Opinion
H047211
05-28-2020
THE PEOPLE, Plaintiff and Respondent, v. ELIAS GABRIEL VALLE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 19CR003125)
Appellant Elias Gabriel Valle pleaded no contest to carrying a concealed firearm in a vehicle and was placed on probation for three years, subject to a number of terms and conditions. On appeal, Valle challenges as invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) the probation conditions imposed by the trial court relating to gang affiliation and marijuana and alcohol. In addition, he contends that a condition addressing his use of medical marijuana has no legitimate purpose under Penal Code section 1203.1, subdivision (j). We conclude the trial court did not abuse its discretion in imposing the challenged conditions, although we correct the medical marijuana condition to conform to the trial court's sentencing order. As modified, the judgment is affirmed.
Unspecified statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL BACKGROUND
A. Offense and Plea of No Contest
On March 23, 2019, Salinas Police Department officers conducted a traffic stop of a car Valle was driving and located under the driver's seat a 25-caliber semiautomatic firearm with five rounds in the magazine. The passenger in the vehicle told the police they were on their way to Valle's residence "to pick up some 'tree,' or marijuana." A records check revealed Valle had a prior arrest in Santa Cruz County for possession of a firearm with a gang enhancement.
Unless otherwise indicated, all dates occurred in 2019.
On June 7, the Monterey County District Attorney filed an information charging one count of carrying a concealed firearm (§ 25400, subd. (a)(1)) with allegations that he was not the registered owner of the gun (§ 25400, subd. (c)(6)) and had committed the crime while released from custody on bail or his own recognizance in a pending criminal case (§ 12022.1, subd. (b)).
On June 13, Valle pleaded no contest in Monterey County Superior Court to carrying a concealed firearm in a vehicle and admitted the allegation that he was not the registered owner of the firearm.
B. Probation Report
Prior to the sentencing hearing on July 18, the trial court received a probation report that recommended that Valle be given a probationary sentence with conditions. The probation report noted that Valle was 20 years old, did not complete high school, and was unemployed at the time of his arrest. Valle participated in the probation interview, although the report indicated that Valle did not make a statement regarding the circumstances of the offense.
Regarding criminal history, the probation report noted that Valle had no criminal convictions and one prior arrest in Santa Cruz County. The report stated Valle "was arrested on August 1, 2018, in Santa Cruz County on charges of [sections] 186.22(a) PC, 186.22(b)(1) PC, and 25850(c)(2) PC." The report noted that Valle had pleaded not guilty and subsequently failed to appear for a preliminary hearing on March 28, at which time his bail bond was forfeited.
With respect to "Peer Associations," the probation report stated: "[t]he defendant denies any gang involvement. Jail records did not indicate any gang association and he is not being housed in a gang housing unit. [¶] The defendant said he was arrested for possession of a weapon with a gang enhancement in Watsonville but is not gang affiliated. He said the gang enhancement was solely because the person he was with is a gang member."
Regarding the issue of substance abuse, the probation report generally noted that Valle disclosed that he had tried alcohol a few times and that he had used marijuana for medicinal purposes.
In the evaluation section, the probation report stated that Valle had taken responsibility for the loaded firearm under the driver's seat, but he "had no explanation as to why he had it with him in his vehicle," in the face of his claim that he "used it at home for protection." The report stated, "[w]hile [Valle] denies being a gang member and denies any substance abuse, both are in question in light of his arrests and social history." The report further questioned Valle's "decision making in both [] friendships and criminal behavior."
The report recommended that Valle be placed on formal probation with several conditions of supervision, including prohibiting Valle from using alcohol or marijuana and associating with gang members.
C. Sentencing Hearing
At the sentencing hearing on July 18, Valle argued that the trial court should not impose the drug and alcohol conditions because "there is no nexus with regard to those. [Defendant's] level of need regarding substance abuse is considered low. This is not a substance-abuse-related offense." Addressing the gang conditions, Valle requested that the trial court strike portions of those conditions "with regard to gang affiliation or gang terms" because there was no indication that the offense was gang-related and Valle was not housed with other gang members at the jail.
