People v. Dubrawski CA1/5 ( 2016 )

Filed 3/23/16 P. v. Dubrawski CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A143359
v.
ROBERT CHARLES DUBRAWSKI, JR., (Lake County
Super. Ct. No. CR934847)
Defendant and Appellant.
Robert Charles Dubrawski, Jr., offered to sell marijuana to a police officer posing
as an acquaintance. Dubrawski claimed at trial that he had grown the marijuana for a
collective of medical marijuana patients and was attempting to sell the excess from his
crop to another collective. The jury rejected the defense. Dubrawski seeks reversal
based on inadequate jury instructions. We conclude that any instructional error was
nonprejudicial and affirm. Dubrawski also challenges three conditions of his probation.
Challenges to two of the conditions are forfeited due to Dubrawski’s failure to object
below, but the third condition must be modified to cure constitutional vagueness.
I. BACKGROUND
Dubrawski was charged by felony information with transportation or sale of
marijuana (Health & Saf. Code, § 11360, subd. (a))1 and possession of marijuana
(§ 11359). The case was tried to a jury.
1
Undesignated statutory references are to the Health and Safety Code.
1
A. Trial Evidence
Dennis Keithly, a narcotics detective for the Lake County Sheriff’s Office, was
involved in the February 19, 2014 arrest of Chris Vasquez, who was found with
methamphetamine, about $16,000 in cash, and a cell phone. Keithly discovered text
messages on the cell phone that Keithly believed were arrangements for a meeting to
purchase marijuana. He called the number associated with the texts, pretending to be
Vasquez, and recorded his phone conversation with “Bob.” In the recording, which was
played for the jury, Keithly told Bob he was running late and said, “I scraped together a
few more thousand. [¶] . . . [¶] . . . [W]hat do you think we can do?” Bob answered,
“[C]om[e] on we need communication man . . . ‘cause . . . you told me you wanted a ten
pack. I went and I got ‘em. You were suppose to . . . like a third person or some, you
had some guy you know was suppose to come up.” Keithly said he had $3,000 and Bob
said the price was “1.2 so, you know like twelve hundred a pop,” which Keithly testified
meant $1,200 per pound. Keithly offered the $3,000 for three pounds, but Bob insisted
on receiving $1,200 per pound. Keithly said he would try to come up with another $600
and come by.
Keithly went to Dubrawski’s home with a search warrant. When confronted,
Dubrawski admitted he had the phone conversation with Keithly and cooperated with
Keithly’s investigation. Dubrawski directed Keithly to 10-pounds of marijuana in a box
located in a shed attached to the residence—the “ten pack” he had intended to sell to
Vasquez. Inside the house, Keithly found items he considered indicia of marijuana sales.
In a room containing an expired identification card for Dubrawski and pictures of
Dubrawski, Keithly also found a United States mail or United Parcel Service packing list
and receipt, another 1.1 pounds of marijuana, and a scale. In another room, Keithly
found processing materials: several pairs of scissors, rubber gloves, and bottles of
alcohol in a tub located near a pool table that had marijuana trimmings on it. He also
found “expired medical marijuana recommendations” for Dubrawski in the housebut no
money or pay/owe sheets.
2
Keithly read Dubrawski his Miranda2 rights and recorded a conversation with him,
which was also played for the jury. Dubrawski said he and his roommate used marijuana
for medical reasons. Dubrawski grew 36 plants of marijuana “for mostly my housemate
and myself” and reaped less than three pounds of marijuana per plant. He personally
consumed a lot of marijuana because he ate or used it in a tincture rather than smoking it.
He denied that he stored additional marijuana elsewhere, and explained that he falsely
told Keithly on the phone that he got the ten pack from some other location because he
feared being robbed if people thought he stored marijuana at his home. He was
particularly suspicious of Vasquez because “this is my first time dealing with him” and “I
think he’s on the shit,” meaning methamphetamine. Dubrawski claimed he did not know
it was illegal to sell the marijuana. He was selling it because he needed money,
apparently for a new car. He did not have a job other than caring for the property where
he lived, for which his rent was waived, and he was on food stamps. When Keithly
asked, “Is twelve hundred the usual price you get for it?” Dubrawski responded,
“Whatever you get.” Keithly testified that $1,200 per pound was the normal street price
for marijuana and the wholesale price would be $800 to $600 less per pound. However,
all prices depended on the time of year, supply and demand, and the particular strain of
marijuana.
At trial, Dubrawski testified that the ten pack came from 36 plants that he
cultivated for a group of six persons (including himself, but not Vasquez) with medical
marijuana recommendations, two of whom lived with Dubrawski. Dubrawski’s own
medical marijuana recommendations had lapsed at the time of his arrest, but his
symptoms (anxiety, insomnia and arthritis) continued, and he renewed the
recommendation before trial. Dubrawski considered the group of six a collective, but it
was not registered as such and the group members had no written agreement among
themselves and did not pay Dubrawski for their share of the marijuana. Dubrawski did
2
Miranda v. Arizona (1966) 384 U.S. 436.
