Filed 3/7/22 P. v. Reed CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C093719
Plaintiff and Respondent, (Super. Ct. No. 20F6978)
v.
MARCEL DAMIEN REED,
Defendant and Appellant.
Defendant Marcel Damien Reed pleaded no contest to evading a police officer and
the trial court placed him on probation for two years. Defendant objects to two
conditions of probation: (1) prohibiting him from the use or possession marijuana; and
(2) requiring him to submit to chemical testing at any time. He further argues the trial
court imposed an invalid administrative fee. We shall direct the court to impose
appropriately tailored conditions and vacate the administrative fee.
FACTUAL AND PROCEDURAL BACKGROUND
At about 6:00 a.m. on August 13, 2020, California Highway Patrol (CHP) officers
in a helicopter spotted defendant riding a black sport motorcycle in the Happy Valley
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area. He was traveling at a high rate of speed and passing cars over the double yellow
lines. When he stopped to hide behind a business in town, an Anderson police officer
attempted to contact him. As the officer got out of his car, defendant sped off and went
off-road with his motorcycle. During the subsequent chase, defendant ran through a stop
sign without stopping in front of a CHP officer. The CHP officer activated his
emergency lights and siren, but defendant continued to speed away through two more
stop signs. The ground units broke off the chase while the helicopter continued to follow
the rider. When defendant finally parked, officers approached him at gunpoint and
arrested him. Defendant was driving on a suspended driver’s license.
The prosecution filed a criminal complaint charging defendant with evading an
officer with disregard for public safety and driving on a suspended or revoked driver’s
license. (Veh. Code, §§ 28002, 14601.1, subd. (a).) Defendant pleaded no contest to
evading a police officer and the other charge was dismissed.
Defendant’s probation report shows he has a single prior conviction in 2016 for
violation of section 23109, subdivision (a) of the Vehicle Code–illegal speed contest. In
his probation interview, defendant admitted to drinking six beers every few months and
smoking marijuana and ingesting edible marijuana products every few weeks. Nothing in
his prior criminal history or personal history demonstrates any drug or alcohol problems.
The trial court suspended imposition of defendant’s sentence for two years and
placed him on formal probation. The conditions of probation imposed by the trial court
included requirements defendant conform to the general conditions of probation from the
probation department and submit to chemical testing at the request of any police officer at
any time.
During sentencing, defense counsel raised the following objections:
“[Counsel]: Your Honor, I just want to say a few words about his general
conditions of probation, specifically, Number 10. I think number ten states that he does
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not possess marijuana. I mean, there was no marijuana alleged in this incident, and it’s
not criminal conduct to ingest marijuana.
“THE COURT: You say Number 10?
“[Counsel]: I think it’s Number 10 for general conditions of probation. So I
would just–
“THE COURT: Are you talking about the probation–I don’t have those before
me.
“[Counsel]: I see. Okay. I am looking at the general conditions of probation.
“THE COURT: Yes. Those would be things he can go through with the probation
department. That’s what I told him he needed to do go and do in the next ten days. I
don’t have any objection if he talks to the probation officer and the probation officer is
willing to strike that clause.
“[Counsel]: Okay. And with respect to the chemical testing, I think Your Honor
mentioned chemical testing. I don’t think there was any showing of drugs considered in
the offense. I don’t even think drugs are mentioned in the report, and I don’t think that’s
[sic] been any showing that the defendant engaged in any [illicit] drugs. So I would
request the chemical testing provision also be stricken from–or be stricken as one of these
probation conditions.
“THE COURT: Well, it says here that the defendant does drink alcohol, and he
does use marijuana. Since–he can use marijuana, but he can’t be under the influence of
marijuana if he is driving a vehicle. I mean, if he’s–if he’s in a car driving a vehicle.
“[Counsel]: Right.
“THE COURT: So I’m going to deny that request.”
The trial court orally imposed a restitution fine of $300, but said nothing about an
administrative fee. The clerk’s minutes reflect the imposition of an administrative fee of
10 percent under Penal Code section 1202.4, subdivision (b).
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DISCUSSION
Defendant argues the condition of probation prohibiting him from using or
possessing marijuana is invalid and the trial court’s deferral of this issue to the probation
department was an unauthorized delegation of its authority. He further argues the
imposition of chemical testing at any time as directed by a police officer is invalid.
