P. v. Calderon

Filed 2/11/10 P. v. Calderon CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge.

Barbara Coffman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.

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Statement of the Case

On May 6, 2009, appellant, Ernestina Philmena Calderon, was charged with six codefendants in a consolidated information with felony vandalism (Pen. Code,  594, subd. (a)). On May 28, 2009, appellant entered into a plea agreement in which she would admit the vandalism allegation and be placed on probation upon various terms and conditions.

The prosecutor set forth the following factual basis for the change of plea.^[1] On March 22, 2009, the appellant and codefendants were members or associates of the Norteo street gang and went to a residence in Hanford. They were wearing gang clothing and were armed with bats. The codefendants proceeded to break out all of the windows of the residence as they yelled, [t]his is our barrio and Hanford Norte. They called the residents inside the home scraps, a derogatory term for rival gang members. The damage to the home exceeded $400. Appellant was present with the codefendants. Although she was not using a bat, she was an aider and abettor.

Appellant waived her constitutional rights pursuant to Boykin/Tahl and pled no contest to felony vandalism.^[2] Appellant waived her right to a probation report and was sentenced after her no contest plea to felony probation for five years. Appellants counsel lodged objections to probation conditions 17, 18, and 19 but did not do so for condition 4. On appeal, appellant challenges these conditions. The respondent concedes error as to conditions 4 and 19 but believes condition 18 is valid and condition 17 requires a modification.

Probation Condition 4

Probation condition 4 states appellant must [a]bstain from the excessive use of intoxicating beverages.^[3] Appellant contends, and respondent concedes, this condition is not rationally related to future criminality and is vague.^[4]

Trial courts have broad discretion to set probation conditions to foster rehabilitation and to protect public safety. (Pen. Code,  1203.1; People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) A condition of probation will not be found invalid unless it (1) has no relationship to the crime or crimes for which the defendant was convicted, (2) relates to conduct that is not itself criminal, and (3) requires or forbids conduct that is not reasonably related to the defendants future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486; People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1444 (Tilehkooh).)

The parties agree that drinking alcoholic beverages after age 21 is legal and unrelated to appellants future criminality. They further agree the term excessive as used in probation condition 4 is not defined and open to subjective interpretation. Appellant and respondent argue that the amount of alcohol consumption one person would find excessive may be within a completely normal range for someone else. A probation condition is void for vagueness if it is not sufficiently precise for the probationer to know what is required of him or her. (People v. Lopez (1998) 66 Cal.App.4th 615, 630.) This condition is not sufficiently precise for appellant to know what is required of her. We agree it is void for vagueness and must be stricken.

Probation Condition 19

Probation condition 19 provides appellant shall [s]ubmit to chemical testing for the detection of alcohol/controlled substances as directed by the probation officer. Appellant argues she should be able to consume alcohol after age 21 without submitting to testing for it. Appellant also argues her offense did not involve the use of alcohol.

Respondent points out, however, that appellant cannot legally consume alcohol until she is 21 and her consumption of alcohol at this time is reasonably related to potential future criminality. Respondent argues appellant should not be tested for alcohol after age 21, but can be tested for alcohol until she reaches age 21. We agree with respondent and will order a modification of probation condition 19 to state that appellant can only be tested for alcohol consumption as required by the probation officer until she reaches age 21.

Probation Condition 17

Probation condition 17 states appellant shall, [r]efrain from the use or possession of controlled substances and narcotics paraphernalia without a medical prescription, and even then, only after a written notice is given to the probation officer by a licensed physician. Appellant contends this condition interferes with the physician/patient relationship because it potentially allows the probation officer to question a doctors medical decision and appellant could violate this condition if she used a prescribed medication prior to a doctor giving the probation officer notice. Appellant notes it is not a crime to use prescribed medication, and treatment of an illness by lawful means is generally not related to future criminality. (See Tilehkooh, supra, 113 Cal.App.4th 1433, 1444.)

Respondent agrees this condition places a probationary condition on appellants physician, someone appellant may have no control over. Respondent suggests the condition should be kept in its current form with the addition of language providing for notice within a reasonable time. Respondent would modify the condition to state that appellant [r]efrain from the use or possession of controlled substances and narcotics paraphernalia without a medical prescription, and even then, only upon providing written notice to the probation officer within a reasonable time.

We do not find it onerous for appellant to be required to give notice of her use of narcotics or narcotics paraphernalia within a reasonable time to the probation officer. We agree with respondent that the appellants medical treatment through the legal use of narcotics or narcotics paraphernalia cannot be conditioned on the requirement that her physician be required to give her a prescription and to notify the probation department of this fact. As phrased, the current condition places an undue restraint on the physician/patient relationship and appellants medical treatment. Should the appellant hypothetically need to use a hypodermic syringe, for instance, to inject herself with insulin under her physicians direction, she would be in violation of probation by following her physicians treatment before the physician provided notice of that treatment to the probation officer.

The language in the condition following the requirement of a physicians prescription stating and even then, only upon providing written notice also places an undue restraint on the appellants ability to receive medical treatment. As phrased, this condition implies to the appellant that she cannot begin recommended treatment until she sends written notice to her probation officer. Such restraint is not necessary.