3
most of the work cultivating the marijuana, and in the most recent growing season he had
harvested about 36 pounds, which he processed at home.
Dubrawski intended to sell the 10 pounds of marijuana in order to “pay for soil
and nutrients and for next season.” He claimed the group broke even on the marijuana
parcel, but he could not estimate his total costs for the last season and had not retained his
receipts. He purchased plants for about $10 to $15 each, grew them under artificial lights
for about 15 hours, and planted them in dirt supplemented with purchased soil (costing
about $120 to $150) and hundreds of dollars worth of nutrients. Other costs included
supporting himself during the four-month growing season: he worked at least 40 hours a
week on his caretaking activities, spending about a third of his time on the marijuana
crop. As evidence that he was not making a profit on the marijuana cultivation, he cited
the poor condition of his vehicle and only $300 in his bank account at the time of his
arrest.
Dubrawski testified that he planned to sell Vasquez the ten pack for $1,200 a
pound on the understanding that Vasquez was going to “broker it to a club,” a dispensary,
collective or organization of medical marijuana patients. He knew Vasquez through
Vasquez’s mother and had met him twice socially. When asked on cross-examination
what collective he believed Vasquez belong to, Dubrawski said, “I don’t know and I
don’t want to know.” Dubrawski denied that he ever sent marijuana through the United
States mail. The mailing receipt found in his house was from a package he mailed to his
12-year-old daughter and the mailing label was for a friend to whom he owed a debt (jam
and sourdough bread) for losing a football bet. When asked the purpose of the triple
beam scale found in his home, Dubrawski said, “I really don’t recall. That thing is so old
and . . . usually it’s used for baking . . . .” He denied using it to weigh marijuana.
Chris Conrad, who testified as a defense expert on marijuana cultivation,3 opined
that “possession of ten pounds of . . . bud in [the] context of a grow of 36 plants with five
3
Conrad testified about his experience with marijuana cultivation, but he was
never expressly accepted as an expert by the trial court. Conrad proceeded to testify
generally about marijuana cultivation without objection.
4
consumers” would not raise an inference of intent to sell. For multi-year cultivation,
overhead expenses included the cost of renting and maintaining the property year-round,
the cost of the caretaker’s labor, the cost of supporting the caretaker during the growing
season, the cost of 25 percent additional starter plants that die due to disease, a half-cubic
yard of amended soil per plant at a cost of about $60 a cubic yard, and transportation
costs. Many factors affected yield, including location, type of plant, and skill of the
grower, but according to a 1992 federal study, the average yield from a plant was four
ounces. Conrad testified that medical marijuana patients commonly smoke about three
pounds of marijuana a year (about five marijuana cigarettes a day) or eat about 12 to
19 pounds a year. He further testified that dispensaries commonly purchase marijuana
through a member who acts as a buyer or agent or through independent brokers, patients
who belong to multiple dispensaries and help match dispensaries with sources of
marijuana they want. A typical wholesale price for marijuana sales in the winter was
$1,200 per pound.
Keithly testified in rebuttal that marijuana growers in Lake County typically
reaped two to five pounds per plant and could reap as much as 15 pounds per plant,
depending on the marijuana strain and the skill of the grower. He testified that the
average medical marijuana patient in Lake County who smoked marijuana consumed one
to two marijuana cigarettes a day, or about one pound a year, although patients who ate
the drug would consume more. In his experience, marijuana growing collectives
maintained a binder of the collectives’ rules, members’ medical marijuana
recommendations, and laws that allegedly made the collective legal, but he did not find
such documentation in Dubrawski’s home. Further, only one person other than
Dubrawski appeared to be living in the home. Finally, Keithly opined that costs cited by
Dubrawski amounted to $5,350 to produce 43 pounds of marijuana, or $124 a pound.
B. Jury Instructions
The court provided the following instruction on Dubrawski’s medical marijuana
defense: “An offer to sell marijuana [and possession for sale of marijuana] is authorized
when qualified patients and/or persons with valid identification cards associate within the
5
State of California, in order collectively or cooperatively to possess and/or sell marijuana
for medical purposes. [¶] The authorization described above does not authorize any
individual or group to sell marijuana for profit. [¶] Qualified patient[s] means individuals
who have the right to obtain and use marijuana for medical purposes when that medical
use has been deemed appropriate and has been recommended by a physician. [¶] The
defense must produce evidence tending to show that his offering to sell marijuana and
possessing of marijuana for sale was for a medical purpose. [¶] The People have the
burden of proving beyond a reasonable doubt that the defendant was not authorized to
offer to sell marijuana [or possess marijuana for sale] for medical purposes as described
above. If the People have not met this burden you must find the defendant not guilty.”
The court further instructed that the charged crimes “require that a defendant act
with a specific intent or mental state. The specific intent or mental state required are
explained in the instructions for those crimes. [¶] The defendant is not guilty of either of
those crimes if he made an honest or good faith mistake about the law if the mistake
shows that he did not have the specific intent or mental state required for those crimes.
