PEOPLE v. WAUGH

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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of The State of California, Plaintiff and Respondent, v. Bruce Anthony WAUGH, Defendant and Appellant.

No. E009304.

Decided: June 16, 1993

Robert J. Russo, Van Nuys, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Steven H. Zeigen, Supervising Deputy Atty. Gen., and Carl H. Horst, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

After a jury had convicted defendant of two criminal offenses, defendant was placed on probation under certain terms and conditions.   Among those terms was that defendant was to serve 180 days in custody with a specific time to report to commence the service of the jail term.   Defendant did not appear as directed and a later summary probation violation proceeding resulted in defendant being recommitted to custody for a period of 270 days.   Defendant assigns error to the summary nature of the violation proceedings.   We agree with defendant that he was denied adequate notice and reverse the determination that defendant had violated his probation and subsequent resentencing.

FACTS

A seamless rendition of the facts underlying defendant's conviction after trial by jury is unwarranted based upon the nature of the errors asserted on appeal.   Suffice it to observe that defendant was convicted of transportation of marijuana (Health & Saf.Code,1 § 11360, subd. (a)) and possession of in excess of 28.5 grams of marijuana (§ 11357, subd. (c)).  The charges stemmed from a vehicle search where defendant was observed stuffing a brown paper sack containing three-fourths of a pound of marijuana under the dash assembly of a vehicle in which he was a passenger.

Following his conviction, on March 1, 1991, he was granted probation under certain terms and conditions, among which was the term that defendant serve a period of 180 days in custody.   Defendant was given a stay until 4 p.m. to report and commence service of the custody commitment.   Defendant failed to appear.   On March 5, 1991, defendant reappeared in court and, following a hearing on the matter, defendant's probation was reinstated upon the original terms and conditions of probation, however, the custody term was modified and increased to 270 days.   Defendant's terms and conditions of probation also included a term that defendant was prohibited from selling his blood or blood plasma.

1. Did the Summary Nature of the Violation of Probation Proceeding Violate Defendant's Right to Due Process?

Defendant first argues that he was afforded no notice of the violation of probation, a due process violation.   We are persuaded that defendant's argument has merit.   Defendant was ordered to return to commence his custody commitment on Friday at 4 p.m. but did not do so.2  When defendant reappeared before the court the next Tuesday, the following colloquy occurred: 3

“THE COURT:  The Court considers this a constructive or implied violation of probation.   The Court on its own motion will revoke probation—reinstate probation and add a modified Term One.

“Mr. Waugh, I thought I made it real clear to you when you were in court on the 1st of March and you were sentenced that this court felt you just didn't seem to understand the seriousness.

“THE DEFENDANT:  I did, sir.

“THE COURT:  Oh, I don't think so.   And I believe that your conduct in not surrendering yourself is symptomatic of your lack of insight into your present state of affairs and your future.   I hope you can make probation, but under the circumstances, it's going to be an additional penalty because of your violation of probation that the Court just found.   And that is, I'm going to add three months to Term One.   Okay?  So you'll understand and everybody else will understand when you promise to be in court for surrender when you're given a break, you do it.   Period.  Unless you're dead.

“Term One is going to be increased to serve two hundred seventy days in the county jail, and the credits for time served will be seven actual days and․”

In Black v. Romano (1985) 471 U.S. 606, 105 S.Ct. 2254, 85 L.Ed.2d 636, the United States Supreme Court reiterated that due process as it relates to violation of probation proceedings requires that “final revocation of probation must be preceded by a hearing․  The probationer is entitled to written notice of the claimed violations of his probation;  disclosure of the evidence against him;  an opportunity to be heard in person and to present witnesses and documentary evidence;  a neutral hearing body;  and a written statement by the factfinder as to evidence relied on and the reasons for revoking probation.   [Citations.]”  (Id., at pp. 611–612, 105 S.Ct. at p. 2258.)

 The Attorney General's argument is twofold.   First, it is argued that because defendant never objected to lack of notice or requested a continuance, defendant has waived the issue on appeal.   Second, the Attorney General urges that the proceedings complied with due process requirements.   As to respondent's first contention, that defendant has waived the issue on appeal by failing to object, we decline to agree.   Respondent relies on two cases.

In People v. Hawkins (1975) 44 Cal.App.3d 958, 119 Cal.Rptr. 54, the court noted “Neither the defendant nor his counsel objected that they had inadequate notice of the charges and thus, absent objection, we will not imply inadequate notice from a record which is silent as to exactly how the defendant was given notice of the charges.”  (Id., at p. 967, 119 Cal.Rptr. 54.)   Thus, Hawkins is readily distinguishable because in this matter, it is clear that the first notice of violation of probation proceedings came from the court at the same time it summarily found the defendant in violation.   The record in this matter, unlike Hawkins, is clear that no notice was given.

