People v. Moret

180 Cal.App.4th 839

104 Cal. Rptr. 3d 1

THE PEOPLE, Plaintiff and Respondent, v. DARYL LAWRENCE MORET, Jr., Defendant and Appellant.

No A123591.

Court of Appeals of California, First District, Division Two.

December 28, 2009.

As modified January 22, 2010.

Robert L.S. Angres for Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Martin S. Kaye and Laurence K. Sullivan, Deputy Attorneys General, for Respondent.

OPINION

HAERLE, J.

I. INTRODUCTION

After appellant pled no contest to one charge of possession of a concealed firearm (Pen. Code, § 12025, subd. (a)(2))¹ and had a second charge dismissed, the court suspended imposition of a prison term and placed him on probation. The court imposed various conditions, among them that appellant abstain from using drugs and alcohol and, in connection with that condition, surrender his medical marijuana card. Defense counsel objected to that condition but, ultimately, appellant agreed to it in lieu of a jail sentence by the court and also waived his right of appeal. Although he neither asked for nor obtained a certificate of probable cause, appellant now appeals from the sentence imposed, specifically the condition requiring nonuse of marijuana and the surrender of his medical marijuana card. We affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

In the late afternoon of July 29, 2008,² two Fairfield police officers on bicycle patrol noticed two individuals, both of whom appeared to be under the age of 18, one of them appellant, passing a cigarette back and forth. The officers stopped the youths and asked their ages; appellant responded that he was 19 (which he was) and the other youth that he was 16. It being a misdemeanor to smoke when one is under 18, or assist a person under 18 to do so (see § 308), the officers detained the two youths. They then asked both if either was carrying anything illegal. Appellant responded that he was carrying a gun. The officers then took that gun, a loaded .38-caliber Smith & Wesson revolver, from appellant's front pants pocket. A records check revealed that the gun had been stolen in neighboring Vacaville the previous year. Appellant told the officers that he did not know the gun was stolen, and that he and a friend (a friend he was either unable or unwilling to identify) had found it in "the bushes on Dana Drive" in Fairfield the week before and, since then, had taken turns carrying it because they could not keep it at their homes. Appellant later added that carrying the gun made him "feel safe," and that he was afraid someone might try to attack him.

On November 6, appellant signed, and his counsel approved, a "Waiver of Constitutional Rights and Declaration in Support of Defendant's Motion to Change Plea" (hereafter waiver form). In it, appellant agreed to plead no contest to the first count of the information, charging a section 12025, subdivision (a)(2), offense with the prosecution dismissing the second count, charging a violation of section 12031, subdivision (a)(1), albeit with a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754 [159 Cal.Rptr. 696, 602 P.2d 396].) The prosecution also agreed not to pursue any criminal charges against appellant for, four months earlier, embezzling $2,000 from his former employer, Mervyn's. Also in that document, appellant acknowledged that, at sentencing, he faced a maximum prison term of three (3) years and then initialed the paragraph in the form reading: "Even though I will be convicted in this case as a result of my plea, I have the right to appeal the judgment and rulings of the court. [¶] I give up my right of appeal." (Original boldface.)

Appellant also initialed the paragraph stating that his attorney had read and explained the entire form to him, which his counsel verified a few lines later. Appellant also signed the form at the end, as did the court.

Apparently sometime between December 1 and 10, appellant was interviewed by a deputy probation officer.³ In that interview, appellant revealed that he had been unemployed since losing his job at a Mervyn's store four months before because of the embezzlement; he was attending community college, however. He also told the probation officer that he had suffered from migraine headaches since second grade, had "recently obtained a medical cannabis patient identification card," and now smoked marijuana about four times a week, mainly at night before going to bed. He further explained that he had first tried marijuana at age 16, but stopped using it when he got his first job at age 17 and when another drug appeared to be helping him, but then reverted to marijuana when he turned 19, i.e., over a year earlier. Appellant stated that he foresaw difficulty in abstaining from marijuana because it was the only substance that was able to manage his migraine headaches. He was then told by that officer that his "probation terms and conditions will include abstention from drugs and alcohol while under probation supervision."

The probation officer's report was received by the court on December 10, a week before appellant's sentencing hearing on December 17.

At that hearing, defense counsel objected to the drug abstention condition as inappropriate under the circumstances, and requested both that appellant be allowed to continue using marijuana and to keep his medical marijuana card during his probationary term. After a pause to allow appellant and his counsel to confer, this continued to be appellant's position. The court maintained that appellant had to choose between abiding by the probationary conditions in order to receive "ASP" (the alternative sentencing program agreed to by the parties and the court) or giving up "his freedom." The court also added some other reasons for its decision, which we will note below. In any event, defense counsel then stated that appellant agreed to the "ASP" with the conditions noted, although counsel reiterated her objection to that choice. Appellant then answered "Yes" to the court's question if he agreed not to smoke marijuana and surrender his medical marijuana card as a condition of probation.

The court's final judgment and sentence included a restitution requirement regarding the Mervyn's embezzlement and only a three-day jail term, satisfied by credit for time already served. Appellant was ordered to abstain from the use of alcohol and illegal drugs and agreed, both verbally and in writing, not to use marijuana while on probation and to surrender his medical marijuana card.

The following day, December 18, appellant filed a notice of appeal which specifically stated that he was appealing from "the sentence or other matters occurring after the plea ... specifically (1) the court's requirement that he choose between a jail sentence and being allowed to take marijuana for his medical condition pursuant to Health and Safety code section 11362 et sec [sic]; (2) imposition of drug testing terms and (3) no drug/alcohol terms." No certificate of probable cause was requested or secured, however.

III. DISCUSSION

Appellant's position on appeal is essentially the same as that asserted at the sentencing hearing and in his notice of appeal, i.e., that the court erred in insisting that appellant had to choose between the conditions of probation recommended by the probation department, including giving up marijuana use and his medical marijuana card, or not receiving probation at all and thus serving a prison term.

The People contend that these arguments lack merit because (1) appellant waived his right to appeal by his written and verbal waiver of November 6, (2) appellant did not secure a certificate of probable cause before filing his appeal, and (3) the court did not abuse its discretion in imposing such a condition of probation for appellant, inasmuch as he specifically agreed to it at the December 17 sentencing hearing. Because we agree with the People's final contention, we do not reach their other two.

The combination of several factors leads us to conclude that the trial court did not abuse its discretion in imposing the no-marijuana-use condition. These factors include (1) appellant's personal situation, including specifically his recent admitted embezzlement of money from his first employer and his apparent credibility problems, (2) his explicit agreement—both verbal and written—at his sentencing hearing to the now challenged probation condition in lieu of a possible prison sentence, (3) substantial appellate precedent supporting the imposition of such a condition, and (4) the provisions of two sections of the Health and Safety Code, sections 11362.795, subdivision (a) (§ 11362.795(a)), and 11357.

(1) It has long been the law in California that a trial court is vested with substantial discretion in deciding the appropriate conditions of probation in any individual case. In December of last year, our Supreme Court, in an opinion authored by the Chief Justice, upheld a probation condition requiring a defendant who had pled guilty to two counts of DUI (driving under the influence) to notify his probation officer of the presence of any pets in his residence. In so doing, the court summarized the applicable principles thusly: "`Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. [Citations.] The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.] The primary goal of probation is to ensure "[t]he safety of the public ... through the enforcement of court-ordered conditions of probation." [Citation.]' [Citation.] Accordingly, the Legislature has empowered the court, in making a probation determination, to impose any `reasonable conditions, as it may determine are fitting and proper to the end that justice...