1

Filed 2/5/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Tehama)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE GUADALUPE MUNOZ,

Defendant and Appellant.

C075983

(Super. Ct. No. NCR77911)

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 
2

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 
3

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.
4

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. 
5

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 
6

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, 
7

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.)
8

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 sixyear 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. 
9

DISPOSITION

The judgment is affirmed.

 ROBIE , J.

We concur:

 NICHOLSON , Acting P. J.

 MURRAY , J.