The trial court and defense counsel engaged in the following colloquy:
"[The court]: But, Counsel, your client was arrested in possession of another firearm. And he was with a gang member, and he was out on bail on that offense when he committed this offense, correct?
"[Defense counsel]: Your Honor, those are charges that are alleged. He has not been convicted of them.
"[The court]: That is your client's own statement.
"[Defense counsel]: That he's - that he has those charges, yes."
Following further argument, the trial court asked the People if they had any final comments. The People responded, "Just to address the gang terms. I did show [defense counsel] the open Santa Cruz case involving the defendant with Watsonville Norteños possessing firearms on a live video. This defendant is clearly shown flashing a four while holding a handgun. I did show [defense counsel] that screenshot. So the People do believe gang terms are rationally related to his success on probation here." Valle did not object to this statement. The trial court did not mention this information during the sentencing hearing and did not explicitly address Valle's objection to the drug and alcohol conditions.
The trial court suspended imposition of sentence and placed Valle on three years of formal probation. The trial court imposed four conditions related to marijuana and alcohol (collectively, the marijuana and alcohol conditions) that generally prohibited Valle from using alcohol and marijuana and required him to submit to field sobriety testing at the request of probation, participate in counseling or a substance abuse program deemed necessary by probation, and seek court approval before obtaining a prescription for marijuana.
In addition, the trial court imposed two gang conditions that prohibited Valle from associating with gang members and from possessing or wearing items associated with gang membership or affiliation. In particular, the trial court stated, "You're not to associate with any individuals who are gang members." The second condition imposed related to gangs was: "You're not to possess, wear, use or display any item associated with membership or affiliation in any gang of any type of paraphernalia, including the colors red or blue. In this county the Court finds that gang members can sometimes wear both colors depending on purposes of subterfuge or allegiance." We refer to these two conditions as the "gang conditions."
II. DISCUSSION
Valle contends primarily that the gang conditions and marijuana and alcohol conditions lack a reasonable nexus to his future criminality under Lent and therefore are invalid. He further argues that the trial court violated his due process rights by improperly considering at sentencing his prior arrest in Santa Cruz County. In the alternative, Valle contends that even if the medical marijuana condition is valid under Lent, it is generally invalid under section 1203.1, subdivision (j), because it serves no legitimate purpose and impermissibly restricts his access to medical treatment.
Valle entered into a written plea agreement and signed a waiver of rights form. The plea agreement contained a limited waiver of appellate rights under which Valle waived only his right to appeal orders issued before the date he signed the form. As Valle did not waive his right to appeal orders made by the trial court after that date, including the sentencing orders at issue in this appeal, we address the merits of his contentions.
A. General Legal Principles
Pursuant to section 1203.1, subdivision (j), the trial court has broad discretion to impose probation conditions to advance a number of legitimate purposes, including public safety and the rehabilitation of the probationer. (See People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) We review probation conditions for abuse of discretion. (In re Ricardo P. (2019) 7 Cal.5th 1113, 1118 (Ricardo P.).) "Specifically, we review a probation condition 'for an indication that the condition is 'arbitrary or capricious' or otherwise exceeds the bounds of reason under the circumstances.' " (Ibid.) Under the familiar Lent test, a reviewing court may not strike a probation condition as unreasonable 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." ' " (Ibid.; Lent, supra, 15 Cal.3d at p. 486.)
In Ricardo P., the California Supreme Court focused its analysis on the third prong of the Lent test—whether the condition was reasonably related to future criminality. (Ricardo P., supra, 7 Cal.5th at p. 1119.) The California Supreme Court held that the third Lent prong requires a "degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Id. at p. 1122.) It stated that a court "imposing such a condition must consider whether, in light of 'the facts and circumstances in each case' [citation], the burdens imposed by the condition are proportional to achieving some legitimate end of probation." (Id. at p. 1127.)
