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. N o. 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. Far rell, 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 methamphe tamine. The trial court sentenced him to three years in county jail followed by three years of mandatory supervision subject to2

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 psychia tric 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 claim s 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, def

endant 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 tw o 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
follo wed 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 repo rt included
conditions th at “ defendant shall participate in and complete a psychological or psychiatric counselling/treatment [ sic ] program, including a residential treatment3

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 pr obation, 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 revo cation of probation alleging defendant tested positive for methamphetamine. Defendant admitted the alleged violation at the July 6, 2010 , hearing . T he 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 rece i pt of the order and agreed to

s trictly 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 re voked and reinstated probation ( extended for an additional year ) pursuant to the original terms and
conditions previously imposed , modified to include fines, an additiona l 60 days in county jail without credit for time served, and 40 hours of community service. The July 3, 2013 , order r einstating 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 methamphetami ne. At the January 22, 2014 , hearing on the petition, defendant admitted the alleged viol ations

.4

On February 24, 2014, the trial court terminated probation and sentenced defendant to an aggregate term of s ix 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 forma l 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 abus ed 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 requ ires conduct not reasonably

r elated 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 a ppl y, 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 crimi nality

. . . . ’ ” ( 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 conditi on 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. Fandin ola (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 rationa le 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 ref erence
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 s ubject 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 criminal6

record which includes use of marijuana and methamphetamine and repeated arrests for driving under the influence

. I n light of th os e 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 o f 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 condition s and whether the facts of his current offense and his prior criminal conduct support imposition of those condition s

. Defendant responds that because his claim s rest on uncontested facts, the claim s 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 h elpful to defendant. In any event, given defendant ’ s reliance on the Lent factors, t he determination
whether the mandatory supervision condition requiring psychiatric treatment has any relationship to def

endant ’ 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.)
T his argument is specious and we reject it as such

. The record is clear that, at the time of the initial grant of probation i n June 2010, defendant knew of and agreed to the challenged conditions , which were included in the probation report and the subse quent 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 rei terated verbatim in the July 2 013 order reinstating probation

. Fin ally,

a t 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 , ha ving 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 incorpor ated 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 O

f Counsel
To establ ish ineffective assistance, defend ant bears the burden of establishing both
that counsel ’ s per formance fell below an objective st andard of reasonableness under prevailing professional norms and, absent counsel ’ s error, it is reasonably probable that
the ve rdict 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
cl aim 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, w e accord great deference to trial
counsel ’ s reasonabl e 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 ass ertion, the record does not affi rmatively 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 repeated ly violated probation by, among other things, possessing and using controlled substances. Both the probation officer and the tria l court expressed concern over defendant ’ s inability to

c omply with the previous grant of probation or resist the urge to commit new offenses.
T he trial court imposed a six

- year term (the middle term for the felony drug conviction, plus three years for th e enhancement), and ordered that defendant serv e half of that six

year 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 challe nged conditions is that d efendant 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 sign ificantly more time in custody.
Because we find defendant has not met his burd en 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 i s affirmed.

ROBIE , J.

We concur:

NICHOLSON , Acting P. J.

MURRAY , J.