THE PEOPLE, Plaintiff and Respondent, v. MORIAH NOEL QUINN, Defendant and Appellant.
A156932
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Filed 1/11/21
(San Mateo County Super. Ct. No. 18NF014303A)
Following her conviction for attempting to transport marijuana across state lines, defendant Moriah Noel Quinn was placed on supervised probation with the condition, among others, that she abstain from the use and possession of controlled substances, including marijuana. On appeal, defendant contends the condition prohibiting the use or possession of marijuana is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and that the restriction on her use or possession of “controlled substances” is overbroad. Defendant also challenges a $300 restitution fine and contends that the term of her probation must be reduced from three years to two years pursuant to recently enacted Assembly Bill No. 1950 (2019-2020 Reg. Sess.). We conclude that the prohibition on defendant‘s use and possession of marijuana is amply justified by her current conviction and criminal history but agree that the restriction on her use or possession of “controlled substances” is overbroad and must be modified to permit the use and possession of legally prescribed medications. We also agree that the restitution fine must be stricken and the term of defendant‘s probation reduced to two years under the recent statutory amendment.
Background
Defendant was convicted by a jury of felony attempted interstate transportation of marijuana in violation of
Discussion
1. The probation condition prohibiting use or possession of marijuana is not unreasonable.*
A sentencing court has broad discretion to fashion appropriate conditions of probation that facilitate rehabilitation and foster public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) We review the conditions imposed for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379.) A condition of probation is invalid if 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.” ’ ” (In re Ricardo P. (2019) 7 Cal.5th 1113, 1118, quoting People v. Lent, supra, 15 Cal.3d at p. 486.) “The Lent test ‘is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.’ ” (Ricardo P., at p. 1118.)
There is no dispute that the condition satisfies the second prong of the test, as the possession and use of marijuana is not itself criminal in the State of California. (See People v. Cruz (2020) 54 Cal.App.5th 707, 711.) The condition, however, does not satisfy the remaining prongs. Contrary to defendant‘s arguments, the condition is amply supported by the facts of defendant‘s conviction and her prior criminal history. As reflected in the probation report, defendant was (1) convicted of attempting to transport marijuana for sale in the current offense; (2) had a prior felony conviction for possession of marijuana in Texas; (3) had an active warrant out of Madison County, Tennessee for drug related charges; (4) admitted to “being a ‘mule’ ” in transporting narcotics; and (5) previously engaged in transporting or trafficking marijuana. The prohibition of her possessing marijuana is entirely reasonable.
Defendant‘s suggestion that the condition improperly restricts her use of marijuana because the record does not demonstrate she has a history of marijuana use is not persuasive. As the Attorney General argues, the court reasonably could have concluded that defendant‘s continued involvement with marijuana, whether possessing, using, transporting or selling, was impeding her rehabilitation and decreasing her chances for success on probation. Absent any indication in the record that an exception should be made for medicinal use of marijuana, the blanket prohibition was warranted in this case.
2. The restriction that defendant “abstain from the use and possession of controlled substances” is overbroad.*
The court ordered defendant to “abstain from the use and possession of controlled substances including marijuana.” The clerk‘s transcript adds the additional requirement that defendant “abstain from the use or possession of narcotics or illegal drugs.” Defendant contends that the restriction that she “abstain from the use and possession of controlled substances” is overbroad because it fails to allow her to take prescription medications, and that the additional condition in the clerk‘s transcript is not controlling in light of the court‘s oral pronouncement. The Attorney General argues that the reporter‘s transcript cited by defendant contains a “transcription error” which was subsequently corrected to “reflect what was said on the record.” The amended minute order eliminates the requirement that she “abstain from the use and possession of controlled substances including marijuana” and leaves in place the requirement that she “abstain from the use or possession of narcotics or illegal drugs, including marijuana.” Defendant disputes the Attorney General‘s assertion that the correction resolved the matter and continues to seek clarification of the conditions of her probation.
The Attorney General does not dispute that a blanket prohibition on the use or possession of controlled substances without an exception for prescription medications is overbroad. Therefore, we see no reason not to provide the requested clarification. “Controlled substances” are defined and listed in
3. The restitution fine must be stricken.*
At sentencing, the trial court found that defendant was indigent and sought to “waive as many fees” as possible. The court explained that it was waiving these fees based on counsel‘s statement that his client was indigent and the probation department‘s report “that even though she‘s worked in the past, she‘s now dependent on her mother” and “also the fact that somebody that‘s served 188 days in jail and now has a felony conviction on her is going to be -- has not been able to be employed [in the past] and may find it hard to be employed in the future.” However, the court imposed the minimum “restitution fine plus the ten percent collection fee” noting that imposition of a restitution fine under
On appeal, defendant contends that the imposition of a restitution fine on an indigent defendant violates due process. She relies on People v. Dueñas (2019) 30 Cal.App.5th 1157, 1164, in which the court held that imposition of a restitution fine without consideration of a defendant‘s ability to pay violates due process.1 This court has previously declined to “join the courts that have declared Dueñas to have been wrongly decided” but has agreed that “[a] suitable framework for analyzing the constitutionality” of a minimum restitution fine imposed under
In People v. Cowan, supra, 47 Cal.App.5th at page 48, this court held, “Because ability to pay is an element of the excessive fines calculus under both the federal and state Constitutions, we conclude that a sentencing court may not impose . . . restitution fines without giving the defendant, on request, an opportunity to present evidence and argument why such monetary exactions exceed his ability to pay.” We provided the following guidance for the trial court on remand: The evaluation of ability to pay must include both a defendant‘s present ability to pay and their future ability to pay. (Id. at p. 49.) The defendant bears the burden of proof regarding inability to pay. (Ibid.) And, finally, “If, upon remand, an excessive fines objection is made and upheld, the ruling will amount to a determination that the clause in
