P. v. Sisneros

Filed 6/24/08 P. v. Sisneros CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer, Judge. Affirmed as modified.

Benedon & Serlin and Douglas G. Benedon, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Karl T. Terp, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Irene Sisneros appeals after she was convicted of one count of bringing a controlled substance into a correctional facility and one count of possessing a controlled substance in a correctional facility. (Pen. Code, 4573.5, 4573.6.) Defendants appellate counsel filed a brief under authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], asking this court to undertake a review of the entire record. After undertaking this review, we requested counsel to brief the following questions:

1. The trial court imposed a restitution fine of $200, plus a ten percent (10%) administrative fee pursuant to Penal Code section 1202.4. It also imposed a probation revocation fee in the sum of $220 pursuant to Penal Code section 1202.44. Penal Code section 1202.44 requires that, In every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. Was the probation revocation fine here, in the sum of $220, in the same amount as the restitution fine imposed under Penal Code section 1202.4, subdivision (b)?

2. Among the conditions of probation imposed, defendant was required to [k]eep the probation officer informed of place of residence, cohabitants and pets, and give written notice to the probation officer twenty-four (24) hours prior to any changes. . . . (Italics added.) Defense counsel at the time of sentencing failed to object to the imposition of the pets condition, even though the propriety of such a condition is an unsettled issue pending before the California Supreme Court. (See People v. Olguin, review granted Mar. 21, 2007, S149303, and People v. Lopez, review granted Mar. 21, 2007, S149364.) Could the trial court properly impose a condition of probation requiring defendant to [k]eep the probation officer informed of . . . pets, and give written notice to the probation officer twenty-four (24) hours prior to any changes?

For the reasons which follow, we modify the judgment and affirm as modified.

FACTS AND PROCEDUREAL HISTORY

Defendant was a correctional officer employed at Baker Community Correctional Facility, a privately contracted correctional facility operated by Cornell Corrections.

On February 8, 2004, another officer reported defendant for suspicious behavior: Defendant was writing a personal letter when she should have been overseeing inmates and visitors in the visitation room. As a result, defendant was searched; the search turned up a small baggie of marijuana and a marijuana pipe enclosed in a black coin purse. Defendant was charged with one count of bringing drugs into a prison and one count of possession of drugs in a prison.

Defendant claimed that she had found the items in the prison yard and had simply forgotten, or not had time to turn in the contraband.

At trial, the prosecutor presented evidence that the private correctional officers, such as defendant, received training in the handling of contraband. In defendants training class, the trainees had been instructed to secure contraband and take it immediately to a control area, and to notify a supervisor. It is never acceptable to hold onto contraband until the end of a shift. Employees are also specifically instructed never to bring contraband into the prison. Signs posted outside the facility also warn against bringing contraband into a prison.

Defendant claimed that in her orientation class, she was taught to place contraband in the contraband box in the administration building, but she was not instructed to call a supervisor. One of the officers trained in defendants class also affirmed that calling a supervisor was not part of the instruction, but this testimony was rebutted by yet another classmate, Noelle Hanna, who testified that the class had been specifically instructed to secure the area and immediately notify the sergeant or lieutenant on duty.

The prosecutor also introduced the letter defendant was writing in the visitation room. Among other things, defendant had written, Now I want 2 get faded. I feel like drinking tequila and smoking a lil. An officer testified that faded means being under the influence of marijuana, and smoking a lil means to smoke marijuana. Defendant admitted writing the letter.

The jury convicted defendant on both counts. The court denied defendants motion for new trial. At sentencing, it granted probation on count 1, on terms and conditions including a 240-day jail term, a restitution fine, and a stayed probation revocation fine. Imposition of the jail term on count 2 was stayed under Penal Code section 654.

Appointed counsel on appeal has filed a brief under People v. Wende, supra, 25 Cal.3d 436, and Anders v. California, supra, 386 U.S. 738, [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a brief summary of the facts and procedural history, together with a statement finding no arguable issues on appeal. Counsel did suggest some possible areas for this courts review. Defendant was also apprised of her right to file a supplemental brief, setting forth any issues she wishes to raise on appeal. Defendant did not file such a brief.

ANALYSIS

Counsel has suggested, as possible areas for concern, sufficiency of the evidence, denial of defendants Marsden^[1]motion, instructions on general intent, admission of defendants letter into evidence, admission of rebuttal testimony, denial of defendants motion for new trial, and the propriety of defendants parole revocation fine. Defendant has not filed a supplemental brief suggesting any additional issues. This court, after undertaking a review of the entire record, asked counsel to brief the parole revocation fine issue, as well as an issue concerning one of the conditions of probation. We treat the issues seriatim.