In People v. Felix (1986) 178 Cal.App.3d 1168, 224 Cal.Rptr. 279, the defendant was the subject of a violation of probation hearing based upon allegations of new law violations.   During the course of the hearing, the defendant's probation officer was called to testify and examined as to defendant's poor performance on probation.   When defendant objected to this inquiry, the court overruled the objection but offered the defendant additional time to prepare.   On appeal defendant claimed that he had inadequate notice as to the nature of the allegations of violation of probation based upon the additional information taken by the court from the defendant's probation officer.   There, the court found the issue had been waived because the court had offered the defendant an opportunity for a continuance to prepare a defense to the additional allegations, when the defendant refused the court's offer he also waived an opportunity to assert the additional evidence as error on appeal.  (Id., at p. 1172, 224 Cal.Rptr. 279.)   Unlike Felix, this case involves no additional offers of time to prepare a defense to the allegation of probation violation raised moments earlier.   That the defendant did not object or request a continuance under these circumstances does not bar his request for appellate review of this issue.

Respondent's second argument deals with whether by mounting a defense to the charge of failing to appear and offering evidence and argument on the charge of failure to appear that defendant cannot now complain of lack of notice.   While the argument has some merit, we are not persuaded.   In People v. Felix, supra, 178 Cal.App.3d 1168, 1171, 224 Cal.Rptr. 279, the court noted “some flexibility in the manner in which due process guarantees are met is acceptable [in probation revocation proceedings].”   Here, there is no hint that this was even a probation violation proceeding until after defendant attempted to explain why he failed to appear.   While we are uncertain what, if any, additional documentation defendant could have provided had he been placed on notice of the nature of the hearing, that it was a violation of probation hearing, we cannot find from this record that defendant received “equivalent due process safeguards.”  (Id., at p. 1172, 224 Cal.Rptr. 279.)

 In deciding the merits of this matter, we find the case of People v. Mosley (1988) 198 Cal.App.3d 1167, 244 Cal.Rptr. 264, to be instructive.   In that case the defendant was on probation and charged with a new criminal offense.   It was agreed that the violation of probation hearing would be conducted in conjunction with the trial.   In addition, the violation was based upon the allegation of a law violation.   During the course of the trial, evidence developed that defendant had been consuming alcoholic beverages, notwithstanding a term of probation prohibiting such conduct.   After the jury had returned a not guilty verdict of the substantive offense, the court declared that it was not convinced by clear and convincing evidence of the law violation but found that defendant had violated his probation by consuming alcohol.   On appeal, the court reversed the finding of violation.   The court noted, “Here, the record does not disclose that Mosley was offered additional time to answer the unnoticed allegation on which his revocation was based.   The evidentiary phase of the hearing was completed before either he or the court was aware of the charge which ultimately constituted the basis for revocation.   Mosley had no opportunity to prepare and defend against that allegation․  Because the trial court failed to provide ‘a constitutionally sufficient safeguard of appellant's due process rights and [preserve] the fundamental fairness of the proceedings,’ Mosley was denied due process.”  (Id., at p. 1174, 244 Cal.Rptr. 264.)

So it is in this case.   Because defendant was deprived of the most basic due process rights, we are compelled to reverse the finding of probation violation and the additional term of confinement added to term one.

2. Defendant Next Contends in the Absence of a Rational Connection to Criminal Conduct, the Term and Condition of Probation Prohibiting Defendant from Selling his Blood or Blood Plasma is Unreasonable.

 At the time of sentencing, defendant, as a condition of probation, was ordered to “not sell or donate his blood or blood plasma.”   Defendant did not object to the imposition of that term of probation.   Again, the Attorney General contends that defendant has waived his ability to present this issue on appeal because of his failure to object at the time of its imposition.   However, this court has held that even in the absence of such objection, a challenge to a probation term alleged to be beyond the jurisdiction of court is not waived on appeal by such a failure to object.  (People v. Kiddoo (1990) 225 Cal.App.3d 922, 925–926, 275 Cal.Rptr. 298.)