4. The term of probation must be reduced.
Assembly Bill No. 1950, signed by the Governor on September 30, 2020, and effective on January 1, 2021 (Stats. 2020, ch. 328, § 2), reduces felony probation terms to two years, with certain exceptions, by modifying
The legislative history reflects that the Legislature‘s concern was that lengthy probationary periods do not serve a rehabilitative function and unfairly lead to reincarceration for technical violations. The author‘s statement with respect to the bill provides: “California‘s adult supervised
Defendant contends that the amendment should be applied retroactively to reduce her period of probation from three years to two. In People v. Frahs (2020) 9 Cal.5th 618, 627-628, the California Supreme Court recently summarized the relevant law: “Generally, statutes are presumed to apply only prospectively. [Citation.] However, this presumption is a canon of statutory interpretation rather than a constitutional mandate. [Citation.] Accordingly, ‘the Legislature can ordinarily enact laws that apply retroactively, either explicitly or by implication.’ [Citation.] Courts look to the Legislature‘s intent in order to determine if a law is meant to apply retroactively. [Citation.] [¶] In [In re Estrada (1965) 63 Cal.2d 740 (Estrada)], we held that amendatory statutes that lessen the punishment for criminal conduct are ordinarily intended to apply retroactively. [Citation.] In endeavoring to ascertain the legislative intent in enacting such a statute, we found ‘one consideration of paramount importance.’ [Citation.] We explained: ‘When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.’ [Citation.] [¶] We reasoned that ’ “[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law. Nothing is to be gained by imposing the more severe penalty after such a pronouncement; the excess in punishment can, by hypothesis, serve no purpose other than to satisfy a desire for vengeance. As to a mitigation of penalties, then, it is safe to assume, as the modern rule does, that it was the legislative design that the lighter penalty should be imposed in all cases that subsequently reach the courts.” ’ [Citations.] [¶] ’Estrada stands for the proposition that, “where the amendatory statute mitigates punishment and there is no saving[s] clause, the rule is that the amendment will operate retroactively so that the lighter punishment is
The Attorney General argues that Assembly Bill No. 1950 is not subject to the Estrada presumption of retroactivity because probation is not a form of criminal punishment. The Attorney General acknowledges that the one court to consider this issue on the merits has concluded that the Estrada presumption applies to Assembly Bill No. 1950. In People v. Burton (2020) 58 Cal.App.5th Supp. 1 [2020 Cal.App. Lexis 1174], the Los Angeles County Superior Court appellate department found that in the Estrada context, probation amounted to punishment. The court observed, “It is unquestionable the reduction of the maximum amount of time a person may be placed on probation . . . inures greatly to the benefit of many persons subject to supervision. At any time a person is on probation, the court has the authority to revoke probation and sentence the person to jail, and a probation violation may even be based on violating court rules that do not amount to new crimes. [Citation.] The longer a person is on probation, the potential for the person to be incarcerated due to a violation increases accordingly. The possibility of incarceration due to being on probation for periods longer than a year based on minor probation violations was relied on by the Legislature in enacting the provision lowering the maximum probationary period. [Citation.] [¶] Moreover, while a person is on probation, the individual may lawfully be ordered to comply with numerous and varied conditions, including, as in this case, ordering the person to provide prosecutors a list of properties they own. In other situations, they may be subject to search and seizure by law enforcement with or without a warrant [citation], submitting urine samples for narcotics use monitoring [citation], and regularly interrupting persons’ work and schooling and traveling to court for progress reports. In addition, when a court‘s orders are violated, courts have power to increase a probationer‘s supervision and intensify restrictions by modifying probation conditions. [Citation.] The longer the length of probation, the greater the encroachment on a probationer‘s interest in living free from government intrusion.”4 (Id. at pp. *19-*21.) The court acknowledged that in other contexts probation is not viewed as punishment, but concluded that those cases were not controlling for the purpose of determining retroactivity. The court explained, “It has been noted, a ‘[g]rant of probation is, of course, qualitatively different from such traditional forms of punishment as fines or imprisonment. Probation is neither “punishment” [citation] nor a criminal “judgment” [citation]. Instead, courts deem probation an act of clemency in lieu of punishment [citations], and its primary purpose is rehabilitative in nature [citation].’ [Citations.] [¶] But, although probation is not considered ‘punishment’ for specified purposes, the
We consider the reasoning in Burton persuasive. We add that since the Legislature has determined that the rehabilitative function of probation does not extend beyond two years, any additional period of probation can only be regarded as punitive, and therefore within the scope of Estrada. Moreover, even if Assembly Bill No. 1950 is not entitled to a presumption of retroactivity, the “ameliorative nature” of the amendment “places it squarely within the spirit of the Estrada rule.” (People v. Frahs, supra, 9 Cal.5th at p. 631.) The amendment applies retroactively because of the “clear indication” of the Legislature‘s intent that it do so. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287.)
