P. v. Tso
Filed 8/12/13 P. v. Tso CA1/5
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE
DISTRICT
DIVISION FIVE
>
THE PEOPLE, Plaintiff and Respondent, v. Defendant and Appellant. | A134485 ( Super. |
Appellant
Orlando Gene Tso challenges a probation condition precluding his use and
a nonappealable order, the appeal is dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
On
March 8, 2010, the
County District Attorney filed a complaint against appellant alleging a
felony count of unlawfully carrying a
concealed dirk or dagger (Pen. Code, former § 12020, subd. (a)(4); now
§ 21310);
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and misdemeanor counts of resisting
arrest (§ 148, subd. (a)(1)) and public
intoxication (§ 647, subd. (f)).
On June 17, appellant entered a plea of no contest to the felony count,
and the remaining counts were dismissed.
On
July 15, 2010, the court
suspended imposition of sentence and placed appellant on three years’
supervised probation, subject to various terms and conditions, including
completion of a residential drug rehabilitation program, community service,
chemical testing, and a condition precluding use and possession of alcoholic
beverages and controlled substances without a valid prescription.
Appellant’s
probation was summarily revoked on November
19, 2010, for failing
to complete residential
treatment. He had been terminated from
his treatment program and referred for outpatient services “due to his
inability to pay rent and his manipulative behaviors.†At a January
13, 2011 hearing, the court reinstated appellant’s probation and
modified the terms and conditions to require additional community service and
completion of a one-year aftercare program in lieu of residential treatment.
On
October 10, 2011, an
officer responding to a 911 call found appellant’s former girlfriend crying in
a vehicle with her infant child as appellant danced in circles in the garage,
waving a feather and playing a homemade flute.
He displayed erratic behavior, yelled at his girlfriend, and refused to
comply with the officer’s directives, so he was taken into custody. (§ 148, subd. (a)(1) [obstructing a
peace officer in the discharge of his duty]; § 1203.2 [probation
revocation upon rearrest].) He admitted
he had consumed a spoonful of peyote immediately before his arrest. Shortly thereafter, applellant’s probation
was once again summarily revoked. At an
October 17 hearing, appellant admitted violating his probation by failing to
abstain from the use of controlled substances, including peyote, and
interfering with an officer in the line of duty. The probation officer said appellant had made
progress in some areas but continued to use medical marijuana and peyote. The probation officer informed the court that
appellant had stated he “is now ready to abstain from marijuana as well as
peyote.†The court found a probation
violation and revoked appellant’s probation, but reinstated probation on the
same terms and conditions and imposed an additional condition requiring
appellant to abstain from medical marijuana.
On
November 8, 2011,
appellant’s counsel set the case for hearing on a motion to modify appellant’s
probation to permit his use of marijuana and peyote in Native American
rituals. (§ 1203.3, subd. (a).) On November 18, before the motion was heard,
the court summarily revoked appellant’s probation for failure to abstain from
marijuana. Appellant had tested positive
for THC (tetrahydrocannabinol) on October 17, November 7, and November 15. At a November 18 hearing, appellant denied
the alleged probation violation, maintaining he was using marijuana consistent
with his spiritual beliefs. The court
set a probation violation hearing for December 22.
At
the December 22, 2011
hearing, the parties stipulated that peyote and marijuana are controlled
substances. Appellant testified as
follows: He is a member of the Four
Corners Navajo Nation and belongs to the Native American church, which has
spiritual laws requiring the use of peyote.
Peyote is “a sacrament†during worship and is considered “medicineâ€; it
helps the tribe maintain serenity, clarity and a strong mind, and is used to
“stay sober[,] . . . to get out of hardships, and [for] health
issues.†One-half to two-thirds of the
tribe uses peyote as a sacrament; other tribe members do not need it because
they are “healthy†and “complete.â€
Marijuana is not associated with the Native American church. Some tribe members use marijuana medicinally;
others do not use it at all. Appellant
is a “bona fide medicine man†and can administer medicine to himself.
Appellant
offered into evidence his “215 card;â€
the card was a therapeutic cannabis recommendation prepared by Hanya Barth,
M.D., of Compassionate Health Options, indicating appellant had been examined
on February 15, 2011, and would benefit from the use of medical cannabis. The prosecutor stipulated the recommendation
was valid. The recommendation provided
diagnosis codes of 780.52 and 309.81, which appear to correspond to diagnoses
of insomnia and posttraumatic stress
disorder (PTSD).
