Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1068320
Bamattre-Manoukian, ACTING P. J.
Defendant Javier Salazar was convicted after jury trial of possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and being under the influence of a controlled substance (§ 11550, subd. (a); a misdemeanor). The trial court suspended imposition of sentence and placed defendant on Proposition 36 probation for two years with various terms and conditions.
All further statutory references are to the Health and Safety Code unless otherwise specified.
On appeal, defendant contends that: (1) the court prejudicially erred and violated his due process rights by admitting into evidence his audiotaped statements to the police regarding his prior drug use; (2) the court prejudicially erred by misinstructing the jury under section 11550; and (3) the court imposed improper and unconstitutional conditions of probation. We will modify the judgment relating to some of the ordered conditions of probation and affirm the judgment as so modified.
BACKGROUND
Defendant was charged by information with possessing Vicodin, a controlled substance (§ 11350, subd. (a); count 1); being under the influence of cocaine, a controlled substance (§ 11550, subd. (a); count 2, a misdemeanor); and possessing 28.5 grams or less of marijuana (§ 11357, subd. (b); count 3, a misdemeanor). The prosecutor moved in limine for admission of evidence of any statements defendant made “at the scene and in the patrol vehicle.” The court granted the motion over defendant’s objection.
The Prosecution’s Case
San Jose Police Officer Todd McMahon testified as an expert in the recognition of the signs and symptoms of a person under the influence of a stimulant, and in the recognition of a usable amount of Vicodin, also known as hydrocodone. He testified that, on January 15, 2010, at approximately 6:00 p.m., he was talking to two other officers in the parking lot of a shopping center when defendant ran up to them. Defendant asked the officers to help him enforce a court order. He was agitated and he was unable to stand still after being told to do so, so Officer McMahon pat-searched him. As the officer was speaking to defendant, he began to suspect that defendant was under the influence of a controlled substance due to defendant’s agitation, inability to stand still, rapid speech, and fluttering eyelids.
Because Officer McMahon noticed the odor of marijuana, he asked defendant about it. Defendant admitted that he smokes marijuana and he indicated that he had a medical marijuana card. However, defendant’s symptoms were not consistent with being under the influence of marijuana. The officer had defendant walk over to another patrol car and perform a “Rhomberg test, ” where defendant had to estimate the passage of 30 seconds. The officer then checked defendant’s pulse and pupil dilation. Based on his observations and his training and experience, the officer concluded that defendant was under the influence of a stimulant.
Defendant’s car was parked in the parking lot. Officer McMahon had another officer search the car. That officer found 14 pills in a Ziploc baggie, and marijuana, inside the car. Defendant said that the pills were Vicodin, and the officers confirmed this by calling poison control. No labeled pill bottle was found in the car and defendant did not produce a prescription. Officer McMahon arrested defendant and transported him to San Jose’s preprocessing center.
Defendant made a series of statements while being transported, which Officer McMahon recorded. A CD copy of defendant’s recorded statements was played for the jury. Defendant stated in part: “I bet you if I didn’t have those... vicodins you wouldn’t have been able to take me to jail cuz I had nothing... wrong with me.... It’s just my... luck that they were still there.” When the officer told defendant that he was also going to be charged with being under the influence of a controlled substance, defendant said: “They are vicodin. Sir, if they are vicodin, I was on vicodin, how am I getting charged with a controlled substance for that?”
