Filed 12/14/17 P. v. McCarthy CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER JAMES MCCARTHY,

Defendant and Appellant.
H043322
(Santa Clara County
Super. Ct. No. C1515479)
Defendant Christopher James McCarthy pleaded no contest to possession for sale of a controlled substance, LSD, in violation of section 11378 of the Health and Safety Code. The trial court suspended imposition of sentence and placed defendant on three years’ formal probation. Despite a physician’s statement that defendant qualifies for the use of medical marijuana under section 11362.5, one of defendant’s probation conditions bars him from possessing medical marijuana unless he provides his probation officer with paperwork from his primary care physician showing that he has a serious medical condition and uses the drug in pill form. The trial court also ordered defendant to pay various fines, fees, and penalty assessments, including a $150 drug program fee plus penalty assessment (§ 11372.7) and an AIDS education fine not to exceed $70 plus penalty assessment (§ 11377, subd. (c)).
On appeal, defendant challenges the medical marijuana probation condition and the imposition of the drug program fee and the AIDS education fine. We will strike the medical marijuana probation condition. In addition, the orders that defendant pay a drug program fee plus penalty assessment and an AIDS education fine plus penalty assessment are stricken. As so modified, we will affirm the judgment.
I. BACKGROUND
On June 28, 2015, defendant sold six doses of LSD to Luis Martin, a detective sergeant with the Santa Clara Police Department who was working undercover. Officers arrested McCarthy shortly thereafter. Detective Bryan Williams searched defendant incident to arrest and found four grams of marijuana, 100 individual doses of LSD, and $2,025 cash in defendant’s possession.
A felony complaint filed on July 10, 2015 charged defendant with possession for sale of LSD (§ 11378, count 1) and transportation, sale, and distribution of LSD (§ 11379 subd. (a), count 2).
On February 9, 2016, defendant pleaded no contest to count 1 and the court dismissed count 2 at the People’s request. Defendant waived time for sentencing. The trial court suspended imposition of sentence and placed defendant on three years’ formal probation. The court ordered defendant, as a condition of his probation, to serve four months in county jail and stated that he was eligible to serve that sentence on the electronic monitoring program (EMP). The court further ordered that defendant not “knowingly possess[] or use illegal drugs or illegal controlled substances . . . .” Defense counsel noted that defendant had with him a physician statement and recommendation permitting him to use marijuana for medical purposes and requested that the court “allow him to use medical marijuana while on formal probation,” arguing that, “while he was in possession of marijuana at the time stopped by the police, there is no indication that he was possessing it for sale or illegally.” The People did not object to allowing defendant to use medicinal marijuana while on probation. However, the probation officer requested that defendant be permitted to use medical marijuana while on probation only in pill form and only if he presented paperwork from his primary care physician showing that he has a serious medical condition. Defense counsel objected to those proposed conditions. The court adopted the Probation Department’s recommendation, stating “it is possible that [defendant] could go through that procedure, but it has to be approved by probation in accordance with what the probation officer just said.” The minute order states “medical marijuana use must be approved by probation as stated on the record.”
Toward the beginning of the February 9, 2016 hearing, defense counsel stated: “Mr. McCarthy is indigent. He does not have a current income. He has had to save up money to travel here for all of his court dates from where he lives. I would ask the Court to impose the minimal fines and fees, to waive any fines and fees that can be waived for inability to pay, and to set supervision fees at a low amount, if possible. He will also need to pay for the [electronic monitoring] program. And if the Court could stay the payment of fines and fees that are being imposed today for few months to allow him to do that, I would appreciate it.”
After accepting defendant’s plea and placing him on probation, subject to the conditions stated above, the court imposed various fines, fees, and penalty assessments. Specifically, the court imposed a $50 criminal laboratory analysis fee plus penalty assessment (§ 11372.5). At that time, defense counsel asked the court to “waive the penalty assessment due to Mr. McCarthy’s inability to pay and the fact that he will need to prioritize electronic monitoring and any treatment programs recommended by probation.” The People responded that “if he can afford EMP, he can afford his fines and fees.” The court stated that it would “go ahead and impose it since we are allowing him to do an EMP sentence. And he can set up a payment plan in accordance with his ability to pay.”
