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Filed 8/6/21 P. v. Westcolvin CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not 

certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been 

certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

MALIQUE ISSAC WESTCOLVIN,

Defendant and Appellant.

 A158309

 (Solano County

 Super. Ct. No. 

FCR346267)

In July 2019, Vacaville police officers arrested defendant Malique Issac 

Westcolvin, who was out on parole, after they found a pistol in an automobile 

under his control. Defendant was charged with one count of unlawful 

possession of a firearm by a person under 30 years of age previously adjudged 

a ward of the court (Pen. Code, § 29820, subd. (b)). The complaint further 

alleged a prior strike. 

Defendant pleaded no contest to the count as charged, and the district 

attorney moved to dismiss the strike. The trial court granted the motion and 

placed defendant on three years’ probation, subject to various terms and 
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conditions. Defendant challenges several of these conditions. We order the 

modification of the search condition, but otherwise affirm.1 

DISCUSSION

Standard of Review

“[W]e ‘ “review conditions of probation for abuse of discretion.” ’ 

[Citation.] Specifically, we review a probation condition ‘for an indication 

that the condition is “arbitrary or capricious” or otherwise exceeds the bounds 

of reason under the circumstances.’ ” (In re Ricardo P. (2019) 7 Cal.5th 1113, 

1118 (Ricardo P.).) Under Lent,

2 “ ‘[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.” ’ ” (Ricardo P., at p. 1118.) “ ‘[A]ll three prongs must be 

satisfied before a reviewing court will invalidate a probation term.’ ”

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(Ricardo P., at p. 1118.) 

No Alcohol Condition

The trial court ordered defendant “to totally abstain from the use of 

alcohol, illegal drugs and marijuana” for the duration of his probation.

1 Upon defendant’s request, the trial court granted a certificate of 

probable cause related to the “conditions of probation as not being reasonably 

related to the offense,” specifically, the conditions of “abstention to marijuana 

and alcohol . . . and any testing and search clause” condition. 

2 People v. Lent (1975) 15 Cal.3d 481, superseded by statute on another 

ground as stated in People v. Moran (2016) 1 Cal.5th 398, 403, footnote 6.

3 In defendant’s reply brief, he asserts “probation conditions must be 

reviewed consistently with rehabilitation principles as reflected with the 

passage of [Assembly Bill No.] 1950 [(2019-2020 Reg. Sess.)].” Assembly Bill 

No. 1950 (2019-2020 Reg. Sess.) “amended [Penal Code] section 1203.1 to 

limit the maximum probation term a trial court is authorized to impose for 

most felony offenses to two years.” (People v. Sims (2021) 59 Cal.App.5th 
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Defendant contends this condition is unreasonable under Lent because it is 

not conduct which is reasonably related to future criminality. 

Defendant’s challenge fails on the record. Despite defendant’s

contention that “nothing in [his] history indicates he committed any crimes 

while under the influence of alcohol or marijuana,” in fact, defendant had 

previously reported he committed his prior offense, robbery, after having 

consumed alcohol. Moreover, he committed this offense while on parole for 

that crime. Accordingly, criminal conduct while under the influence was 

reasonably of concern to the court, and the alcohol prohibition condition 

cannot be said to be an abuse of discretion. 

No Marijuana Use Condition

Defendant likewise challenges the no marijuana use condition, 

claiming his acknowledged use bears no relation to the crime to which he 

plead no contest. He further claims the court’s concern about defendant’s 

“ ‘success on probation’ ” is actually an overbroad concern that defendant obey 

all laws, as there is nothing in the record suggesting he has committed a 

crime while under the influence of marijuana. 

Defendant correctly states that “Lent’s third prong requires more than 

just an abstract or hypothetical relationship between the probation condition 

and preventing future criminality,” and that a “degree of proportionality 

between the burden imposed by a probation condition and the legitimate 

interests served by the condition” must exist. (Ricardo P., supra, 7 Cal.5th at 

pp. 1121-1122.) Still, we may not reweigh the trial court’s credibility findings 

regarding whether or not the restriction condition is reasonably related to 

943, 947.) Accordingly, the bill’s limitation is on the “maximum duration of 

felony probation terms,” not on the trial court’s discretion to impose probation 

conditions. (Ibid.) 
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defendant’s future criminality. (People v. Sperling (2017) 12 Cal.App.5th 

1094, 1099, fn. 2.) Additionally, even if a reasonable judge could have 

reached a different determination, if the sentencing judge’s determination 

does not exceed the bounds of reason, then it will still be upheld. (Ricardo P., 

at p. 1118.) 