After a urine sample was obtained from defendant at the preprocessing center, and defendant waived his Miranda rights, Officer McMahon interviewed him and recorded the interview. A CD copy of the recorded interview was played for the jury. During the interview, defendant said that he was trying to pick up his daughters for a visitation when the mother of his daughters called the police. “I just want to get my daughters, and so I forgot I had vicodins in there, I know I have marijuana, I have my cannabis card. I wasn’t worried about that, (inaudible) that’s why I approached you guys first. After I said Hey can I get your help, ... but unfortunately you approached me like that, and like hey, hey what’s going on, searched me right away (inaudible)... searched my car (inaudible)... my vicodin in there from like two three months ago.” Defendant asked if the urine sample “[will] tell you if I was under the influence right then and there or if it’s just in my system. [¶]... [¶] From like a couple days ago, and it’s still in my system.” He said that “[a] couple days ago, ” “I did a line of some coke. That’s what I did, a couple days ago. So, it might probably be in my system still. But I wasn’t on anything when you approached me. That’s how I am if you haven’t noticed my personality.” “I had [the Vicodin] because I use to, like I told you, take them twice a day, and I just threw them in there, and I had them in that bag and I threw them in the side door I didn’t carry them in the container[.] [¶]... [¶] Cuz the container would bother me in my pocket....” “I had to stop taking them. That’s why there was so much there.” “I’ve used LSD, mushrooms, cocaine, weed, triple C’s, Ecstasy, I’ve used a lot of drugs before when I was younger, I don’t use anymore drugs any more, beside marijuana. I did that line a couple days ago ‘cause I was... I was trippin’ out.”
Miranda v. Arizona (1966) 384 U.S. 436.
The parties stipulated that “the Ziploc bag containing 14 pills that was discovered in Mr. Salazar’s car on January 15, 2010, was tested by a criminalist according to the established scientific procedures, and it was found to be hydrocodone bitartrate, an equivalent of Vicodin. [¶] In addition, a biological urine sample was taken from Mr. Salazar and was tested according to the established scientific procedures by a toxicologist, and it tested positive for BE, benzoylecgonine.”
Trevor Gillis, a criminalist with the Santa Clara County Crime Laboratory, testified as an expert in the effects of stimulants on the human body and on solid substance analysis of controlled substances. He testified that cocaine is a stimulant. It causes an increased heart rate, increased breathing, increased body temperature, rapid speech, agitation, paranoia, racing thought patterns, and fine muscle tremors. A person can feel the intoxicating effects of cocaine for between a few minutes to an hour, and cocaine is detectible in a urine sample for six to 12 hours. The presence of BE in a urine sample indicates that cocaine had been ingested sometime within the previous 72 hours of when the sample was taken.
Gillis conducted the solid substance analysis of the pills in this case. The pills each contained five milligrams of hydrocodone bitartrate and five milligrams of acetaminophen, which is the combination in a generic form of Vicodin. Vicodin is a controlled substance used generally for pain control. It is a depressant; it slows down breathing and heart rate, it can cause somebody to be cold and clammy and sleepy, and it can cause very constricted pupils.
The Defense Case
Defendant’s friend Nicole Marie Hessling testified that she sustained a broken back in a car accident on September 30, 2009. A doctor prescribed a generic form of Vicodin for her pain. After purchasing the Vicodin, she put the pills in a plastic bag and always carried about 15 to 20 pills with her. Defendant allowed her to borrow his car in December 2009 and January 2010, and she left a bag of Vicodin in the driver’s side door of the car when she returned the car to him on January 3rd or 4th.
Defendant testified on his own behalf that he had just left work when the incident at issue happened. He contacted his former girlfriend in an attempt to see his daughters and then headed for her apartment. When he saw his girlfriend drive into a parking lot where there were police officers, he followed her. He got out of his car and contacted the officers. Officer McMahon immediately told him to put his hands on his head and then searched him. The officer told him that he was high on marijuana. When defendant said that he had a cannabis card, the officer said that he was under the influence of a stimulant. The officer asked him questions and moved him. He was handcuffed and placed in the back of a patrol car and his car was searched. He did not know that the Vicodin pills were in his car, but he told the officer that the pills were his because he was not sure if they belonged to Hessling. He admitted that he had used a line of cocaine two days before because he was not feeling the intoxicating effects of the cocaine at that time and he was trying to be completely honest. He did not remember what time he used the cocaine, but the party he had attended started at 4:00 p.m., and his use was at “some time throughout that evening.” He also truthfully said that he had tried several other drugs when he was a teenager. However, he was lying when he said that the Vicodin pills were his and that they had been in his car for two or three months. He has never taken Vicodin.