The court went on to impose a $150 drug program fee plus penalty assessment (§ 11372.7). Defense counsel did not object. The court imposed a $70 AIDS education fine plus penalty assessment (§ 11377, subd. (c)). At that point, defense counsel requested that the court “not . . . impose the penalty assessment due to inability to pay.” The court responded by ordering the AIDS education fine “not to exceed $70 plus penalty assessment.” Next, the court imposed a $300 restitution fund fine plus a 10 percent administrative fee (Pen. Code, § 1202.4), a $40 court security fee (Pen. Code, § 1465.8), and a $30 criminal conviction assessment fee (Govt. Code, § 70373). The court waived the booking fee “based on [defendant’s] inability to pay.” Finally, the court imposed a probation supervision fee of $25 per month (Pen. Code, § 1203.1, subd. (b)). The court explained that it imposed the $25 monthly fee, “instead of [a fee] not to exceed $110 a month,” because of defendant’s “financial circumstances.”
Defendant timely appealed.
II. DISCUSSION
A. Medical Marijuana Probation Condition
Defendant contends the trial court abused its discretion in conditioning his use of medical marijuana during probation on his production of evidence of a serious medical condition and use of a pill form of the drug. The People maintain the condition is valid because it relates to future criminality by “remov[ing] any temptation to try to hide criminal possession of marijuana, or being under the influence of drugs such as the LSD he was selling, behind a façade of compassionate use.”
1. Governing Legal Principles and Standard of Review
“In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) “A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .’ ” (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) The test set forth in Lent “is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.” (People v. Olguin (2008) 45 Cal.4th 375, 379-380.)
We review conditions of probation for abuse of discretion. (Carbajal, supra, 10 Cal.4th at p. 1121.) A trial court does not abuse its discretion unless its determination is arbitrary or capricious or exceeds the bounds of reason, all of the circumstances being considered. (People v. Hughes (2012) 202 Cal.App.4th 1473, 1479 (Hughes).)
2. Analysis
Given the medical marijuana recommendation from defendant’s physician, “[t]he probation condition at issue here relates to otherwise legal conduct because the medical use of marijuana has been legal in California since 1996 when the electorate passed Proposition 215, the [Compassionate Use Act (CUA)], codified as Health and Safety Code section 11362.5.” (Hughes, supra, 202 Cal.App.4th at pp. 1479-1480.) And the condition has no relationship to the crime of which defendant was convicted—possession for sale of LSD. Accordingly, the condition is valid only if it is reasonably related to future criminality. We conclude that it is not.
The People contend the condition will prevent defendant from hiding criminal possession of marijuana or use of illicit drugs such as LSD behind a façade of compassionate use, citing People v. Brooks (2010) 182 Cal.App.4th 1348, 1352-1353. But in Brooks, the defendant “tried to hide his illegal conduct”—possessing marijuana for sale—“behind the CUA,” such that the probation condition barring him from using medical marijuana “remove[d] any temptation to try to hide criminal possession of marijuana behind the CUA again.” (Id. at p. 1353, italics added; see Hughes, supra, 202 Cal.App.4th at p. 1481 [probation condition prohibiting defendant from possessing marijuana even for medical use was reasonably related to future criminality where “defendant purported to rely on the CUA to justify his possession of the marijuana plants he was transporting to sell”]; People v. Leal (2012) 210 Cal.App.4th 829, 842 [probation condition prohibiting medical marijuana was reasonably related to future criminality where defendant “was using the CUA as a front for illegal sales, even if some of what he possessed might have been for his own medical use”].) Here, there is no evidence defendant has engaged in criminal possession of marijuana or use of illicit drugs, let alone tried to hide those activities behind the CUA. Therefore, the challenged condition is not reasonably related to future criminality and the trial court abused its discretion by restricting defendant’s use of medical marijuana as a condition of his probation.
