People v. Leal

• Citation: 210 Cal.App.4th 829,149 Cal.Rptr.3d 9
• Decision Date: 29 October 2012
• Docket Number: No. A131366.,A131366.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Daniel Lee LEAL, Defendant and Appellant.

210 Cal.App.4th 829

149 Cal.Rptr.3d 9

2012 Daily Journal D.A.R. 14,999

The PEOPLE, Plaintiff and Respondent,

v.Daniel Lee LEAL, Defendant and Appellant.

No. A131366.

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

Oct. 29, 2012.

See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 665 et seq.

Recognized as Invalid

West's Ann.Cal.Health & Safety Code § 11362.77.

Donald L. Lipmanson, Ukiah, by appointment of the Court of Appeal under the First District Appellate, Project's Independent Case System, for Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Asst. Atty. General, Gerald A. Engler, Sr. Asst. Atty. General, Seth K. Schalit, Supervising Deputy A.G., Dorian Jung, Deputy Attorney General, for Respondent.

KLINE, P.J.

This probation case presents recurring issues arising when a trial court considers imposing, consistent with the Lent test ( People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545), a condition of probation restricting medical use of marijuana under the Compassionate Use Act of 1996(CUA) (Health & Saf.Code, § 11362.5) and the Medical Marijuana Program (MMP) ( id.,§ 11362.7 et seq.).¹ Daniel Lee Leal challenges such a condition imposed on him. Finding that imposition of the condition was not an abuse of discretion, we shall affirm the judgment.

Background

A jury found that Leal possessed marijuana for sale (§ 11359) while armed (Pen.Code, § 12022, subd. (a)(1)), plus three firearm offenses (Pen.Code. § 12031, subd. (a)(1), former Pen.Code, §§ 12021, subd. (c)(1), 12025, subd. (a)(2), (b)(6)), and resisting a peace officer (Pen.Code, § 148, subd. (a)(1)), and the court granted him three years' formal probation, prohibiting him from all marijuana use, including medical use. Sentencing also disposed of a case arising while Leal was out on bail in the first case. The charge was also possessing marijuana for sale (§ 11359), this time with an enhancement for commission while on bail (Pen.Code, § 12022.1, subd. (b)). The facts of both cases were before the court when it imposed the no-marijuana condition.

The Current Case

Trial evidence showed that, before noon on February 29, 2008 at Gentrytown Park in Antioch, undercover narcotics Detectives Michael Mortimer and Josh Vincelet were driving by in an unmarked truck when Leal jaywalked in front of them. This caused the officers and two other cars to slow or swerve to avoid hitting him. Leal flipped off the officers and continued toward a park entrance, near a restroom. Mortimer made a U-turn and, against traffic, pulled up to the curb along a sidewalk where Leal was walking.

After alighting from their truck and identifying themselves, the officers called upon Leal to stop. Ignoring these requests, he stepped back and put his hands into the front pocket of his sweatshirt. Saying “fuck this,” Leal then turned and ran into the park. Vincelet ran after him, still identifying himself and calling on Leal to stop, as Mortimer got back into the truck to follow. As the gap between them closed near the restroom, Vincelet saw Leal toss a small black handgun into a dirt patch between some bushes, and then slip on some wet grass and fall, rolling onto his stomach. Vincelet was immediately on top of Leal and held him there until Mortimer arrived to help handcuff Leal.

From across the park where she and other parents tended to their children at a play structure, a woman who had earlier uneasily noted that Leal was “skulking around the bathroom area,” watched the encounter with horror, fearing for her children's safety.

Alerted by Vincelet to the gun by the bushes, Mortimer retrieved it—a black .22–caliber semiautomatic with six live cartridges in the magazine. Leal's front sweatshirt pocket held a cell phone and 12 knot-tied plastic sandwich bags containing small amounts of marijuana. Other pockets held a digital gram scale, a $50 dollar bill, cell phone batteries, and two “blunts” (cigars refilled at least in part with marijuana). Call logs on the phone showed several text messages in the inbox and outbox indicating drug sales, particularly people wanting to get “an eighth,” a phrase connoting a weight of marijuana or other drugs. The phone rang throughout the officers' time at the park, and Vincelet's expert opinion was that the circumstances indicated possession for sale. An “eighth,” he testified, was street parlance for an eighth of an ounce (about 3.5 grams). Most of the plastic bags held about eight grams of marijuana—two “eighths”—and there were 72.6 grams in all.