Verdicts and Sentencing
On June 25, 2010, the court dismissed count 3 (§ 11357, subd. (b); possession of marijuana) on the motion of the prosecutor, and the jury was not instructed on that count. The jury found defendant guilty as charged in count 1 (§ 11350, subd. (a); possession of a controlled substance) and count 2 (§ 11550, subd. (a); misdemeanor being under the influence of a controlled substance).
On July 1, 2010, the court suspended imposition of sentence and placed defendant on Proposition 36 probation for two years. As conditions of probation, the court ordered that defendant was “not to own or possess any firearms or ammunition for the rest of your life, ” and that he pay various fines and fees: “The Court imposes a restitution fine of $220 pursuant to 1202.4 of the Penal Code and imposes and suspends an equal amount pursuant to 1202.44 of the Penal Code. Criminal Justice Fee... [¶]... [¶]... $129.75 to the City of San Jose. Laboratory Analysis Fee, $100. Drug Program Fee, $150. Court Security Fee, $60. Criminal Conviction Assessment, $60. [¶]... [¶] AIDS Education Fee, $70. Penalty Assessment is waived.” The court asked defendant if he understood and agreed to the terms and conditions stated and defendant replied, “Okay.” The court separately imposed additional fees that it stated were not conditions of probation: “Supervision fees with the probation department of $64 per month. And... attorney fees of $4,000 for the trial.” The court asked defendant if he wanted to have a hearing on his “ability to pay, ” and defendant said that he did. The court then set the matter for a hearing.
DISCUSSION
Defendant’s Statements to Police
The prosecutor moved in limine for admission pursuant to Evidence Code section 1220 of any statements defendant made “at the scene and in the patrol vehicle.” Defendant challenged the admissibility of all his statements under Miranda. Following a hearing, the court granted the prosecutor’s motion. However, during the trial, just prior to the playing of the CD of defendant’s recorded statements at the preprocessing center, defendant asked that the portion of his statement where he refers to drugs other than cocaine and marijuana be “taken out.” The court asked the prosecutor, “what’s the relevance of the other drugs being mentioned[?]” The prosecutor responded that “the other drugs are relevant because it goes to his knowledge that Vicodin is a controlled substance. One of these drugs, Triple C, actually [is] a prescription type of drug so it could be circumstantially used to prove that knowledge element.” “Beyond that, defense counsel has indicated that he plans to call the defendant to testify. If he were called to testify, I would ask this question – I think I would be able to ask this question based on the fact that this is a narcotics case, this is relevant. And if the defendant were to not answer consistently with the recording, then obviously I would be able to use this portion for impeachment purposes. [¶] So on balance, when you take into consideration the probative value – and I believe it outweighs any prejudicial effect that could occur. I would be fine with a limiting instruction so that would ameliorate any prejudicial effect if the defense thinks that’s necessary.”
“Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.” (Evid. Code, § 1220.)
Defendant argued that the drugs he mentioned in his statements to the police were not relevant “to any element that’s charged in this case. It’s completely irrelevant to the facts, the evidence, and the law in this case.... [¶] The prosecution wants this evidence to be in so that it can allow the jury to infer that he is a drug user and that he has or potentially still does use a myriad of drugs. But it is inflammatory, it would confuse the jury, and it would greatly prejudice” defendant.
The court ruled: “I’m going to allow this to be played, but I’m going to give a limiting instruction to the jury that this portion of it can only be considered by them on the issue of his credibility, and not for any purpose, and specifically not to – that if they believe that he used drugs before when he was younger, that that has – that that means or can be used to suggest that he used drugs on the day in question.” The court then suggested the parties “work together to draft the limiting instruction.”