We turn now to whether the gang conditions and marijuana and alcohol conditions imposed on Valle are unreasonable based on the standards articulated by the California Supreme Court in Lent and Ricardo P.
B. Analysis
1. Gang Conditions
Valle asserts the gang conditions are invalid under Lent because the record is devoid of any basis for them. He further contends the trial court improperly relied on his separate offense in Santa Cruz County that involved a gang enhancement and argues the court violated his due process rights by considering this unadjudicated offense in his sentencing for the Monterey County offense.
The parties do not dispute that the gang conditions satisfy the first two prongs of the Lent test, and we agree. The conditions have no relationship to the felony offense to which Valle pleaded no contest in the trial court. In addition, the conditions relate to conduct that is not in itself inherently criminal, that is Valle's association with gangs or wearing of gang-associated paraphernalia. (See People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.) Thus, as in Ricardo P., the issue in this appeal turns on the third prong of the Lent test: whether the condition " ' "requires or forbids conduct which is not reasonably related to future criminality." ' " (Ricardo P., supra, 7 Cal.5th at p. 1119.)
We conclude that the gang conditions are reasonably related to Valle's future criminality. In Ricardo P., the California Supreme Court reaffirmed prior case law "that 'conditions of probation aimed at rehabilitating the offender need not be so strictly tied to the offender's precise crime' [citation] so long as they are 'reasonably directed at curbing [the defendant's] future criminality' [citation]. For example, courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. (People v. Lopez (1998) 66 Cal.App.4th 615, 623-625 [upholding condition that defendant avoid gang involvement].)" (Ricardo P., supra, 7 Cal.5th at p. 1122.)
The California Supreme Court also cautioned, however, that "Lent's third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality" and discussed with approval People v. Brandão (2012) 210 Cal.App.4th 568 (Brandão)), a prior decision by a panel of this court that struck a gang condition. (Ricardo P., supra, 7 Cal.5th 1113 at pp. 1121-1122.) In Brandão, "the defendant, who had been convicted of possessing methamphetamine, challenged a 'no-gang-contact' probation condition. [Citation.] 'Nothing in the record,' the Brandão court noted, 'indicates that defendant has any gang affiliations or other gang-related history, nor did the underlying offense have anything to do with a gang.' [Citation.] The court concluded that the no-gang-contact probation condition was not 'reasonably related to a risk that defendant will reoffend.' . . . 'To be sure,' the court acknowledged, 'making contact with members of criminal street gangs could be deleterious to defendant,' but Lent does not 'authoriz[e] conditions to shield probationers from exposure to people and circumstances that are less than ideal but are nonetheless unrelated to defendant's current or prior offenses or any factor suggesting a risk of future criminal conduct.' " (Ricardo P., at p. 1121, italics omitted.)
Applying these principles here, the record supports the trial court's implicit determination that the gang condition is reasonably related to prevent future criminality by Valle. The probation report indicated that Valle had been arrested less than one year earlier with a gang member. Based on this information, which came from Valle himself, there was evidence that Valle associated with at least one gang member. Valle did not object to the facts contained in the probation officer's report, including the description of his Santa Cruz County arrest that included a gang enhancement. Valle is a young adult who was 20 years old at sentencing and was arrested for two crimes involving a firearm that are typical of gang crimes. (See also In re Frankie J. (1988) 198 Cal.App.3d 1149, 1154, fn. 4, disapproved of on other grounds by In re Sade C. (1996) 13 Cal.4th 952.) Therefore, the reasonableness of the condition is based on "more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (Ricardo P., supra, 7 Cal.5th at p. 1121.)
On appeal, Valle argues that his case is "indistinguishable" from Brandão. We do not agree. Brandão is factually distinguishable as the defendant in that case had no ties to any gang. The court in Brandão further emphasized its holding was a "narrow" one: "In our view, a no-gang-contact probation condition cannot be imposed on defendant here, given that the record divulges (1) no ties between defendant and any criminal street gang, (2) no such ties involving any member of defendant's family, and (3) no criminal history showing or strongly suggesting a gang tie." (Brandão, supra, 210 Cal.App.4th at p. 576.) By contrast, the record here contains at least one direct example of his association with a gang member which resulted in a criminal charge in Santa Cruz County.