Since our decision in Kiddoo, the California Supreme Court has considered this issue in People v. Welch (1993) 5 Cal.4th 228, 19 Cal.Rptr.2d 520, 851 P.2d 802.   In Welch, the Supreme Court determined that an objection is required to preserve a challenge to the reasonableness of a probation term in order to obtain appellate review.   However, the court there found that because prior to the Welch decision, no such objection was required, that the decision would not be applied retroactively.   Inasmuch as Welch was obviously decided well after the probation hearing in this matter, its objection and waiver rule does not apply to this case.  (Id., at p. 237, 19 Cal.Rptr.2d 520, 851 P.2d 802.)   We therefore address the merits of defendant's second contention.

 Our Supreme Court has held that “probation conditions which regulate conduct ‘not itself criminal’ must be ‘reasonably related to the crime of which the defendant was convicted or to future criminality.’  ( [People v. Lent (1975) ] 15 Cal.3d 481, 486 [124 Cal.Rptr. 905, 541 P.2d 545].)   As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or ‘ “exceeds the bounds of reason, all of the circumstances being considered.” ’  (People v. Warner [1978] 20 Cal.3d 678, 683 [143 Cal.Rptr. 885, 574 P.2d 1237] quoting People v. Giminez (1975) 14 Cal.3d 68, 72 [120 Cal.Rptr. 577, 534 P.2d 65.)”   (People v. Welch, supra, 5 Cal.4th 228, 233–34, 19 Cal.Rptr.2d 520, 851 P.2d 802.)

In this case, we have reviewed the probation officer's evaluation of defendant which was relied upon by the court in imposing the terms and conditions of probation.   We find that defendant had been a long-time drug user although intravenous drug use had not surfaced as an issue up to that point.  {Prob. rep. 5.}   Defendant's chronic use of marijuana in our view places him squarely in an at-risk category to abuse other control substances including those which are injectable.   Injectable controlled substances have been documented as a substantial factor in the spread of the HIV virus.  (People v. Henson (1991) 231 Cal.App.3d 172, 182, 282 Cal.Rptr. 222.)

We also believe the prohibition against selling or donating blood is a reasonable term and condition of probation under the circumstances because of the fact that it allows the probation officer an opportunity to monitor needle marks which may appear on defendant's arm as to the source of those marks, i.e., a defendant cannot claim that needle marks left from an injection of controlled substances were in fact caused by blood/plasma sales or donations.   Based upon the facts and circumstances that surround this particular case, we find that the term and condition of probation prohibiting defendant from selling or donating his blood or blood plasma to be reasonable within the meaning of People v. Lent, supra, 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545.

DISPOSITION

The judgment of conviction is affirmed.   The order finding defendant in violation of probation is reversed.   The case is remanded for further proceedings consistent with the view expressed herein.

I concur in that portion of the majority opinion and disposition which affirms the judgment of conviction, reverses the order revoking probation and remands for further proceedings based on defendant being deprived of his due process rights under the Morrissey safeguards.

I do, however, respectfully dissent as to that portion of the majority opinion which concludes that the probationary condition that defendant “not sell or donate his blood or blood plasma” (subject condition) is a reasonable condition and, therefore, valid.   In my view, that condition is unreasonable.   Defendant was convicted of transporting and possessing only marijuana.   His personal history shows only marijuana use, and the record does not show that marijuana can be used as an intravenous drug.   I therefore conclude that the subject condition is invalid and should be stricken.

A court may impose probationary conditions which are statutorily mandated or recommended in certain cases, or which are within the sentencing court's general power to impose any “reasonable” condition that it “may determine” is “fitting and proper to the end that justice may be done ․” (Pen.Code, § 1203.1 1 ;  People v. Welch (1993) 5 Cal.4th 228, 233, 19 Cal.Rptr.2d 520, 851 P.2d 802.)

Here, there appears to be no question that the subject condition was imposed under the sentencing court's “general authority” as authorized by section 1203.1.   The test for the reasonableness and concomitant validity of a probation condition is found in People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545, which held:  “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].   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.”

A review of the record, including the evidence at trial and the probation officer's report, discloses that defendant is a frequent user of marijuana, a substance which is smoked or ingested orally, not intravenously.   As the majority admits, there is no evidence that defendant did or does use controlled substances which are normally, or which may ever be, injected into one's bloodstream.   Thus, there is no evidentiary nexus between the crimes of which defendant was convicted or future criminality by him.   Therefore, the subject condition, which restricts his otherwise lawful right to sell or donate his blood and/or plasma is unreasonable and invalid.

