Filed 2/5/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Tehama)
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THE PEOPLE, C075983
Plaintiff and Respondent, (Super. Ct. No. NCR77911)
v.
JOSE GUADALUPE MUNOZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tehama County, C. Todd
Bottke, Judge. Affirmed.
Gabriel Bassan, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Senior Assistant Attorney
General, Julie A. Hokans and Jeffrey A. White, Deputies Attorney General, for Plaintiff
and Respondent.
Defendant Jose Guadalupe Munoz violated probation by admittedly driving on a
suspended license and possessing methamphetamine. The trial court sentenced him to
three years in county jail followed by three years of mandatory supervision subject to
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terms and conditions including that he participate in psychological or psychiatric
counseling/treatment if directed to do so by his probation officer, and that he sign any
release of information necessary to allow the exchange of information between his
probation officer, counselors, and therapists.
On appeal, defendant contends the condition requiring submission to psychiatric
counseling is invalid, and the condition requiring the release of confidential mental health
information is overbroad. He urges these claims are subject to appellate review despite
his failure to object below.
We conclude defendant forfeited his claims by failing to object to imposition of
either mandatory supervision condition. We further conclude defense counsel was not
ineffective for not objecting to these conditions. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 18, 2009, defendant sold 0.4 grams of methamphetamine within 1,000
feet of Maywood Middle School, which was in session at the time.
On December 10, 2009, defendant was charged with three counts of sale of a
controlled substance. The information alleged that, as to two of the three counts, the sale
of the controlled substance took place within 1,000 feet of Maywood Middle School.
On April 5, 2010, defendant pled guilty to one count of sale of a controlled
substance and admitted the allegation that he did so within 1,000 feet of Maywood
Middle School in exchange for no state prison at the outset.
On June 7, 2010, the trial court suspended imposition of sentence and placed
defendant on three years of formal probation subject to “the usual terms and conditions as
followed by this court” and “the other additional terms and conditions as set forth in the
Probation Officer’s report,” including 180 days in county jail with credit for 127 days of
time served. The “other additional terms and conditions” in the probation report included
conditions that “defendant shall participate in and complete a psychological or
psychiatric counselling/treatment [sic] program, including a residential treatment
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program, if directed to do so by the probation officer, at his own expense,” and that
“defendant shall sign any necessary release of information documents to allow free
exchange of any and all information amongst the probation officer, any counsellors, [sic]
and therapists” (hereafter, the challenged conditions). The order granting probation, filed
June 9, 2010, reiterated verbatim the challenged conditions. Defendant signed the
probation order acknowledging its contents and agreeing to comply with the stated terms.
On June 23, 2010, the district attorney filed a petition for revocation of probation
alleging defendant tested positive for methamphetamine. Defendant admitted the alleged
violation at the July 6, 2010, hearing. The trial court revoked and reinstated probation
pursuant to the original terms and conditions, modified to include fines and 90 days in
county jail without credit for time served. The July 14, 2010, order reinstating probation
reiterated verbatim the original terms and conditions of probation, including the
challenged conditions. Defendant acknowledged receipt of the order and agreed to
strictly comply with all of the terms and conditions thereof.
On February 8, 2013, the district attorney filed a second petition for revocation of
probation alleging defendant tested positive for marijuana. At the April 2, 2013, hearing
on the petition, defendant admitted the alleged violation. The court revoked and
reinstated probation (extended for an additional year) pursuant to the original terms and
conditions previously imposed, modified to include fines, an additional 60 days in county
jail without credit for time served, and 40 hours of community service. The July 3, 2013,
order reinstating probation reiterated verbatim the original terms and conditions of
probation, including the challenged conditions.
On July 2, 2013, the district attorney filed a third petition for revocation of
probation alleging defendant drove a vehicle on a suspended license and possessed
methamphetamine. At the January 22, 2014, hearing on the petition, defendant admitted
the alleged violations.