Furthermore, we reject Valle's contention that the trial court improperly relied on his separate arrest in Santa Cruz County that involved a gang enhancement and violated his due process rights by considering this unadjudicated offense when crafting appropriate probation conditions. Under long-standing precedent, the information considered by a sentencing judge may include "raw arrest data and information about arrests for which no convictions were obtained, so long as the information is accurate and reliable, and the judge imposing sentence is not misled into believing a mere arrest to be an actual conviction." (People v. Gragg (1989) 216 Cal.App.3d 32, 43; Cal. Rules of Court, rule 4.411.5(a)(3).)
The record does not support Valle's contention that the trial court was misled into believing Valle had been convicted in the Santa Cruz County case. The probation report detailed facts about the arrest, including the date of his arrest in August 2018, the charges for which he was arrested, and the docket number of the pending Santa Cruz County case and the not guilty plea he entered. Moreover, as Valle points out, defense counsel told the trial court at sentencing that Valle had not yet been convicted of the charges in Santa Cruz County. The prosecution reaffirmed during the sentencing hearing that the case in Santa Cruz County was still "open."
Valle further contends that the trial court violated his federal due process rights by impermissibly considering Valle's unadjudicated Santa Cruz County case that included a charge with a gang enhancement. Valle also emphasizes the prosecutor's comment about the video and points out that the prosecutor's statements are "uncorroborated." The California Supreme Court has discussed federal precedent in the context of probation and noted that federal law "does not require the same procedural safeguards at probation hearings as in the case of a trial on the issue of guilt," but that "an applicant for probation is nevertheless entitled to relief on due process grounds if the hearing procedures are fundamentally unfair." (People v. Peterson (1973) 9 Cal.3d 717, 726 (Peterson).)
Valle specifically cites two federal cases, United States v. Weston (9th Cir. 1971) 448 F.2d 626 and United States v. Juwa (2d Cir. 2007) 508 F.3d 694, as persuasive authority for his contention that the trial court violated his process rights. In Weston, multiple levels of hearsay from an informant contained in a presentence report implicated the defendant as the chief supplier of heroin in a geographic area. (Weston, at p. 628.) The trial court relied on this information in sentencing. (Ibid.) The Ninth Circuit Court of Appeals reversed the trial court's judgment, concluding that "a sentence cannot be predicated on information of so little value as that here involved." (Id. at p. 634.) The Ninth Circuit in Weston further noted that the defendant had denied the charges and objected to the judge's consideration of the statements during sentencing. (Id. at p. 631.) In Juwa, the Second Circuit vacated and remanded a trial court's judgment after the trial court impermissibly concluded that the defendant had committed the criminal acts charged in an indictment during sentencing. (Juwa, at pp. 701-702.)
Neither Weston nor Juwa assists Valle in light of the particular circumstances here. The statement in the probation report that Valle was arrested with a gang member in Santa Cruz County came from Valle himself, not an informant, and did not contain multiple levels of hearsay, as in Weston. Regarding the prosecution's brief discussion of the video and screenshot at the hearing, the trial court did not appear to give it any weight. Rather, the record reflects, as summarized in the earlier colloquy recited above, the trial court's expressed focus was centered on the statement made by defendant that he was with a gang member when he was arrested in Santa Cruz County. Moreover, Valle did not object to the reference to the video and screenshot by the prosecutor. We are not persuaded the hearing procedures in this case were "fundamentally unfair." (Peterson, supra, 9 Cal.3d at p. 726.) We conclude the trial court did not abuse its discretion or violate Valle's due process rights in imposing the gang conditions.
