therefore, a defendant can be convicted of simple drug possession without possessing those drugs “for personal use” within the meaning of Proposition 36. Because Proposition 36 was intended to grant probation and drug treatment to only those defendants who are drug addicts or have other personal drug usage problems, a defendant convicted of simple drug possession is not entitled to Proposition 36 treatment absent an additional finding that his or her drug possession was “for personal use” within the meaning of section 1210. Therefore, the dismissal of the possession for sale offense did not equate with a finding by the trial court that defendant necessarily possessed the marijuana “for personal use.” On the contrary, the dismissal of the charge of possession for sale merely meant the prosecution did not present sufficient evidence establishing probable cause that defendant possessed the marijuana for sale. (See, e.g., Dove, supra, 124 Cal.App.4th at p. 11.) Thus, it cannot reasonably be inferred from the dismissal of the charge of possession for sale that defendant necessarily possessed the drugs “for his personal use” within the meaning of section 1210.
Probable cause to hold a defendant to answer is shown if a person “ ‘ “of ordinary caution or prudence [would be led] to believe and conscientiously entertain a strong suspicion of the guilt of the accused....” ’ ” (Ortega v. Superior Court (1982) 135 Cal.App.3d 244, 256.)
Because the dismissal did not decide the question of whether defendant’s drug possession was “for personal use” within the meaning of section 1210, the trial court properly addressed that issue and found defendant’s drug possession was not “for personal use.” (Ibid.) The trial court properly considered the evidence in the record on the issue of whether defendant possessed the pound of marijuana “for personal use.” (Ibid.) Specifically, the record implicitly demonstrated the fact of non-personal use, by reason of the quantity of marijuana, digital and professional scales, together with defendant’s prior conviction based on substantially similar circumstances. More importantly, defendant did not present any evidence at sentencing, showing his possession of one pound of marijuana was for his personal use.
To obtain the benefits of Proposition 36, the defendant “has the burden of proving that the possession or transportation was for personal use.” (Dove, supra, 124 Cal.App.4th at p. 10; People v. Glasper, supra, 113 Cal.App.4th 1104 at p. 1115; Barasa, supra, 103 Cal.App.4th at pp. 295-296.) Here, the trial court concluded defendant did not meet his burden and the court’s finding that defendant possessed the marijuana for sale is supported by substantial evidence. (Dove, supra, at p. 10.)
B. Conditions of Probation
Defendant contends that the trial court erred in placing limits on his use of medical marijuana, by improperly delegating authority to the probation officer. He also claims that the condition limiting his medical marijuana use to “two days’ supply” was void for vagueness. Penal Code “[s]ection 1203.1 gives trial courts broad discretion to impose conditions of probation to foster rehabilitation of the defendant, protect the public and the victim, and ensure that justice is done. (§ 1203.1, subd. (j); Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319.) ‘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....” [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.’ (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted.)” (People v. Jungers (2005) 127 Cal.App.4th 698, 702.)
On appeal, our review is limited to a determination whether the trial court abused its discretion in imposing the challenged probation condition. As with any exercise of discretion, the trial court violates this standard when it imposes a condition of probation that is arbitrary, capricious, or exceeds the bounds of reason under the circumstances. (People v. Welch (1993) 5 Cal.4th 228, 234.) We find no such abuse of discretion here.
1. Delegation
Defendant claims that the trial court improperly granted authority to the probation department to unilaterally determine whether he was entitled to use medical marijuana. He insists that the order granting probation “effectively invalidate[s] a physician’s medical marijuana recommendation” and constitutes an unlawful delegation of judicial authority. We disagree.
Defendant did not object to this condition below, but maintains that the issue has not been waived because it presents a “pure question of law.” Assuming, without deciding, that this issue has been preserved on appeal, it nevertheless fails on the merits.
Although several cases have invalidated conditions of probation that effect excessive delegations of authority (see, e.g., People v. Cervantes (1984) 154 Cal.App.3d 353, 356-357, 361 [probation officer to determine propriety, amount, and manner of restitution to be paid]; In re Shawna M. (1993) 19 Cal.App.4th 1686, 1690-1691 [juvenile court delegated excessive authority over parental visitation to a county child welfare agency]; In re Debra A. (1975) 48 Cal.App.3d 327, 330 [juvenile court could not delegate to probation officer discretion to determine place of a series of detentions]), there is no basis for invalidating the challenged condition here.
Despite defendant’s claims to the contrary, the trial court is not equipped to micromanage his medical needs. The order places the burden of overseeing defendant’s medical marijuana use on the probation officer, who presumably has the time and resources to most efficiently carry it out. We acknowledge defendant’s concern that a probation officer could override a physician’s medical marijuana recommendation. However, the challenged condition does not place defendant completely at the mercy of the probation department. At the sentencing hearing, the trial court expressly stated that the ultimate decision regarding defendant’s medical marijuana use would come from the court, not the probation department. Moreover, defendant can seek judicial intervention if and when the probation officer seeks to exercise the delegated authority. (§ 1203.3; see also People v. Penoli (1996) 46 Cal.App.4th 298, 308 [trial court did not delegate excessive authority to probation department to select drug rehabilitation program with authority to determine successful completion].) We decline to hold, on this record, that this remedy is insufficient or that the delegation of authority to oversee defendant’s use of medical marijuana was otherwise erroneous.
2. Vagueness
Defendant also contends the condition that he possess no more than a “two-days’ supply” of medical marijuana was impermissibly vague because it did not sufficiently apprise him of the permissible amount.
Defendant admits that he did not object to this condition below, but argues that his claim is “worthy of review” because the condition is “sweeping and burdensome,” in that it seeks to limit his “medical prescription” to a two-day supply. Putting aside the fact that defendant’s argument against forfeiture is actually a challenge to the reasonableness of the condition, which was also not preserved below, his claim that the condition is void for vagueness is without merit.
In imposing the probation conditions, the trial court expressly stated that it did not want to interfere with defendant’s medical treatment, but admonished defendant that carrying around of “a pound” of marijuana would not be considered a reasonable amount. The record reflects that defendant informed his probation officer that he regularly smoked marijuana four times a day. Therefore, defendant, if not his counsel, knew that possessing more than eight marijuana cigarettes would exceed the limits of the condition imposed.
The trial court, by imposing a two-day supply limit, has given defendant a fair warning that possession of any significant amount of marijuana will subject him to revocation. Given the quantity of marijuana, packaging, and scales found at the time of defendant’s arrest, together with his prior history of selling and transporting marijuana for purposes of sale, the condition was entirely reasonable.
IV. DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P. J., Reardon, J.