Immediately following the playing of the CD of defendant’s statements at the preprocessing center, the court instructed the jury: “Ladies and Gentlemen, before we go on, in the course of this statement, there was a statement by the defendant relating to use of other drugs in the past aside from the cocaine with which he is charged with in this count 2. That evidence is not to be considered by you on any issue other than knowledge, which will come up when I read you the instructions. [¶] Specifically, you are not to consider that evidence as suggesting or inferring from that, if it’s true, that that somehow means that he’s likely to or probably used drugs on the date in question in count 2.” After the parties had rested, the court instructed the jury pursuant to CALCRIM No. 303 that, “During trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.”
Defendant now contends that the court committed prejudicial error and violated his due process rights because admission of evidence of his prior drug use was irrelevant and unduly prejudicial. He argues that his admission that “he used LSD, mushrooms, cocaine, marijuana, Triple C, and Ecstasy when he was younger was irrelevant to whether he possessed or used drugs on the date in question.” “[U]se of drugs other than cocaine and Vicodin shed little, if any light, on a person[’]s knowledge of those two substances.” Defendant also contends that the court prejudicially erred in allowing the prosecutor to cross-examine defendant about his prior drug use. “The court abused its discretion by accepting the prosecution’s logic that prior drug use would shed light on [defendant’s] credibility. In fact, the only effect of this testimony was to support the argument that because he used drugs before, he used drugs on the date in question.”
The Attorney General contends that the court did not abuse its discretion in admitting evidence that defendant had previously used other drugs to prove his knowledge of the narcotic nature of Vicodin and to impeach his exculpatory statements. The Attorney General further contends that any error was harmless because defendant “admitted knowing that the Vicodin was in the car, made statements acknowledging that it was his, and further admitted to officers that he had used cocaine two days before his arrest.”
The fact that defendant had used cocaine or other drugs in the past, by itself, is not probative of his conduct on the occasion in question. (Evid. Code, §1101, subd. (a); People v. Humphries (1986) 185 Cal.App.3d 1315, 1337.) In addition, evidence of the defendant’s prior drug use is inadmissible where it “ ‘tends only remotely or to an insignificant degree to prove a material fact in the case....’ ” (People v. Cardenas (1982) 31 Cal.3d 897, 906.) On the other hand, evidence of prior drug use is admissible where it is relevant to prove a motive for possession of narcotics or the defendant’s knowledge of the narcotic nature of the substance involved. (People v. Morales (1979) 88 Cal.App.3d 259, 264; People v. Perez (1974) 42 Cal.App.3d 760, 764.)
“In prosecutions for drug offenses, evidence of prior drug use and prior drug convictions is generally admissible under Evidence Code section 1101, subdivision (b), to establish that the drugs were possessed for sale rather than for personal use and to prove knowledge of the narcotic nature of the drugs. [Citation.]” (People v. Williams (2009) 170 Cal.App.4th 587, 607 (Williams); see also People v. Pijal (1973) 33 Cal.App.3d 682, 687, 690-691 [evidence of prior drug offenses is admissible to show the defendant’s “guilty knowledge”].) “[T]he cases which have upheld admission of evidence of an accused drug addiction [or use] involved crimes where obtaining narcotics was the direct object of the crime or where a violation of the Health and Safety Code was charged.” (People v. Holt (1984) 37 Cal.3d 436, 450.) For example, in Williams, the defendant was convicted of possession of methamphetamine (§ 11377, subd. (a)) among other crimes. (Williams, supra, 170 Cal.App.4th at pp. 595, 605.) On appeal, the defendant argued that the trial court erred in admitting evidence of numerous uncharged crimes, including evidence that officers found four pieces of rock cocaine in this home in 1991 and that he was subsequently convicted in 1993 for possessing a controlled substance (§ 11351.5). (Williams, supra, at p. 598.) The Court of Appeal concluded that the incidents were “relevant to establishing defendant’s knowledge, among other things.” (Id. at p. 607.)
“Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, ... intent, ... knowledge...) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).)
“Because evidence of other crimes may be highly inflammatory, the admission of such evidence ‘ “ ‘must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.’ ” ’ [Citations.] Under Evidence Code section 352, the probative value of a defendant’s prior acts must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citations.] ‘We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code section 1101 and 352.’ [Citation.]” (People v. Davis (2009) 46 Cal.4th 539, 602; see also People v. Ewoldt (1994) 7 Cal.4th 380, 404 [uncharged offenses have substantial prejudicial effect and may be admitted only if they have substantial probative value].)
In this case, defendant appeared to Officer McMahon to be under the influence of a stimulant. Defendant told Officer McMahon that he uses marijuana and that he had a medical marijuana card. He also stated that the Vicodin found in his car was his. However, defendant’s symptoms were not consistent with having used either Vicodin or marijuana. After defendant gave a urine sample, he asked whether it would show what drugs were in his system, rather than just those drugs he had just used. He then denied recently using any drugs other than marijuana with the exception of cocaine, which he had used two days before. The evidence that defendant also admitted having used cocaine and other drugs when he “was younger” was relevant to establish that defendant knew of the controlled nature of the Vicodin found in his car and the cocaine he admitted having used. (Williams, supra, 170 Cal.App.4th at p. 607.) The jury was instructed as to the limited purpose for which defendant’s statements about his prior drug use could be used and we must presume that the jury understood and followed the instructions. (People v. Gray (2005) 37 Cal.4th 168, 231; Williams, supra, at p. 607.) As the evidence that defendant admitted having used other drugs was “relevant to establishing defendant’s knowledge, ” and the trial court instructed the jury on the limited purpose for which the evidence could be used, the trial court did not abuse its discretion in admitting the evidence. (Williams, supra, at p. 607.)
Instructions Pursuant to Section 11550
The court instructed the jury on count 2 pursuant to CALCRIM No. 2400 as follows: “The defendant is charged in count 2 with using or being under the influence of cocaine, a controlled substance, in violation of Health and Safety Code section 11550. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully used cocaine, a controlled substance, a short time before his arrest; [¶] or 2. The defendant was willfully under the influence of cocaine, a controlled substance, when he was arrested. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. Someone is under the influence of a controlled substance if that person has taken or used a controlled substance that has appreciably affected the person’s nervous system, brain, or muscles, or has created in the person a detectable abnormal mental or physical condition. [¶] Use within 48 hours prior to arrest is sufficient to prove a short time before his arrest as used in this instruction.” (Italics added.)
Defendant had objected to the above italicized language for four reasons. He argued that “because it’s not the law, it should not be used in the instruction.” He argued that, “because the expert hasn’t raised that number and it hasn’t come up anywhere else, the defense believes that it is tantamount to a directed verdict. And therefore, [a] due process violation effecting our ability to mount a defense.” He argued that the use note for the instruction cited several cases “regarding this subject of defining a short time period. All of them refer to heroin, not cocaine, which is the substance at issue in this case.” Finally, while referring specifically to People v. Jones (1987) 189 Cal.App.3d 398 (Jones), defendant argued that the case stood for the proposition that “the evidence in that case was sufficient to support a conviction, but not necessarily that that evidence is what should be used in order to secure a conviction.”
The court ruled that “nothing has been shown to me in the 20 plus years since that case was decided that indicates that People v. Jones is incorrect on this issue, or that it should be limited to a heroin case, or that the statements and the dicta, if it’s dicta – and it may – probably is dicta, but it’s kind of dicta, and I think it’s persuasive in this case.... [¶]... [¶] In the current case counsel objects to it, but I have not been persuaded that there should be a distinction on this point because it involves heroin versus cocaine, given the fact that Mr. Gillis testified that the sample of the defendant’s urine contained BE, which is the metabolite of cocaine, and that that metabolite, similar to the metabolite of heroin, is in the urine for about 72 hours, and indicates a use within that time. And he also indicated that the BE doesn’t come from anything else other than cocaine.”