2. Marijuana and Alcohol Conditions
Valle also challenges under Lent conditions relating to his use of substances that include the condition that he abstain from alcohol and marijuana during his probation, submit to chemical testing when requested by the probation officer, and participate in counseling or substance abuse that the probation officer deems necessary. He also challenges the condition that he obtain court approval for any use of marijuana for medical reasons. Before addressing his legal claims, we first summarize the evidence before the trial court of Valle's use of alcohol and marijuana.
a. Additional Factual Background
The probation report stated, "The defendant began drinking alcohol when he was 18 or 19 years old. He said he only tried alcohol a few times and did not care for it. [¶] The defendant obtained his medicinal marijuana when he was 18 years old. He said he uses the drug occasionally, approximately one time per week, for back pain. [¶] The defendant denies using or experimenting with any illegal substances." The report also noted that, according to Valle, his back pain stemmed from an athletic injury he suffered in high school and he "subsequently will have bouts of back pain that he treats with marijuana." There is no indication that Valle ever participated in drug or alcohol treatment. There is also no evidence that he has ever been formally diagnosed with any substance abuse disorder by a medical professional. Overall, the probation officer assessed his need relating to substance abuse as "low." (Capitalization omitted.) The probation report recommended Valle refrain from using alcohol and marijuana; submit to chemical testing when requested by the probation officer, and participate in counseling or a substance abuse program that the probation officer deems necessary.
Following the probation report's recommendation, the trial court imposed three conditions that prohibited Valle from using or possessing "alcohol, marijuana, intoxicants, or controlled substances without the prescription of a physician," required Valle to "submit to and complete any field sobriety tests or narcotic testing of [his] blood, breath or urine at the request of any probation or peace officer," and "to participate in any counseling or substance abuse program the probation officer deems necessary, including approved residential treatment."
Valle's briefing is largely focused on alcohol and marijuana, rather than other "intoxicants" or "controlled substances" without a prescription, which he is also prohibited from using. To the extent Valle challenges his use of other "controlled substances," that component of the condition pertains to illegal conduct and therefore is not invalid under Lent. (See Olguin, supra, 45 Cal.4th at pp. 379-380.)
In addition, at the sentencing hearing the trial court added a medical marijuana condition that was not included in the probation report's recommendations. The trial court stated the medical marijuana condition as follows: "You may not obtain a prescription for marijuana without first having a hearing in this court with admissible evidence. And I don't accept a boilerplate, photocopied form. But if your healthcare provider would like to come into court and tell me you need marijuana, I'd be happy to listen. Otherwise no marijuana."
b. Analysis
The parties do not dispute that marijuana and alcohol use conditions satisfy the first two prongs of the Lent test. As to the first condition, we agree that the conditions have no relationship to the felony offense to which Valle pleaded no contest in the trial court because there was no indication he was intoxicated when he committed the crime of carrying a concealed weapon in a vehicle. The Attorney General also concedes the second prong is satisfied, stating that "Lent's third prong" is "the sole factor at issue here." We accept this concession and therefore proceed to the third prong of the Lent test and whether the conditions are " ' "reasonably related to future criminality." ' " (Ricardo P., supra, 7 Cal.5th at p. 1119.)
We note that Valle turned 21 years old several months after his sentencing, and his purchase or consumption of alcohol before he turned 21 was therefore illegal. (See Bus. & Prof. Code, § 25658, subd. (b).) Thus, at least for part of the period of probation, the condition was valid because it addressed illegal conduct. The remainder of our Lent analysis focuses on the remaining term of probation after Valle turned 21 years old.
With respect to the third Lent factor, Valle essentially argues the conditions rely on abstract and hypothetical grounds for future criminality, as there is no evidence he was under the influence when he committed the crime at issue (carrying a concealed weapon in a vehicle), he has no prior convictions for alcohol or marijuana offenses, and there is no evidence that he has a history of substance abuse. The Attorney General notes that Valle was "apprehended in possession of a firearm and in the company of another person on his way to obtain marijuana from appellant's house," and that the trial court could "reasonably conclude, relying on the nature of the offense and recommendation by the probation department, that appellant should abstain from consuming substances that may alter his mental state, including alcohol or any controlled substance." The Attorney General further points out that the trial court could have concluded Valle's claim of "minimal" marijuana use for a medical condition was not credible based on his companion's statement that they were on the way to his house to get marijuana.