Despite defendant’s assertion that he has had no prior convictions 

regarding marijuana, specifically, he does have a history of questionable 

substance use and abuse. The probation report stated defendant reported 

having a medical marijuana card “for anxiety.” However, defendant offered 

no evidence substantiating his claim of anxiety sufficient to require medicinal 

treatment. (See People v. Moret (2009) 180 Cal.App.4th 839, 848.) He also 

admitted that, while on parole, he smoked marijuana at a rate of “5-10 

Backwoods cigars laced with marijuana per day” and that his longest period 

of “abstention outside of incarceration” had been for 30 days. Additionally, 

even though defendant, while he was on parole, was not allowed to have any 

involvement with his family’s marijuana operation, he did so anyway. 

The trial court stated it imposed the conditions regarding controlled 

substances because of defendant’s young age and “his rehabilitation efforts 

would be enhanced if he was able to maintain sobriety.” The trial court based 

this in part on his “long history . . . of use of these substances, before the age 

of which he was legally allowed to do so,” finding that he had not “developed a 

lifestyle for a mature attitude about the use of controlled substances” and 

that it “would be a detriment to his success on probation and his future 

efforts at rehabilitation to continue down this road.” Indeed, when defendant 

was taken into custody, he stated that he was not “ ‘doing the things [he] 

planned to do’ ” while he was on parole and that he was using his

incarceration for the instant offense to self-reflect. 
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Given defendant’s statements, history of questionable substance use, 

the relation of his family’s business to marijuana, and the trial court’s 

rationale, it cannot be said that the no marijuana condition was an abuse of 

discretion.

Compassionate Use Card Restriction Condition

Next, defendant challenges the condition that he not “obtain a medical 

marijuana card without prior court approval.” He contends the trial court 

failed to apply the three-step Leal4 inquiry prior to imposing the condition. 

The Leal inquiry includes (1) examining “the validity of any 

[Compassionate Use Act of 1996 (CUA)] authorization;” (2) applying the 

“threshold Lent test for interfering with such authorization;” and (3) 

consideration of “competing policies governing the exercise of discretion to 

restrict CUA use.” (Leal, supra, 210 Cal.App.4th at p. 837.) 

Defendant maintains inquiry one is “satisfied on this record,” but 

inquiries two and three are not. Specifically, defendant asserts any “futurecriminality nexus to medical marijuana use would be remote and 

attenuated,” and the court never engaged in the “balancing of needs.” 

Although defendant objected to the “marijuana restrictions,” he did not

specifically object to the medical marijuana card condition and the issue has 

been forfeited. (See People v. Welch (1993) 5 Cal.4th 228, 237.)

Even assuming no forfeiture, this challenge also fails on the record. 

Defendant’s assertion that the condition fails the second Leal inquiry fails for 

all the reasons we have just discussed in connection with the no use 

condition.

Turning to the third Leal inquiry, “[t]he requisite balancing 

contemplates a judicial assessment of medical need and efficacy based upon 

4 People v. Leal (2012) 210 Cal.App.4th 829, 844 (Leal). 
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evidence: the defendant’s medical history, the gravity of his or her ailment, 

the testimony of experts or otherwise qualified witnesses, conventional 

credibility assessments, the drawing of inferences, and perhaps even medical 

opinions at odds with that of the defendant’s authorizing physician.” (Leal, 

supra, 210 Cal.App.4th at p. 844.) 

There was a complete paucity of evidence as to defendant’s asserted 

medicinal need for marijuana. Further, the trial court found defendant’s 

marijuana use, and use of other drugs before he was legally allowed to do so, 

would be, “a detriment to his success on probation and his future efforts at 

rehabilitation” if he were to “continue down this road.” The record thus 

supports a reasonable inference that the court did not credit defendant’s 

statement to probation that he used marijuana for legitimate medical 

reasons. (See Leal, supra, 210 Cal.App.4th at p. 842 [concluding the 

defendant was hiding behind his compassionate use card to engage in illegal 

aspects of marijuana business].) Furthermore, this condition does not 

foreclose defendant’s access to medical marijuana completely. Thus, if 

defendant is able to show that he has a medical need for marijuana, then he 

may be allowed to obtain and use a medical marijuana card. 

Thus, based on the record here, including the frequency and volume of 

usage of marijuana by defendant and his involvement in his family’s 

marijuana grow business, we cannot say the compassionate use card 

restriction was an abuse of discretion. 

Search Condition

Defendant also challenges the search condition requiring him to 

“submit his person, real or personal property, automobile, and any object 

under his control to search and seizure, in and out of his presence, as 

requested by any peace or probation officer, at any time of the day or night, 
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with or without cause, notice, consent or warrant.” He maintains this 

language is broad enough to include any electronic search of any device, thus 

rendering the condition impermissibly overbroad. 