Defendant now contends that the italicized portion of the instruction was a misstatement of the law and that it created an improper presumption tantamount to a directed verdict. He argues that “the court did not use the rule established in Jones that use means current continuing use. Instead, the court misstated the law of ‘current continuing use, ’ by stating ‘Use within 48 hours prior to arrest is sufficient to prove a short time before his arrest as used in this instruction[.]’ By setting a firm timetable for the jury to make its determination the court misstated the law.” He further argues that the instruction “created a mandatory presumption that [defendant] was guilty because he admitted using cocaine with 48 hours of his arrest.”
The Attorney General agrees with defendant that the instruction as given “misstate[s] the law, ” but argues that it does so for different reasons than defendant argues it does. “First, the statute was drafted in the disjunctive, requiring either proof of use or proof of being under the influence. [Defendant] would conflate the two, requiring proof that use immediately precedes the arrest.” “Furthermore, rather than creating a ‘presumption tantamount to a directed verdict’ as [defendant] contends, the problem with the additional language is that it puts an artificial time limit on conduct that is not supported by the language of the statute.” “However, any error was harmless.... [A]ny error inured to [defendant’s] benefit... because it added to the People’s burden rather than eliminated anything.”
It is illegal to use cocaine. (§ 11550.) Only present or recent use of cocaine, however, may be prosecuted. (People v. Velasquez (1976) 54 Cal.App.3d 695, 700 (Velasquez).) As noted, the court expressly told the jury that to convict, the prosecutor had to prove that defendant used cocaine “a short time before” his arrest. The court also instructed that use within 48 hours before arrest can constitute “a short time before” the arrest. The court’s instruction implied that defendant’s use of cocaine more than 48 hours before he was tested cannot constitute present or recent use. This implication that 48 hours marks a bright line that divides recent or present use from past use is not supported by Jones, but, in our view, it afforded defendant more protection from a guilty verdict than is legally required by Jones.
In Velasquez, the defendant claimed the evidence was insufficient to support his conviction for using heroin. (Velasquez, supra, 54 Cal.App.3d at pp. 697, 699.) There, the defendant admitted that he had been a heroin user in the past. At the time of his arrest, there were old and new needle marks on his arms, some of which, an expert opined, were from five to seven days old. The defendant falsely claimed that he had not used heroin for several months. (Ibid.) In reversing the conviction, the appellate court stated, “The ‘use’ proscribed by section 11550 of the Health and Safety Code is a current use, not a use in the past. Even though defendant lied in claiming to have been free of narcotics for several months, the People’s own testimony supports no usage closer than the five-to-seven-day period testified to by their own expert. We conclude that, while usage no more distant than that might support a finding of danger to become (again) addicted, it does not support a finding of current addiction and use.” (Velasquez, supra, 54 Cal.App.3d at p. 700.)
In People v. Gutierrez (1977) 72 Cal.App.3d 397 (Gutierrez), the court held that a police officer’s observation of the defendant’s withdrawal symptoms did not provide probable cause to arrest him under section 11550 in the absence of evidence that he was also under the influence at the time. (Id. at p. 402.)
In Jones, the defendant claimed there was insufficient evidence to support his conviction under section 11550 for using heroin. (Jones, supra, 189 Cal.App.3d at p. 403.) The record revealed that a police officer observed that the defendant’s pupils were dilated and his eyelids were drooping, which the officer believed reflected symptoms of use, not withdrawal. The defendant also had a number of injection sites, one of which appeared to be between one and three days old. A test of the defendant’s urine sample revealed the presence of a heroin metabolite, which, according to an expert, reflected use within 24 to 72 hours of when the sample was taken, but probably closer to 24 hours. The defendant admitted using heroin within the previous two or three days and that at the time of his arrest he did not believe he was going through withdrawal. (Id. at p. 402.)