B. Fines, Fees, and Assessments
Defendant challenges the imposition of the drug program fee (§ 11372.7) and the AIDS education fine (§ 11377, subd. (c)). Defendant’s argument is two-fold. First, he argues the court’s finding that he lacked the ability to pay the booking fee precluded it from concluding he had the ability to pay the drug program fee and the AIDS education fine. Put differently, in defendant’s view, an inability to pay finding as to one fine or fee applies to all fines and fees. Second, he contends the court failed to make the requisite ability to pay findings as to the drug program fee and the AIDS education fine.
1. Forfeiture
The People urge us to conclude defendant forfeited his challenges to the drug program fee and the AIDS education fine by failing to object below. Defendant concedes that, during sentencing, trial counsel did not specifically object to the drug program fee and the AIDS education fine, but instead requested that the court refrain from imposing “penalty assessment[s]” based on defendant’s inability to pay. Nevertheless, defendant argues the trial court understood the objection as applying to fines and fees, in addition to penalty assessments, such that the issue is preserved for appeal. Alternatively, defendant contends trial counsel rendered ineffective assistance in failing to object specifically to the drug program fee and the AIDS education fine.
“ ‘Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal.’ [Citation.] ‘ “The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]” ’ [Citation.] Additionally, ‘[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.’ ” (People v. McCullough (2013) 56 Cal.4th 589, 593.) “In a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented.” (People v. Scott (1978) 21 Cal.3d 284, 290.)
We conclude defendant forfeited his challenge to the drug program fee but preserved his challenge to the AIDS education fine. At the start of the hearing, defense counsel requested that the court “waive any fines and fees that can be waived for inability to pay . . . .” That blanket request was insufficient to make the court aware of the errors raised on appeal—namely, the court’s failure to make ability to pay findings with respect to the drug program fee and the AIDS education fine, specifically.
Defense counsel made no objection when the trial court imposed the drug program fee and associated penalty assessment. Defendant thereby forfeited his challenge to that fee, regardless of how the court interpreted defense counsel’s other objections. We address defendant’s ineffective assistance of counsel claim below.
By contrast, defense counsel specifically requested that the trial court waive, based on inability to pay, the penalty assessment associated with the AIDS education fine. Defense counsel should have objected to the fine itself, not the associated penalty assessment, which is mandatory when the fine is imposed. But the issue nevertheless is preserved because the record shows that the court understood that defendant was objecting to the underlying fine. The court responded to counsel’s request by changing the amount of the AIDS education fine from $70 to “not to exceed $70”; the court continued to tack on the mandatory penalty assessment. Plainly, the court understood that defendant was objecting to the fine.
2. Ineffective Assistance of Counsel–Failure to Object to Drug Program Fee on Inability to Pay Grounds
a. Legal Principles
“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel’s performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance of counsel claim requires a showing that “counsel’s representation fell below an objective standard of reasonableness” “under prevailing professional norms.” (Id. at p. 688.) “If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ ” (People v. Ledesma (2006) 39 Cal.4th 461, 746.) With respect to prejudice, a defendant must show “there is a reasonable probability”—meaning “a probability sufficient to undermine confidence in the outcome”—“that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, supra, at p. 694.)
Section 11372.7 requires a defendant convicted of certain drug offenses to “pay a drug program fee in an amount not to exceed [$150] for each separate offense” unless “the court determines that the person does not have the ability to pay a drug program fee, [in which case] the person shall not be required to pay a drug program fee.” The “statute does not require the trial court to make an express finding of ability to pay a drug program fee . . . .” (People v. Staley (1992) 10 Cal.App.4th 782, 785.) In view of the general rule that a trial court is presumed to have been aware of and followed the applicable law, where a drug program fee was imposed without an express finding of the defendant’s ability to pay, courts of appeal will presume the trial court found an ability to pay the fee where “the record does not suggest otherwise.” (People v. Clark (1992) 7 Cal.App.4th 1041, 1050; see People v. Martinez (1998) 65 Cal.App.4th 1511, 1517.)
b. Analysis
The record establishes that defense counsel intended to object to all fines and fees requiring an ability to pay finding on the ground that defendant is indigent. Because there simply could be no satisfactory explanation for her failure to specifically object to the imposition of the drug program fee, defendant has established that counsel’s performance was deficient.