Recognizing his failure to object to this condition in the trial court 

forfeits his challenge, defendant instead maintains his counsel’s failure to 

object constituted ineffective assistance of counsel. 

We need not consider defendant’s IAC claim, however, as the Attorney 

General effectively concedes the search condition, as stated, is overbroad. He 

states the “box for electronic search was deliberately unchecked and there is 

no mention of electronic search conditions in the body of the probation 

conditions list.” 

The Attorney General is correct as to the record. We therefore order 

the language of the condition modified to clarify that it does not extend to 

electronic searches. (See Ricardo P., supra, 7 Cal.5th at p. 1124.)

Counseling and Therapy Condition

Defendant lastly challenges the condition requiring him to attend and 

successfully complete counseling and therapy as may be directed by 

probation, specifically any cognitive behavioral therapy, drug classes or AAs 

or NAs that they may deem necessary. Defendant maintains this condition is 

a facially unconstitutional delegation of judicial power. 

Defendant acknowledges he also failed to object to this condition. But 

to the extent it is a facial challenge, it has not been forfeited. (See People v. 

Patton (2019) 41 Cal.App.5th 934, 946.)

Defendant specifically objects to the language that the probation officer 

may direct defendant to undergo certain programs, citing to In re Pedro Q.

(1989) 209 Cal.App.3d 1368 for the proposition that a probation officer may 

not add new conditions of probation. In that case, months after the 
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defendant was placed on probation, the probation officer unilaterally 

restricted the defendant’s travel. (Id. at p. 1372.) However, here the trial 

court imposed the challenged condition, and that condition does not give the 

probation officer unfettered discretion to impose an additional condition. 

Defendant also relies on People v. Penoli (1996) 46 Cal.App.4th 298 

(Penoli). In that case, the defendant challenged a condition allowing the 

probation department to “unilaterally select a residential drug rehabilitation 

program and determine whether defendant successfully completed that 

program.” (Id. at p. 307.) The court upheld the condition against a 

delegation challenge, stating “any attempt to specify a particular program at 

or prior to sentencing would pose serious practical difficulties. The trial court 

is poorly equipped to micromanage selection of a program, both because it 

lacks the ability to remain apprised of currently available programs and, 

more fundamentally, because entry into a particular program may depend on 

mercurial questions of timing and availability. The specified program may 

decline to accept the defendant, for instance, or may be unable to do so for 

reasons as mundane as lack of space.” (Id. at p. 308.) The court 

acknowledged there were ways in which probation’s role could be more 

defined, such as by the court specifying the duration of the rehabilitation 

program, or having probation make several specific program 

recommendations. (Ibid.) But that did not render the condition 

constitutionally infirm. The delegation at issue did not “place the defendant 

completely at the mercy of the probation department.” (Ibid.) Moreover, the 

defendant could seek “judicial intervention—by moving to modify the 

probation order, if nothing else—if and when the probation officer seeks to 

exercise the delegated authority.” (Ibid.) 
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The court also rejected a vagueness challenge, pointing out the record 

reflected that defense counsel was aware of the nature of drug rehabilitation 

programs. It also observed that if probation determined the defendant was 

not in compliance, it was ultimately, the court that would determine whether 

or not that, in fact, was the case. (Penoli, supra, 46 Cal.App.4th at pp. 309-

310.)

Defendant forthrightly acknowledges that in Penoli, the court upheld 

the challenged condition. But he maintains the condition here grants 

probation far more discretion, and that the concerns the court articulated in 

Penoli are manifest here. 

However, given that the record here evidences reasonable concerns 

about defendant’s use and abuse of multiple substances, we do not consider 

the challenged probation condition materially different than that in Penoli. 

Moreover, as the Attorney General points out, in not requiring that defendant 

attend any one of the particular types of programs identified, the condition 

ensures that the probation officer will assess defendant’s specific treatment 

needs, thereby best assisting him in gaining control of his substance abuse 

issues. It also spares defendant from being required to attend any one of 

these types of programs that may not, upon further assessment, be of benefit 

to him. The probation officer has no authority to require defendant to attend 

programs of any kind other than as identified by the court. We therefore 

conclude that, on this record, the condition is not constitutionally infirm. 

DISPOSITION

We modify the warrantless search condition to read as follows:

“Defendant is to submit his person, real or personal property, automobile, 

and any object under his control to search and seizure, in and out of his 

presence, except computers, electronic devices, and cellular devices, as 
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requested by any peace or probation officer, at any time of the day or night, 

with or without cause, notice consent, or warrant.” In all other respects, the 

judgment affirmed.
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_________________________

Banke, J.

We concur:

_________________________

Humes, P.J.

_________________________

Margulies, J.

A158309, People v. Westcolvin