I. The Evidence Was Sufficient to Support the Verdict

The evidence was more than sufficient to sustain the convictions. Although defendant testified that she had found the contraband on the grounds of the correctional facility, other evidence suggested that it would be extremely unlikely for that to be the case. Defendant had been trained what to do with found contraband; her actions were inconsistent with her training and with logic. The contraband drugs and pipe were actually found secreted in defendants personal coin purse. Defendants own writings suggested her familiarity with smoking marijuana, and were consistent with an intent to use the drugs personally.

II. Defendants Marsden Motion Was Properly Denied

Under Peoplev.Marsden, supra, 2 Cal.3d 118, an accused represented by appointed counsel may request appointment of a new attorney if there is an irreconcilable conflict such that ineffective representation is likely to result. (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.) Defendant moved for substitute counsel, but her reasons were that her attorney was not interested in my defense because, when she suggested character witnesses on her behalf, the attorney was not sure that such character witnesses would be needed. Defendant fe[lt] he wants me to just plead out. Thats all and get it done and over with. I want to get it done and over with also but not in that way. The attorney explained, first, that defendant had not given him specific names of character witnesses, and second, that pursuing character witnesses was not a strategy he necessarily wanted to rely on. Third, he did not rule out the use of character witnesses, however. He did indicate other lines of defense that he was following up, to defend against the charges substantively.

The court found defense counsels representation competent, and denied the motion.

The decision whether to grant a requested substitution is within the discretion of the trial court; appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would substantially impair the defendants right to effective assistance of counsel. (People v. Roldan (2005) 35 Cal.4th 646, 681.) There was no abuse of discretion here. Defendants complaints were general, except with respect to the investigation of character witnesses. Counsel did not rule out the use of character witnesses, but indicated it was not his primary or sole strategy. There was no conflict requiring appointment of new counsel.

III.The Charged Offenses Were Properly Instructed as General Intent Crimes

Defendant was charged with knowingly bringing a controlled substance and paraphernalia into a correctional facility, and knowingly possessing marijuana in a jail facility. The court instructed that the People were required to prove that, as to count 1, defendant knew she was bringing a controlled substance and/or paraphernalia into a penal institution, and that she knew of the nature of the substance and paraphernalia; as to count 2, the court instructed that the People must prove that defendant knew of the substances presence and of its nature or character as a controlled substance. The People do not need to prove that the defendant knew which specific controlled substance she possessed, only that she was aware of the substances presence and that it was a controlled substance. These instructions were sufficient. The gravamen of the statute proscribes certain acts. When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. (People v. Hood (1969) 1 Cal.3d 444, 456-457.)

IV. The Letter Was Properly Admitted

Evidentiary rulings are reviewed for abuse of discretion. (People v. Redmond (1981) 29 Cal.3d 904, 913.) The court admitted the redacted sentences of defendants letterNow I want 2 get faded. I feel like drinking tequila and smoking a lilover defense objection. The court found the statements relevant on the issues of motive, opportunity and intent. The court properly found it to be relevant and/or probative and not unduly prejudicial in light of the circumstances when this letter was found, when it was written, and when the marijuana, alleged marijuana was located. Intent, absence of mistake, and motive, are all proper reasons to admit evidence of other acts. (Evid. Code,  1101, subd. (b).)

V. Admission of Rebuttal Testimony Was Proper

Over defendants objection, the court allowed witness Noelle Hanna to testify as to the contents of the training course she attended with defendant and another trainee. Both defendant and the other trainee had denied specific instruction in notifying a supervisor when contraband was located. Hannas testimony directly contradicted this testimony. It was a proper response in rebuttal, as it came after the defense case made a specific point that such training was not expressly mentioned in defendants particular training class. Evidence, even if somewhat cumulative, is proper where it repeats or fortifies part of prosecutions case-in-chief after attack by defense evidence. (People v. Graham (1978) 83 Cal.App.3d 736, 741, disapproved on another point in People v. Guiuan (1988) 18 Cal.4th 558, 569.)