We agree with the Attorney General that the trial court's decision to impose the marijuana and alcohol conditions here was reasonable. (See People v. Malago (2017) 8 Cal.App.5th 1301 (Malago).) While Valle did not drink heavily, he admitted to using marijuana regularly, on a weekly basis. When Valle was arrested in Monterey County, he was unemployed and had not completed high school. He committed the Monterey County offense of driving with a concealed weapon while he was out on bail in the pending charge in Santa Cruz County. When arrested, his fellow passenger in the vehicle told the police Valle had picked him up and they were on their way to Valle's residence to get marijuana.
Despite Valle's statement to the contrary, the trial court could reasonably infer that Valle used marijuana habitually but not for medical reasons. We are not persuaded that there is no basis in the record to question Valle's credibility. For example, the probation officer's report suggests skepticism over Valle's statement he used the loaded firearm found under the driver's seat "at home for protection," given that the officer also notes that Valle "had no explanation as to why he had it with him in his vehicle." Moreover, despite that the probation report recommended prohibiting his use of marijuana, no evidence or argument was offered in the trial court to support Valle's claim that he had back pain, had consulted a doctor who recommended marijuana, or that he had a medical marijuana card. (See People v. Moret (2009) 180 Cal.App.4th 839, 848.) In short, the record supports a reasonable inference that, while crediting his statement that he used marijuana regularly, the trial court impliedly did not credit his statement that he used marijuana for legitimate medical reasons.
We may not reweigh the trial court's credibility findings. (People v. Sperling (2017) 12 Cal.App.5th 1094, 1099.) Based on the circumstances surrounding his offense, including that the impetus for the ill-fated vehicle trip appears to have been to retrieve marijuana, we can not conclude the condition that he abstain from marijuana is arbitrary. Even if a reasonable judge could have reached a different determination, the trial court's determination here does not exceed the bounds of reason. (Ricardo P., supra, 7 Cal.5th at p. 1118.)
In support of his argument challenging the imposition of the marijuana and alcohol conditions, Valle relies primarily on People v. Kiddoo (1990) 225 Cal.App.3d 922, disapproved on other grounds in People v. Welch (1993) 5 Cal.4th 228, 233.) In Kiddoo, the trial court imposed a probation condition that prohibited the possession or consumption of alcoholic beverages on a 33-year-old defendant convicted of methamphetamine possession. (Kiddoo, at pp. 927-928.) The appellate court struck the condition because nothing in the record "indicated that alcohol was related to the crime for which defendant was convicted" (id. at p. 927) and there is "no factual indication in the record that the proscribed behavior, in defendant's case, is reasonably related to future criminal behavior." (Id. at p. 928.) We are not persuaded Kiddoo compels a different result here, given the discretion afforded to a trial court and that, as we have explained above, the conditions are tethered to facts and circumstances in the record.
Regarding the prohibition that Valle refrain from alcohol use, he admitted to experimenting with alcohol while he was underage. While Valle asserted he did not like the taste, as we have noted above, he admitted to using marijuana habitually. The probation report generally expressed concern over his decision-making and questioned his denial of any substance abuse issue. Courts have noted that "[t]he use of alcohol produces many effects similar to the effects produced by marijuana, barbiturate and other sedative hypnotics. Sensorial impairment is present, there is a lessening of internalized self-control, and euphoria, accompanied by a reduction of anxiety, is experienced." (People v. Smith (1983) 145 Cal.App.3d 1032, 1034.) Given his history of marijuana use, it "would make little sense to deprive [defendant's] probation officer of the power to direct [defendant] away from alcohol as a substitute mind-altering substance." (See People v. Cota (2020) 45 Cal.App.5th 786, 792.) Regarding the conditions that he submit to chemical testing when requested by the probation officer, and that he participate in counseling or a substance abuse program that the probation officer deems necessary, we also conclude they were not arbitrarily imposed for the reasons we have stated above. (See Malago, supra, 8 Cal.App.5th at p. 1307.)