On appeal, the defendant argued that his use of heroin one to three days before the test did not constitute “current use” as proscribed under section 11550. (Jones, supra, 189 Cal.App.3d at p. 403.) In rejecting his argument, the appellate court explained that “[b]y punishing individuals found to be under the influence or users of certain dangerous drugs, section 11550 was intended by the Legislature to protect the individual and society from the adverse effects of those substances. [Citation.] Thus, the object of the statute is to proscribe a use of narcotics that is an activating part of the process of addiction, whatever may be the stage of that process at the time of their use. [Citation.]” (Id. at p. 404.)
Citing Velasquez and Gutierrez, the Jones court stated: “If a distinction is to be made in the cases applying section 11550, it is as follows: Current continuing use of narcotics is to be distinguished from a past, discontinued use. Thus, withdrawal from the use of narcotics is not a crime; it is in fact the direct result of discontinuing the crime of use. [Citation.] By contrast, ‘current use’ should be construed in light of the above noted purpose of the statute to protect the individual and society from the adverse effects of illegal drug use. [Citation.] Thus, if the user is supporting his habit through illegal means (i.e., his criminal activity is directly related to his addiction), then his ‘use’ is current and proscribed by section 11550. [Citation.] [¶] The rationale for these precepts is that it is in the public interest to encourage users of illegal drugs to seek rehabilitation. If use sometime in the past was made punishable, such a policy would not only discourage users from seeking rehabilitation but punish those who have used in the past but in the meantime have become rehabilitated and ceased the use of drugs. We cannot believe that the Legislature could have intended that the courts construe section 11550 so as to arrive at such a result.” (Jones, supra, 189 Cal.App.3d at p. 405.)
Turning to the facts before it, the Jones court concluded that the evidence supported the conviction even if the jury believed the defendant used heroin 48 hours before his arrest. “[S]uch usage two days before arrest could clearly qualify for a finding of current use under the... statement in Velasquez to the effect that use less distant than five days prior to arrest might support a section 11550 conviction.” (Jones, supra, 189 Cal.App.3d at p. 406.)
In light of Velasquez and Jones, we question the use of instructional language that implies that there is a set number of hours after which evidence of use becomes past use. Moreover, neither case implies that use more than 48 hours before a test cannot constitute current use. Indeed, these cases suggest that evidence of use within five days before a test may support a finding of current use. Under the circumstances, any error in the trial court’s modification of the standard instruction was harmless. We agree with the Attorney General that the instruction as given limiting usage to 48 hours inured to defendant’s benefit because it added to the People’s burden.
Conditions of Probation
Defendant contests several conditions of his probation. He argues that the probation condition prohibiting him from ever owning or possessing a firearm or ammunition is unconstitutionally overbroad, and should be corrected to state that he is prohibited from owning or knowingly possessing a firearm or ammunition. He argues that it is improper to order that he pay the court security fee of $60, the $60 criminal conviction assessment, and the $129.75 criminal justice administration or booking fee, as conditions of probation, so the probation order should be corrected to state that the order to pay these fees is imposed as a separate order and not as a condition of probation. And, he argues that the $220 restitution fine and stayed probation revocation fine was unauthorized and should be reduced to $200 each.
The Attorney General has no objection to the modification of the probation condition prohibiting ownership or possession of a firearm or ammunition as defendant requests. The Attorney General agrees that the order of probation should be corrected to state that the ordered court security fee, the criminal conviction assessment, and the criminal justice administration fee are not imposed as conditions of probation. However, the Attorney General contends that the court could have properly imposed the $220 restitution fine and the $220 stayed probation revocation fine, and that defendant is precluded from raising any claim of error on appeal by failing to object below.