The majority attempts to avoid this evidentiary problem by concluding that “Defendant's chronic use of marijuana in our view places him squarely in an at-risk category to abuse other controlled substances including those which are injectable.”  (Emphasis added.)   However, there is nothing in the record, such as testimony by experts or competent credible reports or statistics by reputable governmental or private institutions, which supports a conclusion that chronic marijuana users, anymore than chronic alcoholics or other users of non-intravenously administered drugs, also use or will use in the future controlled substances which may be, or are, injected intravenously.   Thus, the majority's conclusion that defendant is at risk to abuse injectable drugs is based on nothing more than speculation.

In an apparent attempt to buttress its position that the subject condition is reasonable and therefore valid, the majority cites People v. Henson (1991) 231 Cal.App.3d 172, 182, 282 Cal.Rptr. 222, for the proposition that “injectable controlled substances have been documented as a substantial factor in the spread of the HIV virus.”  Henson, however, is clearly distinguishable from our case.

In Henson, the defendant, who regularly used marijuana and methamphetamine, was required to participate in an AIDS education program as a probationary condition.   The appellate court upheld this condition as reasonable.   Noting that an officer from the county drug enforcement unit had testified that methamphetamine could be eaten, drunk, snorted or injected, the court stressed that “While there may be no natural progression from nasal ingestion of methamphetamine to injecting it, it is an alternative method of sorption․”  (People v. Henson, supra, 231 Cal.App.3d at p. 181, 282 Cal.Rptr. 222.)   Thus, based solely on the defendant's use of methamphetamine (no mention being made of defendant's use of marijuana) the Henson court held:  “It [the probation condition] was a reasonable attempt to deter a woman who was not known to have used intravenous drugs but reasonably might be considered at risk of beginning such means of ingestion because of her long term use of a drug capable of intravenous injection.”  (Emphasis added.)

It is therefore readily apparent that Henson (assuming one accepts the factual assumptions made therein to be correct) is inapposite to our case because the record here, unlike the record in Henson, contains no evidence either that marijuana is capable of being injected by needle or that defendant here is at risk of becoming an intravenous drug user.

The majority also expresses its belief that the subject condition was reasonable because it enables the probation officer to monitor needle marks which may appear on the defendant's arm, and to definitely exclude as a possible source of those marks the lawful sale or donation of blood/plasma.   This rationale is flawed because it is based on the unsupported assumption that a marijuana user such as defendant is at risk of using intravenous drugs.   As discussed above, there is no evidence in the record that defendant has used, or may use in the future, intravenous drugs.   Consequently, the majority's gratuitous comments that this condition would aid a probation officer in the way described (which comments are themselves based on assumptions rather than evidence) are nothing more than bootstrapping.

In summary, the application of the Lent criteria to the evidence in the record persuades me that the subject condition is not reasonably related to the crimes of which defendant was convicted, namely, the felony transportation of marijuana and misdemeanor possession of marijuana, nor to defendant's future criminality.

As the majority has noted on page 572–73 of its opinion, the imposition of a probationary condition pursuant to section 1203.1 requires an exercise of discretion, and if the condition is arbitrary or capricious or exceeds the bounds of reason considering all the circumstances of the particular case, such imposition is an abuse of discretion.  (People v. Welch, supra, 5 Cal.4th 228, 19 Cal.Rptr.2d 520, 851 P.2d 802.)   Because, in my opinion, the subject condition was unreasonable within the meaning of section 1203.1, its imposition constituted an abuse of the trial court's discretion.   Consequently, I would order the sentencing court to strike the subject condition and to not reimpose it in its original or any modified form.

FOOTNOTES

FN1. All further statutory references are to the Health and Safety Code unless otherwise indicated..  FN1. All further statutory references are to the Health and Safety Code unless otherwise indicated.

2.   It was defendant's request to the court which occasioned the delay in his reporting to serve the custody commitment.   Defendant represented that he had driven to court with his girlfriend who did not drive.   Defendant asked for the court's indulgence in delaying the custody commitment only long enough to drive his girlfriend home.   The court granted the request only after warning defendant about the necessity to reappear as ordered.

3.   Defendant explained his failure to report by providing a copy of some medical information indicating that he had taken his girlfriend's child to the emergency room at Barstow Community Hospital for care because of acute bronchitis or early pneumonia.   Defendant further explained that he had taken the child at 2:30 p.m. and was unable to return prior to the 4 p.m. deadline.   He further stated that after the weekend, he returned to court on Tuesday as soon as he could get transportation.

1.   All further statutory references shall be to the Penal Code unless otherwise noted.

HOLLENHORST, Acting Presiding Justice.

McKINSTER, J., concurs.