In a wallet, Leal had two marijuana cards—one authorizing him to possess marijuana, and the other a membership card from a marijuana dispensary in Berkeley. Vincelet testified that, in his experience, nearly 90 percent of arrestees in marijuana sales cases “possess either a marijuana patient's recommendation or a card.”

The New Case

The facts are set forth in a probation report that summarizes a police incident report. On October 14, 2009, Antioch police officers were searching a hydroponics supply store when Leal entered and inquired whether the store was still open. A detective in plain clothes but displaying a badge and wearing a gun, who recognized Leal from prior contacts, told him the store was closed. Leal explained that he had arranged with the owner of the store to purchase a grow lamp for $175, which he needed to expand his “grow.” The detective asked Leal how many plants he was growing, and Leal told him he was growing 16 “lollypop buds.”

Noticing a strong odor of marijuana coming from Leal, the detective identified himself as a police officer and asked Leal why he smelled like marijuana. Leal responded by saying, “I can smoke weed. You can check me.” After confirming that Leal was consenting to be searched, the officer conducted a search and found $965 in cash, separated in stacks of $100 and banded together with a rubber band, a baggie containing four small baggies, each containing approximately three grams of marijuana, and a small digital gram scale. When the officer opened a large baggy and extracted one of the smaller baggies it contained, Leal told him: “That's my personal sack. That's for me to smoke.” When the officer extracted the remaining baggies, Leal said, “Them other ones are for business. I'm just trying to make my money.” Leal then said, “It's all mine. I smoke a lot of weed. I smoke about an 8th every hour and a half.” Leal also stated that he was “out on bail” for a robbery case and, anticipating he would be sentenced to jail, was “smoking as much weed as he can while he's out of custody.”

The detective found a current medical marijuana card in his wallet, which Leal said he needed because his mother has cancer. When advised that his mother's illness was not a valid reason for his marijuana use, Leal “admitted that he loves to smoke ‘weed.’ ” A search of Leal's cell phone revealed several text messages asking Leal for marijuana. The phone also contained several photos of Leal posing in front of a group of mature marijuana plants. When the officers arrested Leal, he told them that the money they found on him “was for grow equipment. It ain't from selling weed.” The detective told Leal that he knew he was unemployed and had no legitimate source of income.

Leal was nearly 26 years old at sentencing, and a probation report for his jury-tried case stated: “Although [Leal] opted out of the interview process, his substance abuse issues are evident by his arrest history for possession of marijuana. He said that he has a cannabis card but his card will expire while he is in custody.” Leal's criminal history, beyond the current and new cases, included misdemeanor assault as an adult, and second degree burglary and attempted robbery as a juvenile.

Grant of Probation

At the commencement of the sentencing hearing, the court stated for the record a discussion in chambers: “The recommendation of the probation officer was probation on the case that was tried. And what we discussed is a global disposition of that case, along with the pre-preliminary hearing pending case, which the defendant picked up while he was out on bail on this case. And ... the district attorney indicated that he would dismiss the [bail] enhancement if the defendant pleaded to Count 1, which is another 11359 as a felony.

“And ... I would sentence him on the case that went to trial, on which we had the jury verdict, to 180 days in the county jail with three years of formal probation. And that if you wanted to dispose of the other case pre-preliminary and take early responsibility for that, I would make a total number of days of 270 days.

“And I also stated that I would require, as a condition of probation, that the defendant not use or possess any marijuana, even medical marijuana. We had a discussion in chambers about the legality of that. I told counsel I was quite sure there was a recent Court of Appeal decision on the issue, and pulled it up ... and provided it to them. It's People v. Brooks [ (2010) 182 Cal.App.4th 1348, 107 Cal.Rptr.3d 501( Brooks ) ].... And it held that just as the court has discretion in an appropriate case to impose probation conditions that prohibit even legal activity, there's no exception for medical marijuana to that rule. So, it stated the rule that as long as there's a nexus between the probation condition and the conduct at issue, that it is a legal condition of probation.

“And the reason I would—I find it to be related to that condition—related to the conduct at issue, is that the defendant in this case, and as I understand it both from our discussions in this case about [Evidence Code section] 1101(b) evidence and also our discussion in chambers, in this case and in the other case, he appears to be ... selling marijuana on the side to fund his use of marijuana. And so there is a nexus between his use, even if authorized by a doctor, and the illegal conduct.

“And I do find that he is much more likely to...