P. v. Nieto
Filed 7/26/12 P. v. Nieto CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
HUMBERTO D.
NIETO,
Defendant and Appellant.
A131826
(Napa
County
Super. Ct.
No. CR150910)
Humberto
D. Nieto was placed on probation after pleading guilty to the
probation based on findings he violated its terms and conditions by possessing
marijuana and pepper spray. We affirm
the revocation order.
BACKGROUND
On
June 17, 2010, defendant
pleaded guilty to one count of possession of marijuana for sale. (Health & Saf. Code, § 11359.) As a condition of his plea, defendant was
sentenced to three years of probation and 90 days in jail. The court suspended imposition of sentence
and granted formal probation for three
years.
On
October 15, 2010, the
court summarily revoked defendant’s probation for possession of marijuana
(Health & Saf. Code, § 11357, subd. (b)) and illegal possession of
pepper spray. Following a
defendant to be in violation of probation, and revoked and reinstated his
probation with modifications, including imposition of a 30-day jail sentence. Defendant timely appealed.
Case
On
March 1, 2010, Deputy
Sheriff Mark Horvath made contact with defendant as he was sitting in the
driver’s seat of a white Mercedes automobile parked in a public parking
garage. Deputy Horvath searched the
vehicle’s interior and, in addition to finding marijuana,
found an invoice in defendant’s name for the purchase of a set of tires for the
vehicle from Pueblo Tire Service.
Horvath also seized defendant’s cell phone which contained six
photographs of the Mercedes. Defendant
provided Horvath with two expired medical marijuana cards, dated December 11, 2008 and December 15, 2009.
On
October 13, 2010 at
approximately 9:50 p.m., Officer
Aaron Medina stopped defendant while he was walking on a sidewalk in Napa
and asked him if he was on probation.
After some hesitation, defendant admitted he was. Defendant told Medina
he had a container with marijuana in his hand that did not belong to him, and
that he was on his way to throw it away.
He said the marijuana belonged to his brother. Medina
looked into the container, a white Styrofoam cup, and found marijuana. After defendant was detained, Medina
contacted defendant’s brother and father who denied ownership of the marijuana
and did not provide the officer with any information as to who did own it.
Medina
conducted a probation search of defendant’s residence where he found and seized
a digital scale as well as an expired cannabis card from defendant’s
bedroom. The card expired June 8, 2010. On defendant’s cell phone, Medina
found several text messages pertaining to the purchase of marijuana.
Medina
found a set of keys in defendant’s pocket to the same white Mercedes in which
Deputy Horvath had found defendant in March.
In a search of the Mercedes, parked in defendant’s driveway, Medina
found a canister of pepper spray in the trunk of the car.
Case
Defendant’s
father, David Tapia, testified the Mercedes was his car and he was its
registered owner and primary driver. He
“sometimes” allowed defendant to use his car to fill it up with gas, buy
groceries, or go to work, but defendant also drove two other cars belonging to
Tapia. When asked about the Pueblo Tire
Service receipt found on March 1, Tapia explained he had sent his son to
purchase tires for the Mercedes, but he had paid for it.
Defendant
testified he was not aware of any pepper spray in the trunk of his father’s
Mercedes, had not purchased or used pepper spray, and had not opened the car’s
trunk for nine months. He testified he
and his “whole family” use the Mercedes, and he had been ticketed for speeding
both in the Mercedes and in his family’s other cars. Regarding the Pueblo Tire Service invoice,
defendant testified he had gone with his father to get a quote and, since he
spoke English, he gave the salesman his name.
His father later sent him back with cash to pay for the tires.
Defendant
testified he had obtained medical cannabis cards at least three times going
back to 2007, primarily for migraines and for back pain stemming from a car
accident. Each time he obtained a
cannabis card, it was from a new doctor.
Defendant testified the medical conditions still existed at the time of
the hearing.
Defendant
conceded on cross-examination he was still smoking marijuana in August and
possibly September 2010, but stopped using the drug before October 2010. That was the reason he tested positive for
marijuana at the time of his arrest on October 13, 2010. He was also exposed to second-hand marijuana
smoke during this period.
II. DISCUSSION
Defendant
contends the trial court erred in (1) rejecting his defense under the
Compassionate Use Act of 1996 (CUA) (Health & Saf. Code, § 11362.5 et
seq.); and (2) finding he possessed the pepper spray found in the Mercedes
trunk.