Finally, he contends the administrative fee imposed by the trial court is unlawful. We
agree the trial court should not have imposed probation conditions barring legal
possession or use of marijuana or requiring unfettered chemical tests. Moreover, we
conclude the trial court should not have delegated the resolution of the marijuana issue to
the probation department. However, given that these general conditions were not before
the trial court, nor are they before us, we will remand the matter for further proceedings
for the trial court to impose appropriate narrowly tailored conditions. Further, we agree
with the parties that the administrative fee should be vacated.
I. Probation Conditions
The colloquy between counsel and the trial court demonstrates the “general
conditions” imposed by the probation department include some restrictions on
defendant’s use or possession of marijuana. We, however, do not know what actual
restrictions the trial court imposed as they were not before the trial court, nor are they in
the record. This is not due to the defendant’s failure as defendant specifically requested
this document be made part of the record on review and was informed that it was not part
of the trial court’s file. For this reason, while, at face value, this condition does not
appear to be appropriate for this defendant and this conviction, we are not willing to
strike this condition outright, and instead will remand for resentencing.
“A sentencing court has broad discretion to fashion appropriate conditions of
probation that facilitate rehabilitation and foster public safety. [Citation.] (People v.
Cruz Cruz (2020) 54 Cal.App.5th 707, 711 (Cruz).) “We review the conditions imposed
for abuse of discretion. [Citation.]” (Ibid.) As instructed by our Supreme Court, “A
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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.] Conversely, a condition of probation which requires or
forbids conduct which is not itself criminal is valid if that conduct is reasonably related to
the crime of which the defendant was convicted or to future criminality.” (People v. Lent
(1975) 15 Cal.3d 481, 486.) All three prongs of this test must be satisfied before we will
invalidate a probation term. (Cruz, at p. 711.)
Here, defendant and the Attorney General agree neither marijuana nor any other
controlled substance had any connection to the crime to which defendant pleaded no
contest or the facts in this case. Nothing in the description of the crime, or the nature of
the conviction, suggests defendant was under the influence of any drug at the time he
rode his motorcycle in a dangerous manner to avoid the police.
Second, defendant and the Attorney General agree the use and possession of
marijuana is legal under California law for personal and medicinal purposes for persons
who are defendant’s age. (Health & Saf. Code, §§ 11362.1, 11362.5.) Thus, the use and
possession of marijuana under the circumstances outlined in those statutes is legal
conduct.
On the final question as to whether this prohibition is reasonably related to
preventing future criminality, the parties disagree. Defendant claims there is no
connection between recreational use of marijuana and future criminality. The Attorney
General argues alcohol and controlled substance use are significant problems when it
comes to driving and defendant’s two convictions for driving fast demonstrate his poor
judgment rendering these conditions appropriate.
Cases uphold probation conditions prohibiting alcohol (another legal substance)
where the defendant’s offense related to drug use or defendant has a substance abuse
problem. (e.g. People v. Smith (1983) 145 Cal.App.3d 1032, 1035.) In Smith, defendant
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was a 26-year-old man who had an extensive involvement in drugs dating back to the
time he was eleven years old and was under the influence of PCP when he was arrested.
(Id. at p. 1034.) He pleaded guilty to possession of PCP. (Ibid.) The court concluded the
probation conditions that defendant not drink any alcoholic beverages and stay out of
places where they are the chief item of sale was “reasonably related to the crime of which
the defendant was convicted and to future criminality.” (Id. at p. 1035.) The nature of
the crime as well as the nature of the defendant’s prior drug use dictated this condition
was appropriate in that case.
This is not one of those cases. Instead, we are guided by Cruz, supra,
54 Cal.App.5th at page 709, where defendant pleaded guilty to taking a vehicle without
the owner’s consent. At the time of his offense, defendant was 21 years old and
occasionally used marijuana. (Ibid.) He had never been accused or convicted of a drug
related offense and did not have a substance abuse problem. (Id. at p. 712.) Based on his
admission he used marijuana, the trial court-imposed conditions of probation prohibiting
appellant’s use or possession of marijuana, and requiring appellant to submit to chemical
testing. (Id. at p. 709.) The appellate court stated there is no requirement of “a ‘nexus’
between the probation condition and the offense, but there must be ‘more than just an
abstract or hypothetical relationship between the probation condition and preventing
future criminality.’ [Citation.]” (Id. at p. 712.) The Attorney General argued
defendant’s disclosed smoking put him at an increased risk category for future criminality
and the trial judge could have reasonably determined it should limit the use of marijuana
to help him exercise good judgment. (Ibid.) In rejecting this argument, the court stated,
“these arguments could be made in every case in which the probationer admits to
occasional use of marijuana, a legal substance. [Citation.] What is missing is some
indication that appellant is predisposed or more likely to commit crimes when under the
influence of marijuana.” (Ibid.) Thus, the court concluded, the drug testing and
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“marijuana-related probation conditions are not reasonably related to preventing
appellant’s future criminality” and struck them. (Ibid.)