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The
court asked the parties to submit briefing and set the matter for hearing in
January 2012.
On
January 25, 2012, the court
found no probation violation, citing a lack of evidence, and reinstated
appellant’s probation with all terms and conditions to remain in effect. The court denied appellant’s motion to modify
the terms and conditions of probation to allow his use and possession of
peyote, stating: “[Y]ou agreed, at the
time you were placed on probation, to these terms and conditions of
probation. They were set forth because
of your history of substance abuse. And
that history is lengthy.†The court said
appellant’s “status as a probationer restricts his constitutional rights
. . . and allows me to make a decision whether these probation terms
are consistent with public safety and . . . your own health and
safety. And I find that those terms are
consistent with those two items.†The
court further stated it had found a compelling interest that allowed it to
restrict appellant’s use of peyote and its findings were the same as to
appellant’s use of marijuana.
Appellant
filed a timely appeal from the trial court’s order, contending the prohibition
of medical marijuana was unreasonable, and the prohibition of peyote violated
his fundamental religious rights and
was not narrowly tailored to protect a compelling state interest.
DISCUSSION
We
do not reach the merits of appellant’s challenge to his probation conditions,
as he did not appeal from the order initially imposing them, which was the
order granting probation. “An order
granting probation . . . is an appealable order. [Citations.]â€
(People v. Ramirez (2008) 159
Cal.App.4th 1412, 1421.) “In general, an
appealable order that is not appealed becomes final and binding and may not
subsequently be attacked on an appeal from a later appealable order or
judgment. [Citations.] Thus, a defendant who elects not to appeal an
order granting or modifying probation cannot raise claims of error with respect
to the grant or modification of probation in a later appeal from a judgment
following revocation of probation.†(
The denial of a motion seeking modification of probation terms in the
original plea agreement is therefore
not appealable.
title="">[4] (See People
v. Djekich (1991) 229 Cal.App.3d 1213, 1219 [“Because the order granting
probation was appealable, [the defendant’s] failure timely to do so precludes
this belated attempt to appeal from an order denying modification. To hold otherwise would condone extending the
jurisdictional time limit for filing appeals through bootstrapping. [Citation.]â€].)
The
court first imposed the probation condition at issue here, which precludes
appellant’s use and possession of controlled substances without a valid
prescription, in its July 2010 order granting probation. At the time of that order, appellant had a
medical marijuana recommendation and had regularly used peyote for spiritual
purposes since he was 10 years old; he later conceded marijuana and peyote were
controlled substances. Yet he did not
appeal from the order granting probation, and did not challenge the probation
condition until almost 16 months later.
The July order became final in September 2010, when the statutory period
for appeal expired. Appellant may not
now challenge the terms and conditions imposed in that order in the guise of an
appeal from an order denying his motion to modify probation. A party may not use a motion to modify
probation to resurrect an issue for appeal when the time for appeal has passed.
Section
1237 allows an appeal “[f]rom any order made after judgment, affecting the
substantial rights of the party†(id.,
subd. (b)), and states that an order granting probation “shall be deemed to be
a final judgment†(id., subd.
(a)). Although some orders concerning
modification of probation may be appealable as orders after judgment affecting
the substantial rights of the
defendant, a defendant’s “ ‘[s]ubstantial rights’ . . . are not
affected when [his] objections concern matters that could have been reviewed on
timely appeal from the judgment.
[Citations.]†(
220.)
To
the extent the original probation condition, which prohibits use or possession
of controlled substances without a valid
prescription, may be construed to allow the use and possession of marijuana
when a defendant has obtained a medical marijuana recommendation, appellant
also failed to appeal from the trial court’s October 17, 2011 order modifying
probation, which imposed an additional condition specifically precluding his
use and possession of medical marijuana.
DISPOSITION
The appeal
is dismissed.
SIMONS,
Acting P.J.
We concur.
NEEDHAM, J.
BRUINIERS, J.
the Penal Code.
issued under the Compassionate Use Act of 1996.
(Health & Saf. Code, § 11362.5, also known as Prop. 215.)