Appellant, however, can be required to give notice to the probation officer of her medical treatment with narcotics or narcotics paraphernalia as a condition of probation. Though such notice would not be necessary to receive medical treatment, it can be required for appellant to be in compliance with her probation. Notice to the probation officer of her treatment serves to protect appellant from what could otherwise be a violation of her probation if she tested positive for the use of a prescribed narcotic. We hold that a valid condition of probation would require appellant to: Refrain from the use or possession of controlled substances and narcotics paraphernalia without a medical prescription, and the defendant shall provide written notice to the probation officer within a reasonable time not to exceed 21 days of the date defendant fills the prescription.^[5]

Probation Condition 18

Probation condition 18 states appellant shall [n]ot use or possess marijuana with/without medical advice, unless approved by the Superior Court. Respondent argues this condition merely provides for court approval for medical marijuana but does not prohibit such use. Appellant contends that the use of medical marijuana is governed by the Compassionate Use Act of 1996 (CUA) of the Health and Safety Code, section 11362.5 et seq. Appellant argues that requiring prior judicial approval for what is otherwise legal medical treatment exceeds the bounds of reason.

In Tilehkooh, the defendant was charged with violating probation for using marijuana pursuant to the CUA. The trial court found the CUA inapplicable as an affirmative defense for the probation revocation hearing. (Tilehkooh, supra, 113 Cal.App.4th 1433, 1439-1440.) There was no allegation in Tilehkooh that the defendant endangered others or diverted use of marijuana for nonmedical purposes. (Id. at p. 1440.) Tilehkooh found the trial court deprived the defendant of his right to due process and reversed the trial courts revocation of his probation. (Id. at pp. 1445, 1447.)

The court in Tilehkooh reasoned that, A rehabilitative purpose is not served when the probation condition proscribes the lawful use of marijuana for medical purposes pursuant to [Health and Safety Code] section 11362.5 any more than it is served by the lawful use of a prescription drug. (Tilehkooh, supra, 113 Cal.App.4th 1433, 1444.) Tilehkooh found it ordinarily cannot be said that the treatment of an illness by lawful means is reasonably related to the crime of which the defendant was convicted. (Ibid.) The CUA precludes the imposition of a criminal sanction for the use and possession of marijuana if the user satisfies its conditions, this law provides a defense to a probation revocation based on the use of marijuana.^[6] (Tilehkooh, supra, 113 Cal.App.4th at pp. 1444-1445.)

If the appellant follows the provisions of the CUA, she should not need prior court approval for her treatment. Probation conditions 17 and 18 both relate to medical treatment. The primary difference between probation conditions 17 and 18 is that the former is governed by sections 4059, 4059.5, 4060, and 4070 et seq. of the Business and Professions Code while the latter is governed by the CUA. Both conditions regulate conduct that, subject to the legal restrictions of the applicable statutes, is legal in California. As with probation condition 17, probation condition 18, as currently phrased, could potentially interfere with the physician/patient relationship and appellants medical treatment. We therefore find that both conditions should be treated equivalently.

As with probation condition 17, we find it reasonable for appellant to notify the probation department of treatment under the CUA within a reasonable time not to exceed 21 days unless she is medically incapacitated. As modified, the probation condition should provide that appellant: Not use or possess marijuana without medical advice pursuant to the provisions of the Compassionate Use Act (Health & Saf. Code,  11362.5, et seq.), and the defendant shall provide written notice of such treatment to the probation officer within a reasonable time not to exceed 21 days of the date defendant fills the prescription.

DISPOSITION

The case is remanded for the trial court to strike probation condition 4. The court shall modify probation conditions 19, 17, and 18 as follows. Probation condition 19 is modified to read: Submit to chemical testing for the detection of controlled substances, and for alcohol until she reaches age 21, as directed by the probation officer. Probation condition 17 is modified to read: Refrain from the use or possession of controlled substances and narcotics paraphernalia without a medical prescription, and the defendant shall provide written notice to the probation officer within a reasonable time not to exceed 21 days of the date defendant fills the prescription. Probation condition 18 is modified to read: Not use or possess marijuana without medical advice pursuant to the provisions of the Compassionate Use Act (Health & Saf. Code,  11362.5, et seq.), and the defendant shall provide written notice of such treatment to the probation officer within a reasonable time not to exceed 21 days of the date defendant fills the prescription. The judgment is otherwise affirmed.

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^* Before Dawson, Acting P.J., Kane, J., and Poochigian, J.

^[1] All defendants, including appellant, waived their right to a preliminary hearing.

^[2]Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.

^[3] Probation condition 3 states appellant must [t]otally abstain from the use of intoxicating beverages, until 21. According to her notice of appeal, appellant is currently 18 years old and will turn 21 prior to the end of her probation.

^[4] Although appellant did not object to this condition, the parties agree a constitutional challenge to a probation condition on the grounds of vagueness or overbreadth can be corrected if it can be said to present a pure question of law even if the doctrine of forfeiture would otherwise apply. (In re Sheena K. (2007) 40 Cal.4th 875, 877-888.) We will, therefore, review appellants challenge to probation condition 4 even though she did not object to it at sentencing.

^[5] The word reasonable could be open to conflicting interpretations and is as vague as the word excessive used in probation condition 4.

^[6] In People v. Spark (2004) 121 Cal.App.4th 259, 261-262, this court confronted the issue of instructional error where a defendant was charged with cultivating marijuana. We found Tilehkooh in accord with our analysis of the CUA. (Id. at p. 269.) The California Supreme Court recently filed an opinion finding that provisions of the CUA control over conflicting statutes passed by the Legislature. (People v. Kelly (Jan. 21, 2010, S164830) __ Cal.4th __.)