He also has established prejudice. The court responded favorably when defense counsel objected following the imposition of the AIDS education fine by revising that fine from $70 to “not to exceed $70.” The court waived the booking fee on inability to pay grounds. And it imposed a reduced probation supervision fee due to defendant’s financial circumstances. Plainly, the court concluded defendant is of limited means.
Moreover, the record is devoid of any evidence that defendant has the ability to pay a $150 drug program fee and associated penalty assessments. No probation report was prepared in this case. No evidence was submitted as to defendant’s assets, education, employment history, or employment prospects. The record indicates defendant is a 57-year-old transient with physical disabilities. Contrary to the People’s argument, defendant’s eligibility for the electronic monitoring program does not support an inference of ability to pay. Participation in that program is not based on ability to pay. (Pen. Code, § 1203.016, subd. (g) [“The board of supervisors may prescribe a program administrative fee to be paid by each home detention participant that shall be determined according to his or her ability to pay. Inability to pay all or a portion of the program fees shall not preclude participation in the program, and eligibility shall not be enhanced by reason of ability to pay”].) And while defendant theoretically could work while on EMP, there is no evidence that he has a job or is likely to be able to obtain one.
Given the court’s appreciation of defendant’s limited means and the lack of evidence supporting a finding of ability to pay a $150 drug program fee and associated penalty assessment, it is reasonably probable that the trial court would not have imposed a $150 drug program fee had defense counsel made the court aware of the statutory ability-to-pay requirement.
3. AIDS Education Fine
a. Legal Principles
Section 11377 authorizes the court to “assess a fine not to exceed seventy dollars ($70) against any person who violates subdivision (a), with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code [AIDS education program]. The court shall, however, take into consideration the defendant’s ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.” As with the drug program fee, there is no statutory requirement that the trial court make an express finding of ability to pay the AIDS education fee.
b. Analysis
Defendant’s first contention—that the trial court’s inability to pay the booking fee finding applies to the AIDS education fine—is untenable. A trial court can rationally determine that a defendant has the ability to pay certain fines and fees and not others. Here, the court found defendant was unable to pay the booking fee. That finding related to the booking fee only, not to the AIDS education fine.
Turning to defendant’s second contention, he is correct that the trial court did not make an express finding of his ability to pay the AIDS education fine. Such findings may be implied, of course. However, here, the record rebuts the usual presumption that the trial court made the requisite ability to pay finding. As discussed above, no probation report was prepared, nor was any evidence submitted regarding defendant’s financial situation. Given the lack of substantial evidence of defendant’s ability to pay the AIDS education fine and related penalty assessment, we cannot presume the trial court made such a finding.
While we could remand with directions to conduct a hearing, we conclude, in the interests of judicial economy and efficiency, that the appropriate action is simply to strike the orders that defendant pay the drug program fee and AIDS education fine and related penalty assessments.
III. DISPOSITION
The probation order is modified to strike the condition that defendant obtain approval to use medical marijuana from the Probation Department. The orders that defendant pay a $150 drug program fee plus penalty assessment and an AIDS education fine not to exceed $70 plus penalty assessment are stricken. With those modifications, the judgment is affirmed.




_________________________________
ELIA, ACTING P.J.

WE CONCUR:



_______________________________
BAMATTRE-MANOUKIAN, J.



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MIHARA, J.












People v. McCarthy
H043322