Similarly, here, defendant pleaded guilty to the crime of reckless driving of a
motorcycle and evading police officers. There is nothing to suggest defendant was under
the influence of any illicit substance at the time he committed these crimes at 6:00 a.m.
on August 13, 2020. Further, nothing in the record demonstrates defendant committed
prior crimes related to the use or abuse of alcohol or drugs. Defendant’s sole other prior
conviction is for participating in a speed contest. Moreover, the record does not disclose
defendant has any substance abuse problems. We conclude the imposition of a ban on
the legal use of marijuana and subjecting defendant to unfettered testing is not reasonably
related to preventing defendant’s future criminality. Those conditions should not be
imposed.
Respondent suggests the trial court limited the conditions to driving activities only
during the pronouncement of the sentence. The record is not clear on that point and the
minute order does not reflect this limit. A narrowly tailored requirement that defendant
not use marijuana while driving and subject himself to chemical testing when stopped
while driving may be an appropriately tailored probation condition. Any challenge by
defendant to this condition would fail because it is not legal to drive a car when under the
influence of alcohol or drugs. (Veh. Code, § 23152)
We further conclude that the trial court’s deferral of the resolution of the
marijuana prohibition condition to the probation office was in error. When defendant
objected to the probation condition, the trial court responded, “Those would be things he
can go through with the probation department. That’s what I told him he needed to do go
and do in the next ten days. I don’t have any objection if he talks to the probation officer
and the probation officer is willing to strike that clause.” This was not proper.
“Although a trial court may delegate to the probation officer those details that are
necessary to implement the terms of probation,” the trial court may not delegate to a
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probation officer the discretion to determine the nature of the probation. (People v.
Gonsalves (2021) 66 Cal.App.5th 1, 9.) It was and remains the trial court’s job to decide
which probation conditions should be imposed, and it is not proper to leave the question
to the probation department.
On these facts, we conclude probation conditions prohibiting defendant from
generally using or possessing marijuana and being subject to chemical testing at all times
is not reasonably related to defendant’s future criminality. We remand the matter for the
trial court to determine and impose appropriate conditions of probation.
II. Administrative Fee
Defendant challenges the imposition of the administrative fee on his restitution
fine under the recent amendments to subdivision (b) of Penal Code section 1465.9. The
Attorney General concedes the issue. We agree the administrative fee should be stricken,
but for a different reason.
Here, the trial court orally imposed the $300 restitution fine pursuant to Penal
Code section 1202.4, subdivision (b), but did not orally impose the administrative fee.
The trial court’s minute order, however, states the court imposed this restitution fine
“plus an administrative fee of 10%”. Where the sentencing court’s oral pronouncement
of sentence varies from the written minute order, it is the oral pronouncement that
prevails. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Given the trial court did
not orally pronounce imposition of the administrative fee, none has been imposed in this
case, we order the clerk’s minutes corrected to strike the imposition of the administrative
fee. Even if the fee had been imposed, defendant and the Attorney General agree Penal
Code section 1465.9, subdivision (b) provides any such fee is no longer collectible and
the portion of the judgment that reflects the fee should be vacated. We agree as
subdivision (b) to section 1465.9 of the Penal Code now provides: “On and after
January 1, 2022 the balance of any court-imposed costs pursuant to Section . . . 1202.4,
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. . . , as those sections read on December 31, 2021, shall be unenforceable and
uncollectible and any portion of a judgment imposing those costs shall be vacated.
DISPOSITION
We remand the matter for the trial court to impose appropriate probation
conditions. The trial court is directed to correct the clerk’s minutes to remove any
reference to the administrative fee imposed pursuant to Penal Code section 1202.4. In all
other respects, the judgment is affirmed.
\s\ ,
BLEASE, Acting P. J.
We concur:
\s\ ,
RENNER, J.
\s\ ,
KRAUSE, J.
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