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On February 24, 2014, the trial court terminated probation and sentenced
defendant to an aggregate term of six years, with three years to be served in county jail
and the remaining three years to be served under mandatory supervision pursuant to
Penal Code section 1170, subdivision (h)(5)(B). The court adopted “the remaining terms
and conditions as listed [in the probation report filed February 19, 2014] at [pages] 12
through 15,” including the challenged conditions. Defense counsel waived formal
reading of the terms and conditions, which the court “adopted in their entirety as if read
into the record and incorporated into the judgment and sentence.”
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the trial court abused its discretion by imposing the
mandatory supervision condition requiring him to submit to psychiatric counseling
because, pursuant to People v. Lent (1975) 15 Cal.3d 481, the condition has no
relationship to the crime for which he was convicted and requires conduct not reasonably
related to future criminality. He further contends the related mandatory supervision
condition requiring the release of confidential mental health information should be
limited to require only information “minimally necessary” to assure he is not in violation
of his mandatory supervision requirements. Acknowledging his failure to object below,
defendant asserts the forfeiture rule does not apply here. Alternatively, he asserts that,
should we find the forfeiture rule does apply, we must conclude his trial counsel was
ineffective for failing to object in the absence of any tactical or other reason to do so.
I
Forfeiture Of Mandatory Supervision Condition Issue
In Lent, the California Supreme Court held that “[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 itself criminal, and (3) requires or
forbids conduct which is not reasonably related to future criminality . . . .’ ” (People v.
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Lent, supra, 15 Cal.3d at p. 486.) All three criteria must be satisfied to invalidate a
mandatory supervision condition. (People v. Martinez (2014) 226 Cal.App.4th 759, 763-
764.)
The failure to object to a probation condition on Lent grounds in the trial court
forfeits the claim on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237; see In re
Sheena K. (2007) 40 Cal.4th 875, 881-882.) This forfeiture rule applies even to
constitutional challenges of probation conditions if the constitutional question cannot be
resolved without reference to the particular sentencing record developed in the trial court.
(Sheena K., at p. 889.) While we have said that mandatory supervision is more like
parole than probation (People v. Fandinola (2013) 221 Cal.App.4th 1415, 1422), it is
similar to probation in the sense that the terms and conditions of the defendant’s release
are ordered by the court. Thus, the rule of forfeiture that applies to probation conditions
and the underlying rationale for the rule, applies to a trial court’s order of conditions of
mandatory supervision.
Defendant claims the forfeiture rule does not apply where, as here, “the alleged
error involves a pure question of law, which can be resolved on appeal without reference
to a record developed below.” (People v. Williams (1999) 77 Cal.App.4th 436, 460.)
As the People correctly argue, defendant’s reliance on the fact-based factors in
Lent negates his claim that the issue is purely a question of law and thus not subject to the
forfeiture rule. In applying the Lent factors, and particularly in asserting the mandatory
supervision condition requiring psychiatric treatment has no relationship to the facts and
is not reasonably related to future criminality, defendant references the specific facts of
his current crime of “selling a tiny amount of methamphetamine to an informant in front
of the trailer park where he lived,” and makes general reference to his previous criminal
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record which includes use of marijuana and methamphetamine and repeated arrests for
driving under the influence. In light of those facts and circumstances, he claims, the
“only conceivable basis” for imposition of the challenged condition is that it is “part of
[a] generic one-size-fits-all set of conditions that might be applied to every felony
probationer and supervisee.” As these claims demonstrate, defendant’s challenge is to
the reasonableness of the mandatory supervision conditions and whether the facts of his
current offense and his prior criminal conduct support imposition of those conditions.
Defendant responds that because his claims rest on uncontested facts, the claims
can be decided as a matter of pure law, citing People v. Masotti (2008) 163 Cal.App.4th
504. He neglects to mention however that, unlike this case, the issue in Masotti was “a
jurisdictional question of pure law” -- whether the trial court could grant a new trial
based on grounds not raised in the new trial motion. (Masotti, at p. 508, italics added.)
Masotti is not helpful to defendant.