Under
Penal Code section 1203.2, subdivision (a), “a court is authorized to revoke
probation ‘if the interests of justice so require and the court, in its
judgment, has reason to believe . . . that the person has violated
any of the conditions of his or her probation. . . .’ ” (People
v. Rodriguez (1990) 51 Cal.3d 437, 440, fn. omitted (Rodriguez).) “A grant of
probation is not a matter of right; it is an act of clemency designed to allow
rehabilitation. [Citations.] It is also, in effect, a bargain
. . . with the convicted individual, whereby the latter is in essence
told that if he complies with the requirements of probation, he may become
reinstated as a law-abiding member of society.”
(People v. Chandler (1988) 203
Cal.App.3d 782, 788 (Chandler).)
The
prosecution must establish a violation of probation by a
the court’s determination on appeal for an abuse of discretion. (Rodriguez,
supra, 51 Cal.3d at pp. 444–445.)
“ ‘[O]nly in a very extreme case should an appellate court
interfere with the discretion of the trial court in the matter of denying or
revoking probation. . . .’ ”
(Id. at p. 443.) The trial court’s discretion will not be
reversed unless it was exercised in an arbitrary or capricious manner. (Chandler,
supra, 203 Cal.App.3d at p. 788.)
Defendant has the burden of establishing an abuse of discretion. (People
v. Urke (2011) 197 Cal.App.4th 766, 773.)
When the finding of a violation turns on the weighing of
substantial evidence rule. (
840, 848.)
B. CUA Defense
Defendant
contends he raised a reasonable doubt as to the existence of facts providing
him a defense under the CUA. He cites
the following evidence in support of that proposition: (1) Officer Medina’s testimony he found an
expired cannabis recommendation card among defendant’s possessions; and (2)
defendant’s testimony he had been issued medical marijuana recommendations for
back pain and migraines since 2007, had never been refused a card for these
conditions, and the conditions were ongoing.
According to defendant, no more was required to establish his defense as
a qualified patient under the CUA.
We
agree with defendant that his lack of a valid identification card at the time
of his arrest did not in and of itself preclude him from offering a CUA
defense. The problem for defendant in this
case is three-fold. First, he offered no
medical evidence, such as the testimony of a qualified physician who had seen
him before his arrest, that a physician recommendation for him to use marijuana
for medical purposes—oral or written—was
still operative at the time of his October 2010 detention. Defendant’s lay testimony that he still had
the conditions for which marijuana had been recommended in the past, by itself,
does not close the evidentiary gap.
Second, defendant failed to offer any evidence he possessed the
marijuana found on his person on October 13, 2010 for medical purposes, as required by section 11362.5,
subdivision (d) of the CUA. To the
contrary, he told Officer Medina the marijuana did not belong to him and he
intended to dispose of it rather than consume it for any medical purpose. At trial, defendant testified he had stopped
using marijuana for any purpose before October 1, 2010. Third, this was a probation revocation
proceeding, not a criminal trial. Even assuming for the sake of analysis
defendant produced enough evidence to put his CUA defense before a jury, the
issue in this case was not his right to assert the defense, but whether
substantial evidence supports the trial court’s finding the defense did not
apply.
Defendant
argues at some length that People v.
Windus (2008) 165 Cal.App.4th 634 (Windus)
casts doubt on the trial court’s decision.
We do not agree.
expired cannabis card is the only medical evidence a defendant needs in order
to be allowed to present a CUA defense to a jury. The issue in Windus was whether the testimony
of the defendant’s doctor—given at an Evidence Code section 402
hearing on whether the defendant could proceed with a medical marijuana
defense—was or was not sufficient to entitle the defendant to proceed with the
defense. (Windus, at p. 640.) The
trial court had accepted that the defendant was a qualified medical marijuana
patient with a valid recommendation for the use of marijuana to treat his
condition, but found insufficient evidence the quantity of marijuana found in
the defendant’s possession was reasonably related to his medical needs. (Id.