“[D]efendant, as a felon, has no constitutional right to bear arms. ([Pen. Code, ] § 12021; People v. Flores (2008) 169 Cal.App.4th 568, 573-577.)” (People v. Frieitas (2009) 179 Cal.App.4th 747, 751.) However, “the law has no legitimate interest in punishing an innocent citizen who has no knowledge of the presence of a firearm or ammunition.” (Id. at p. 752.) Accordingly, “it is appropriate to modify the probation condition to specify that defendant not [own or] knowingly possess the prohibited items.” (Ibid.)
“An order directing payment of collateral costs like the court security fee is... not enforceable as a probation condition but instead only as a separate money judgment in a civil action, and the order should thus be imposed as a separate order entered at judgment. [Citations.]” (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1403.) Accordingly, it is appropriate to “modify the judgment to delete [the order to pay such fees] as a condition of probation and clarify that [the order] is instead a separate order.” (Ibid.; see also People v. Flores, supra, 169 Cal.App.4th at p. 578.)
Penal Code section 1202.4 provides that, whenever someone is convicted of a crime, the court must impose a restitution fine. (Pen. Code, § 1202.4, subd. (a)(3)(A).) “The trial court shall impose the restitution fine ‘unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.’ ([Id., s]ubds. (b), (c).) In the absence of extraordinary reasons, a minimum fine of $200 is mandatory after a felony conviction ([id., ] subds. (b)(1), (c), (d)) ‘even in the absence of a crime victim.’ [Citation.] The sentencing court has discretion to impose a fine of up to $10,000 in light of all relevant factors. ‘Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required.’ ([Id., s]ubd. (d).)” (People v. Dickerson (2004) 122 Cal.App.4th 1374, 1379-1380, fns. omitted; see also People v. Gragg (1989) 216 Cal.App.3d 32, 46-47.) The statute recommends a formula for calculating the amount of the fine, using the statutory minimum as the base, factoring in the number of years of imprisonment ordered and number of counts of which the defendant is convicted. (Pen. Code, § 1202.4, subd. (b)(2).)
Penal Code section 1202.44, provides that, in all convictions in which the sentence includes a period of probation, “the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of section 1202.4.” This additional fine “shall become effective upon the revocation of probation....” (Pen. Code, § 1202.44.)
There is a statutory presumption that an “official duty has been regularly performed.” (Evid. Code, § 664.) The presumption operates only in the face of a silent record, so absent “any showing to the contrary, we must presume” that the court properly performed its duty. (People v. Moran (1970) 1 Cal.3d 755, 762) “As an aspect of the presumption that judicial duty is properly performed, we presume... that the court knows and applies the correct statutory and case law [citation]....” (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) The presumption applies to the trial court’s imposition of sentence. (See, e.g., People v. Mosley (1997) 53 Cal.App.4th 489, 496-497.)
In this case, the record is silent as to why the trial court imposed a restitution fine of $220, rather than the statutory minimum of $200. However, the court had discretion to order that amount (Pen. Code, § 1202.4, subd. (d)), and defendant failed to raise an objection below. “[A]ll ‘claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices’ raised for the first time on appeal are not subject to review. [Citations.]” (People v. Smith (2001) 24 Cal.4th 849, 852; People v. Scott (1994) 9 Cal.4th 331, 351-352.) Accordingly, we need not modify the amount of the restitution fine and probation revocation restitution fine ordered.
DISPOSITION
The judgment (order of probation) is ordered modified by: (1) modifying the probation condition that defendant is “not to own or possess any firearms or ammunition for the rest of your life” to state that defendant is “not to own or knowingly possess any firearms or ammunition for the rest of your life”; and (2) deleting the order to pay the criminal justice fee of $129.75, the court security fee of $60, and the criminal conviction assessment of $60, as conditions of probation, and imposing them as a separate order. As so modified, the judgment is affirmed.
WE CONCUR: MIHARA.J., LUCERO, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.