VI. The Court Properly Denied the Motion for New Trial

The ground raised for new trial was that the rebuttal witness Hanna was later arrested and discharged for the same or similar offense as defendant, possession of a controlled substance. Hannas arrest occurred after defendants trial, and so qualified as evidence which could not have been discovered, with due diligence, at the time of trial. That Hanna may subsequently also have violated the law, however, would have served only as a matter of impeachment, and did not detract from her specific testimony that the trainee class she had attended had been instructed to notify a supervisor if contraband were found within the prison.

Defendants motion made much of the possibility that a correctional officer bringing contraband into a prison might have offered an alternative explanation for how contraband could be found there. There was never any evidence presented to show, of any certainty, how the contraband defendant allegedly found, might have been found on the grounds. The evidence did show that the correctional officers had received training in contraband detection and control, and that the training classes and materials described various methods by which contraband could be introduced into a correctional facility. Such methods included inmates using dead-drops, introduction by visitors, receiving contraband through the mail, on-premises manufacture, as well as staff members smuggling contraband into a facility. The idea that correctional staff could bring contraband into a facility was not new, and had already been presented, generally, at trial. The critical question here was: Did defendant find the contraband on the ground as she said (however it may have gotten there) or did she bring it in herself? Specific evidence demonstrating that correctional officers do sometimes bring contraband into prison facilities would not have helped defendants case. There is no realistic possibility the verdict would have been any different had such evidence been presented at trial.

In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors:  1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.   (People v. Delgado (1993) 5 Cal.4th 312, 328.) As noted, the evidence would not have rendered a different verdict probable in any regard. The trial court did not abuse its discretion in denying the motion for new trial.

VII. The Parole Revocation Fine Must Be Modified

As a condition of defendants probation, the court ordered her to pay a restitution fine in the amount of $200.00, plus a ten percent (10%) administrative fee . . . . The court also ordered a probation revocation restitution fine imposed in the sum of $220.00 pursuant to [Penal Code section] 1202.44. Penal Code section 1202.44 provides that, In every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.

The amount of the administrative fee, 10 percent, or $20, was not a part of the fine itself; it was a separate and additional fee to cover the costs of administration only. The restitution fine imposed under Penal Code section 1202.4, was $200, not $220. Imposing a probation revocation fine of $220 was not the same as the fine imposed under Penal Code section 1202.4, subdivision (b). The court is directed to modify the judgment to impose a probation revocation fine of $200, not $220. The court is further ordered to modify the abstract of judgment to reflect this correction, and to forward a corrected copy of the abstract to the appropriate correctional authorities.

VIII. The Pet Probation Condition Is Overbroad

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 . . . . [Citation.] (People v. Lent (1975) 15 Cal.3d 481, 486, abrogated by Prop. 8 on another ground as recognized in People v. Wheeler (1992) 4 Cal.4th 284, 290-292.)

The probation condition here requiring defendant to keep her probation officer informed of any pets violates all three criteria set forth in Lent. Defendants ownership or contact with a pet of any kind has no logical connection with the crime of which she was convicted. Having a pet is not in itself criminal. Pet ownership is not indicative of or related to future criminality.

The People argue the condition is directly related to the probation officers ability to effectively and safely supervise defendant. We can only infer that the concern apparently addressed is whether a probationer might have a dangerous animal, such as a vicious attack dog, at her residence. It is already unlawful to keep vicious or dangerous animals, however, and defendants probation conditions already require her to violate no law. (See Food & Agr. Code, 31601 et seq.; Pen. Code, 399.)

Defendants offense had no logical connection to animals or pets. The ownership of pets is a lawful activity; indeed, the harboring of pets has been recognized as an important part of our way of life . . . . (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514; accord, Yuzon v. Collins (2004) 116 Cal.App.4th 149, 163.)

Whether defendant owns a pet is not reasonably related to her future criminality. It is true, however, that if defendant were to acquire a vicious or dangerous animal, it might unduly hamper parole or probation supervision, the purpose of which is to prevent future criminality. A probation condition narrowly tailored to require notice of such animals is therefore appropriate.

We remand the case to modify the probation condition No. 7 to strike the reference to pets in general, without prejudice to the court adding a new narrowly tailored probation condition.

DISPOSITION

The matter is remanded to modify the probation revocation fine to reflect a fine of $200, not $220. The superior court is further ordered to correct the abstract of judgment to reflect the correction, and to forward a copy of the amended abstract to the appropriate correctional authorities. The matter is further remanded to modify probation condition No. 7 to strike the reference to pets in general. The court may impose a new, separate, narrowly tailored condition of probation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

GAUT

J.

MILLER

J.

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^[1]People v. Marsden (1970) 2 Cal.3d 118.