People v. O'Neal

THE PEOPLE, Plaintiff and Respondent, v. CARSENE CORTEZ O'NEAL, Defendant and Appellant.

E068938

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

October 3, 2018

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. 16CR000479)

OPINION

APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed.

Tyrone A. Sandoval, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

Defendant and appellant Carsene Cortez O'Neal forcibly kidnapped and inappropriately touched a 13-year-old girl. Subsequently, pursuant to a negotiated plea agreement, defendant pled no contest to kidnapping (Pen. Code, § 207, subd. (a)).¹ He also admitted that he had served two prior prison terms (§ 667.5, subd. (b)). In exchange, the remaining allegations were dismissed and defendant was placed on formal probation for a period of three years on various terms and conditions of probation. The court suspended imposition of an upper term of eight years for the kidnapping offense, and two years for the two prior prison terms, for a total term of 10 years, in state prison.

Defendant subsequently violated the terms and conditions of his probation. Following a formal hearing, the trial court found true that defendant violated the terms and conditions of his probation by using a controlled substance based on defendant's admission he had used marijuana. The court thereafter revoked defendant's probation and sentenced defendant to serve the previously suspended 10-year term in state prison. On appeal, defendant contends that the order revoking his probation must be reversed because the court's finding is not supported by a showing he knowingly used a controlled substance. In the alternative, defendant asserts the probation term prohibiting him from using any controlled substance not prescribed by a medical professional is unconstitutionally vague. We reject defendant's contentions and affirm the judgment.

II

FACTUAL AND PROCEDURAL BACKGROUND²

On February 11, 2016, Barstow police responded to a call involving possible sexual abuse of a 13-year-old female victim. The police contacted the victim and her mother. The victim was scared and upset. She was missing a shoe and her clothing was torn, exposing her bra. She reported that defendant had approached her in a vehicle, said that her sister was in the backseat, and had asked her to help him wake her sister up. When the victim approached defendant's vehicle, he grabbed her by the hair and forced her into the backseat. Defendant then drove to a junkyard. When he stopped at the junkyard, defendant tore off most of the victim's shirt and touched her breast under her bra. Defendant also touched her private area over her pants. The victim eventually fled from the vehicle but defendant caught up to her. After the victim kicked defendant in the groin, she escaped defendant. Defendant was on parole at the time of the incident and wanted for absconding.

Later that day, defendant called the police because he was aware of the victim's report. He stated he was dating the victim's sister and denied any wrongdoing. Defendant stated that the victim's act of getting into his vehicle was voluntary and that she left the junkyard because he was taking too long. Police officers requested that defendant meet them, which he initially refused to do. He later called the police again to arrange a meeting. Defendant was subsequently arrested.

Following a preliminary hearing, on April 25, 2016, an information was filed charging defendant with kidnapping (§ 207, sub. (a); count 1) and forcible lewd act upon a child (§ 288, subd. (b)(1); count 2). The information also alleged that defendant had suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), two prior serious felony convictions (§ 667, subd. (a)(1)), and three prior prison terms (§ 667.5, subd. (b)).

On March 27, 2017, defendant pled no contest to the kidnapping charge and admitted he had suffered two prior prison terms. In return, the remaining allegations were dismissed, and defendant was placed on formal probation for a period of three years on various terms and conditions of probation. Imposition of a 10-year term (eight years for the kidnapping charge, plus one year each for the two prior prison terms) was suspended, pending completion of supervised probation. Among others, defendant was ordered to "Neither use nor possess any controlled substance unless prescribed to you by a medical professional." Defendant agreed to follow the terms and conditions of his probation.

On April 10, 2017, defendant reported to his probation officer while under the influence of alcohol and marijuana. When his probation officer asked defendant if he had used a controlled substance or had been drinking, defendant admitted that he had used marijuana and drank alcohol.

On April 13, 2017, the probation department filed a petition to revoke defendant's probation based upon his failure to cooperate with his probation officer, follow all reasonable directives of probation officers, and refrain from using or possessing any controlled substance unless prescribed by a medical professional.

A probation revocation hearing was held on August 9, 2017. At that time, the court heard testimony from defendant's probation officer, as well as argument from counsel. The prosecutor argued defendant violated the terms of his probation that required him to cooperate with his probation officer, follow all reasonable directives of his probation officer, and not use or possess any controlled substances. Defense counsel asserted that defendant had substantially complied with the terms of his probation. The prosecutor confirmed in response to the trial court's inquiry that marijuana was listed as a controlled substance at the time defendant agreed to his probationary terms and conditions. Defense counsel claimed that defendant had committed no crime under state law. Likening defendant's marijuana use to legal alcohol consumption, defense counsel asserted that "[w]e owe it to the probationers to specifically advise them in some fashion what the rules are" before sending them to prison for their use of marijuana.

Following testimony and argument, the trial court found true that defendant had violated his probation by using a controlled substance based on defendant's admission he had used marijuana. The court did not find true the remaining allegations in the petition to revoke defendant's probation. The court thereafter imposed the previously suspended 10-year sentence and sentenced defendant to state prison.

On August 16, 2017, defendant filed a timely notice of appeal.

III

DISCUSSION

A. Order Revoking Probation

Without any objection, defendant accepted the terms and conditions of his probation and specifically agreed to "[n]either use nor possess any controlled substance unless prescribed to [him] by a medical professional." Relying upon the recent legalization of recreational use of marijuana, defendant argues the trial court's order revoking his probation must be reversed because there was no evidence to support that he knowingly used a controlled substance in violation of its term. (See Prop. 64, § 8.7, approved Nov. 8, 2016, eff. Nov. 9, 2016; Health & Saf. Code, § 11362.1 et seq.) He believes the probation condition prohibiting him from using any controlled substance did not prohibit him from using marijuana. We disagree.

A grant of probation is an act of clemency in lieu of punishment. (People v. Moran (2016) 1 Cal.5th 398, 402.) Probation is a privilege and not a right. A court has broad discretion to impose "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, . . . and generally and specifically for the reformation and rehabilitation of the probationer . . . ." (§ 1203.1, subd. (j); People v. Carbajal (1995) 10 Cal.4th 1114, 1121 (Carbajal); see People v. Olguin (2008) 45 Cal.4th 375, 379.) Moreover, "it is well settled that the trial court has the discretion to impose probation conditions that prohibit even legal activity." (People v. Brooks (2010) 182 Cal.App.4th 1348, 1352 (Brooks).)

"Trial courts are granted great discretion in deciding whether or not to revoke probation." (People v. Kelly (2007) 154 Cal.App.4th 961, 965.) "A court may revoke probation 'if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation . . . .' [Citation.] 'As the language of section 1203.2 would suggest, the determination whether to . . . revoke probation is largely discretionary.' [Citation.] '[T]he facts supporting revocation of probation may be proven by a preponderance of the evidence.' [Citation.] However, the evidence must support a conclusion the probationer's conduct constituted a willful violation of the terms and conditions of probation. [Citation.]" (People v. Galvan (2007) 155 Cal.App.4th 978, 981-982 (Galvan); see § 1203.2, subd. (a).)

On November 8, 2016, California voters passed Proposition 64, which had the effect of "legalizing marijuana for recreational use by adults, subject to various conditions." (City of Vallejo v. NCORP4, Inc. (2017) 15 Cal.App.5th 1078, 1081.) Among other things, Proposition 64 added Health...