at p. 639.) The specific question
decided by the Court of Appeal in Windus
was whether the post-arrest testimony of the defendant’s doctor at the section
402 hearing about the extent of the defendant’s medical needs was in fact
sufficient to allow the defendant to present his CUA defense to the jury. (Windus,
at p. 640.) Because the physician
had seen the defendant twice prior to his arrest and once a year afterward, and
had originally recommended marijuana for his back pain, the Court of Appeal
found the physician’s testimony as to the defendant’s condition and medical
need for marijuana at the time of his arrest was sufficient. (Id.
at pp. 641–642.) At the same time,
mere evidence of post-arrest approval of such use by a physician is
be presented. (Windus, at p. 642, discussing People v. Rigo (1999) 69 Cal.App.4th 409.) We find nothing in Windus to support the view that a defendant’s expired cannabis card is sufficient to warrant jury consideration
of such a defense in the absence of any
establishing a valid oral recommendation was in force on the day of arrest.
Defendant
maintains the following passage from Windus
suggests otherwise: “[W]e see nothing in
the [CUA] that requires a patient to periodically renew a doctor’s
recommendation regarding medical marijuana use.
The statute does not provide . . . that a recommendation
‘expires’ after a certain period of time.”
(Windus, supra,
165 Cal.App.4th at p. 641.) This
passage—responding to the Attorney General’s argument that the defendant’s
recommendation “ ‘had clearly expired’ ” because it was more than
three years old—merely points out the CUA
itself imposes no automatic expiration period on a doctor’s recommendation,
whether oral or written. (Windus, at
p. 641.) No such claim was made in this case. Here, defendant’s cannabis cards, all
obtained from different doctors, had expired by their own terms. No
evidence was presented—either through medical testimony or documentation signed
by a doctor—that defendant had a valid oral or written medical recommendation
for his use of medical marijuana as of the date of his arrest. Nothing in Windus suggests evidence of an expired recommendation is sufficient
to allow him to proceed with a medical marijuana defense. Equally, nothing in Windus suggests a defendant’s own lay testimony suffices to show he
still had a medical need for cannabis after his doctor’s recommendation had
expired by its own terms.
Another
passage in Windus states: “Where, as here, the accused possesses
marijuana and has a physician’s recommendation that he use the drug to treat an
ailment set forth in the CUA, he is entitled to present a CUA defense to the
jury.” (Windus, supra, 165 Cal.App.4th at p. 641.) The “physician’s recommendation” required by
recommendation in effect on the date of
arrest. Eliminating that requirement
would mean a defendant, having once obtained a written medical marijuana
recommendation good until a specified date, remains covered by the protections
of the statute indefinitely as long as he continues to use marijuana for
medicinal purposes. Nothing in
an interpretation of the compassionate use defense.
As
discussed earlier, even assuming defendant’s expired recommendations were still
good on the date of his arrest, he would still not qualify for a CUA
defense. Health and Safety Code
section 11362.5, subdivision (d) provides in pertinent part: “Section 11357, relating to the
possession of marijuana . . . shall not apply to a patient
. . . who possesses . . . marijuana for the personal medical
purposes of the patient upon the written or oral recommendation or approval
of a physician.” (Italics added.) By his own admission, defendant did not
possess the marijuana found on him in October 2010 for his personal medical
use. According to his testimony, he had
stopped using marijuana for any purpose a month or two earlier. He would therefore not come within the
protection of the CUA even if his medical recommendation had not expired.
Finally,
the issue in this probation proceeding, unlike in Windus, was not whether defendant had a right to present a CUA
defense to the trier of fact, but whether the trier of fact found the defense
supported by a preponderance of evidence.
Here, defendant had no valid, unexpired identification card. He offered no physician testimony evidencing
an operative recommendation for him to use marijuana for medical purposes. He offered no testimony he was even using
marijuana for a personal medical purpose at the time of his arrest. In these circumstances, the trial court did
not abuse its discretion in finding defendant failed to prove his possession of
marijuana in October 2010 was lawful.
Because
defendant’s unlawful possession of marijuana justified the revocation of his
probation, it is unnecessary for us to decide whether substantial evidence
supported the trial court’s pepper spray possession finding.
DISPOSITION
The
probation revocation order is affirmed.
_________________________
Margulies,
J.
We concur:
_________________________
Marchiano, P.J.
_________________________
Banke, J.
name="_ftn1" title="">[1]
The marijuana found in the vehicle on March 1 was the basis for the
possession-for-sale charge to which defendant pleaded guilty on June 17.