In any event, given defendant’s reliance on the Lent factors, the determination
whether the mandatory supervision condition requiring psychiatric treatment has any
relationship to defendant’s offense and background or is reasonably related to
defendant’s future criminality, and whether the related condition requiring release of
information is overbroad, requires an analysis of the facts via “ ‘ “reference to the
particular sentencing record developed in the trial court.” ’ ” (In re Sheena K., supra,
40 Cal.4th at p. 889.) As such, defendant’s failure to object in the trial court on those
grounds forfeits the claim on appeal. (Ibid.)
Next, defendant claims the forfeiture rule is inapplicable because the challenged
conditions “were not set forth on the record” and there is no indication either he or his
counsel “had been given prior notice of what those conditions were.” As such, he argues,
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he had no meaningful opportunity to object. (People v. Scott (1994) 9 Cal.4th 331, 356.)
This argument is specious and we reject it as such. The record is clear that, at the time of
the initial grant of probation in June 2010, defendant knew of and agreed to the
challenged conditions, which were included in the probation report and the subsequent
order granting probation. Defendant acknowledged and agreed to those same conditions
again when probation was revoked and reinstated in July 2010. The challenged
conditions were reiterated verbatim in the July 2013 order reinstating probation. Finally,
at the February 24, 2014, sentencing hearing, the trial court adopted “the remaining terms
and conditions as listed [in the probation report filed February 19, 2014] at [pages] 12
through 15,” including the challenged conditions. Defense counsel, having given no
indication of not having received or reviewed the probation report, waived formal reading
of the terms and conditions. Without objection, the court adopted those terms and
conditions “in their entirety as if read into the record and incorporated into the judgment
and sentence.” From this record, there can be little doubt defendant had a meaningful
opportunity to object to any or all of the terms and conditions imposed at the sentencing
hearing.
II
Ineffective Assistance Of Counsel
To establish ineffective assistance, defendant bears the burden of establishing both
that counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms and, absent counsel’s error, it is reasonably probable that
the verdict would have been more favorable to him. (Strickland v. Washington (1984)
466 U.S. 668, 688, 694 [80 L.Ed.2d 674, 694, 698]; People v. Kipp (1998) 18 Cal.4th
349, 366.) If a defendant fails to establish either component, the ineffective assistance
claim fails and we need not address the other component. (Strickland, at p. 697
[80 L.Ed.2d at p. 699]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
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In reviewing a claim of ineffective assistance, we accord great deference to trial
counsel’s reasonable tactical decisions (People v. Weaver (2001) 26 Cal.4th 876, 925;
People v. Freeman (1994) 8 Cal.4th 450, 484) and reverse “ ‘only if the record on appeal
affirmatively discloses that counsel had no rational tactical purpose for his act or
omission.’ ” (People v. Frye (1998) 18 Cal.4th 894, 980.) “An attorney may choose not
to object for many reasons, and the failure to object rarely establishes ineffectiveness of
counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.)
Here, contrary to defendant’s assertion, the record does not affirmatively disclose
counsel had no rational tactical purpose for not objecting to the challenged mandatory
supervision conditions. Defendant was exposed to a maximum penalty of nine years.
His prior record included numerous incidents of driving under the influence. Despite
having been afforded numerous opportunities to better himself, he repeatedly violated
probation by, among other things, possessing and using controlled substances. Both the
probation officer and the trial court expressed concern over defendant’s inability to
comply with the previous grant of probation or resist the urge to commit new offenses.
The trial court imposed a six-year term (the middle term for the felony drug conviction,
plus three years for the enhancement), and ordered that defendant serve half of that six-
year term in custody and the remaining half on mandatory supervision subject to the same
terms and conditions previously imposed. One obvious tactical reason for not objecting
to the challenged conditions is that defendant and his counsel could well have determined
there was little to be gained, and much to be lost, given his exposure to a greater penalty
and significantly more time in custody.
Because we find defendant has not met his burden with respect to the first prong
of the test, we need not address the second. (Strickland v. Washington, supra, 466 U.S. at
p. 697 [80 L.Ed. 2d at p. 699].) We reject defendant’s claim of ineffective assistance of
counsel.
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DISPOSITION
The judgment is affirmed.
ROBIE , J.
We concur:
NICHOLSON , Acting P. J.
MURRAY , J.
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