Turning to the medical marijuana condition that requires Valle to obtain court approval for a prescription for medical marijuana, Valle concedes that a trial court has the inherent authority to impose conditions of probation limiting or prohibiting the use of medical marijuana. (See, e.g., People v. Leal (2012) 210 Cal.App.4th 829, 847 (Leal); People v. Hughes (2012) 202 Cal.App.4th 1473, 1479-1480.)
However, Valle contends the trial court abused its discretion here under Lent because the condition is not related to his future criminality. We reject this argument for the reasons discussed above, as the record supports a reasonable inference that Valle's assertion to the probation officer that he used marijuana only for medical purposes was not credible. In addition, there is substantial evidence that Valle used marijuana habitually and illegally while underage. The trial court could reasonably have concluded that restricting his use of marijuana would reasonably help curb his future criminality. Moreover, the evidence reflects Valle was carrying a concealed and loaded weapon on his way to obtain marijuana, potentially endangering himself and others. The evidence in this case shows both rehabilitative and public-protection value in interfering with Valle's purported medical use of marijuana while on probation. (See Leal, supra, 210 Cal.App.4th at p. 849.)
As previously stated in footnote 5 ante, Valle turned 21 years old several months after his sentencing. (See Health & Saf. Code, § 11362.1, subd. (a).)
Alternatively, Valle contends the medical marijuana condition is invalid because it serves no legitimate purpose under section 1203.1, subdivision (j), but rather "restrict[s] [his] access to physician prescribed treatment." He states that complying with the condition serves no legitimate purpose because it requires him to either "abstain from [] medically prescribed treatment" or provide "false" information to his health care provider that he has a history of substance abuse. He points out that the condition (as stated in the minute order for the sentencing hearing) requires the provider to "testify that she is aware that Mr. Valle has a history of substance abuse, but still recommends the use of medical marijuana."
As written in the minute order, the medical marijuana condition states: "You may not knowingly use or possess marijuana or a Medical Marijuana Identification Card without first setting a hearing before this court to present admissible evidence that: (a) you have a recommendation of a health care provider for marijuana, (b) the health care provider is aware that you have history of substance abuse, and (c) the health care provider still recommends the use of marijuana."
By contrast, the trial court's oral ruling does not require that Valle tell the health care provider that he has a history of substance abuse but rather is focused on whether Valle can present evidence to the court demonstrating a legitimate medical need for marijuana. As noted above, the trial court did not mention the health care provider's awareness of Valle's "substance abuse" but rather stated: "You may not obtain a prescription for marijuana without first having a hearing in this court with admissible evidence. And I don't accept a boilerplate, photocopied form. But if your healthcare provider would like to come into court and tell me you need marijuana, I'd be happy to listen. Otherwise no marijuana."
This court need not reach Valle's argument that the portion of the written condition requiring a health care professional to testify that Valle has a history of substance abuse is invalid because the trial court's sentencing order did not contain this requirement. "When there is a discrepancy between the minute order and the oral pronouncement of judgment, the oral pronouncement controls." (People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073.) " 'If the judgment entered in the minutes fails to reflect the judgment pronounced by the court, the error is clerical, and the record can be corrected at any time to make it reflect the true facts.' " (People v. Rowland (1988) 206 Cal.App.3d 119, 123.) Thus, we will modify the probation condition to delete this aspect of the condition.
We modify the probation condition related to medical marijuana to state: "You may not knowingly use or possess marijuana without a hearing before the court in which you present admissible evidence that your health care provider recommends you use marijuana."
III. DISPOSITION
The judgment is ordered modified. The probation condition related to medical marijuana is modified to state: "You may not knowingly use or possess marijuana without a hearing before the court in which you present admissible evidence that your health care provider recommends you use marijuana." As modified, the judgment is affirmed.
/s/_________
DANNER, J.
WE CONCUR:
/s/_________
GREENWOOD, P.J.
/s/_________
GROVER, J.