In People v. Brown (2012) 54 Cal.4th 314, 325, the court emphasized that where the Estrada presumption does not apply to a statutory amendment, courts must “consider whether it is ‘very clear from extrinsic sources’ [citation], or whether such sources support the ’ “clear and unavoidable implication” ’ [citation], that the Legislature intended the amendment to operate retroactively.” (Id. at p. 320, citing Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208-1209.) As with Estrada, the only reasonable inference to draw from the legislative history of Assembly Bill No. 1950 is that the shorter term of probation “now deemed to be sufficient should apply to every case to which it constitutionally could apply.” (People v. Frahs, supra, 9 Cal.5th at pp. 627-628.) The alternative is untenable: that the legislature intended to subject thousands of criminal defendants whose cases are not yet final to terms of probation determined to be unnecessary for rehabilitation, arguably discriminatory and likely to result in unfair and unnecessary reincarceration.
The Attorney General‘s arguments to the contrary are not persuasive. The Attorney General argues that the existence of a “procedure for successful termination of probation, where warranted in the interests of justice . . .
The Attorney General‘s reliance on People v. Conley (2016) 63 Cal.4th 646 is misplaced. In Conley, the court held that the Three Strikes Reform Act of 2012, passed by initiative, does not authorize automatic resentencing for third strike defendants serving nonfinal sentences imposed under the former version of the Three Strikes law. (Id. at pp. 657-658Estrada presumption had been overridden. First, the court noted that “the Reform Act is not silent on the question of retroactivity. Rather, the Act expressly addresses the question in [Penal Code] section 1170.126, the sole purpose of which is to extend the benefits of the Act retroactively. Section 1170.126 creates a special mechanism that entitles all persons ‘presently serving’ indeterminate life terms imposed under the prior law to seek resentencing under the new law. By its terms, the provision draws no distinction between persons serving final sentences and those serving nonfinal sentences, entitling both categories of prisoners to petition courts for recall of sentence under the Act.” (Id. at p. 657Estrada presumption: that when an amendment lessens the punishment for a crime, it is reasonable to infer that the enacting legislative body has categorically determined that ‘imposition of a lesser punishment’ will in all cases ‘sufficiently serve the public interest.’ ” (Id. at p. 658.) Finally, the court noted that “unlike in Estrada, the revised sentencing provisions at issue in this case do more than merely reduce previously prescribed criminal penalties. They also establish a new set of disqualifying factors that preclude a third strike defendant from receiving a second strike sentence . . . [which] add an additional layer of complexity to defendant‘s request for automatic resentencing under the revised penalty scheme.” (Id. at p. 659 Assembly Bill No. 1950 is silent on retroactivity; it does not create a mechanism by which probationers may petition for early termination. Penal Code section 1203.3 already existed.5 While that procedure may prove beneficial to a probationer whose case is already final, it does not support an inference of legislative intent with respect to a probationer whose sentence is not yet final. Moreover, unlike in Conley, the amendment of Assembly Bill No. 1950 reflects a categorical determination that a shorter term of probation is sufficient for the purpose of rehabilitation. The court is not required to make a determination regarding dangerousness, the value of further probationary supervision, or any other consideration. Rather, the Legislature has made that determination. There is no indication in the legislative history that the Legislature was concerned with disruptions to probationary proceedings already in progress. To the contrary, the studies cited in the legislative history indicate there is little if any rehabilitative impact of services continued beyond two years. Accordingly, we shall reduce the term of defendant‘s probation to two years. Disposition Defendant‘s probation is reduced to a term of two years and the conditions of defendant‘s probation are amended to require that she “abstain from the use and possession of controlled substances including marijuana without a valid prescription.” In addition, the $300 fine imposed under Penal Code section 1203.4 is stricken. The judgment is affirmed in all other respects. POLLAK, P. J. WE CONCUR: TUCHER, J. BROWN, J. Trial court: San Mateo County Superior Court Trial judge: Honorable Nancy Fineman Counsel for plaintiff and appellant: Jonathan D. Roberts, under appointment by the Court of Appeal Counsel for defendant and respondent: Xavier Becerra, Attorney General of California; Lance E. Winters, Chief Assistant Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Catherine A. Rivlin, Supervising Deputy Attorney General; Basil R. Williams, Deputy Attorney General