[¶] If you have a reasonable doubt about whether the defendant had the specific intent or
mental state required for the crimes . . . you must find him not guilty of those crimes.”
(CALCRIM No. 3411.)
C. Closing Arguments, Verdict, and Sentencing
In closing, the prosecutor argued there was no reasonable basis for Dubrawski’s
testimony that he thought Vasquez was buying marijuana for a collective. “ ‘I don’t
know and I don’t care,’ is that a good faith belief that you were doing something that
complies with the law?” She also questioned why Dubrawski would fear getting robbed
if he thought he was making a legal sale. The prosecutor then questioned the existence of
Dubrawski’s own collective, noting the lack of recordkeeping and Dubrawski’s failure to
mention such a collective during his interview with Keithly. Finally, she argued that the
sale was impermissibly for profit.
Defense counsel argued Dubrawski was “a naïve, well-meaning person . . . caught
in the snare of the misguided war on drugs as applied to marijuana.” He argued the
6
prosecution failed to prove that the sale was for profit because it failed to prove the
revenue from the sale exceeded the costs of cultivating the marijuana. He argued
Dubrawski genuinely believed he was selling to a collective and attributed his “I don’t
know and I don’t want to know” testimony to “a general concern or policy he had about
not having information getting out about that kind of stuff, because the word gets around
here in Lake County.” On rebuttal, the prosecutor again argued there was no evidence
Dubrawski had a good faith belief that the sale was legal or that the sale was not for
profit.
During deliberations, the jury asked for a replay of the recorded interview between
Keithly and Dubrawski. After further deliberations, the jury found Dubrawski guilty on
both counts. The court found that the offenses were violations of Dubrawski’s probation
on a prior offense. The court suspended imposition of sentence and placed Dubrawski on
three years of formal probation on condition he serve 180 days in jail. The court also
revoked Dubrawski’s prior probation and ordered him to serve 270 days in custody, to
run concurrently.
II. DISCUSSION
A. Failure to Instruct on Definitions of Cooperative, Collective, and Profit
Dubrawski argues the trial court erred in failing to define “cooperative,”
“collective,” and “profit” with respect to his medical marijuana defense.4 We conclude
that Dubrawski forfeited any error by failing to object below, and in any event the alleged
4
The heading to this argument in Dubrawski’s brief states the court erred in
failing to instruct the jury “that they must unanimously agree” on the elements of profit
and Dubrawski’s membership in a cooperative or collective. The subheadings and
discussion of this issue, however, state that the court erred in failing to define the terms
“cooperative,” “collective,” and “profit.” The heading and body of Dubrawski’s related
ineffective assistance of counsel argument again refers to trial counsel’s failure to request
a unanimity instruction. However, these references fail to raise the unanimity issue
appropriately, and we consider the argument forfeited. (Cal. Rules of Court,
rule 8.204(a)(1)(B); see River West, Inc. v. Nickel (1987) 188 Cal.App.3d 1297, 1300 &
fn. 2 [issue not clearly raised on appeal will not be addressed on the merits].)
7
error was harmless. Because of this lack of prejudice, his related ineffective assistance of
counsel claim also fails.
The Compassionate Use Act of 1996 (CUA) (§ 11362.5), which was adopted by
voter initiative as Proposition 215, provides that “Section 11357, relating to the
possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall
not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates
marijuana for the personal medical purposes of the patient upon the written or oral
recommendation or approval of a physician.” (§ 11362.5, subd. (d).) The later enacted
Medical Marijuana Program (MMP) (§ 11362.7 et seq.) provided for issuance of
identification cards to persons entitled to CUA protection to preclude arrest for certain
marijuana-related crimes.5 (§ 11362.71, subds. (a)(1), (e).) The MMP also provided that
“[q]ualified patients, persons with valid identification cards, and the designated primary
caregivers of qualified patients and persons with identification cards, who associate
within the State of California in order collectively or cooperatively to cultivate marijuana
for medical purposes, shall not solely on the basis of that fact be subject to state criminal
sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.”
(§ 11362.775, subd. (a), italics added.)6 To be legal under the MMP, collective or
cooperative cultivation and distribution of marijuana must be not for profit.
(§ 11362.765, subd. (a); People v. London (2014) 228 Cal.App.4th 544, 553–554; People
v. Jackson (2012) 210 Cal.App.4th 525, 538–539.)
Although the trial court correctly instructed the jury on the aforementioned
principles, Dubrawski contends the court should have gone further and defined for the
jury three of the relevant terms in the instruction. However, “a party may not complain
on appeal that an instruction correct in law and responsive to the evidence was too
5
Possession of a valid MMP identification card is not, however, a prerequisite to a
claim of CUA protection. (§ 11362.71, subd. (f).)
6
This provision will be superseded by the 2015 Medical Marijuana Regulation
and Safety Act (see Bus. & Prof. Code, § 19300 et seq., added by Stats. 2015, ch. 689,
§ 4) one year after the Bureau of Medical Marijuana Regulation commences issuing
licenses. (§ 11362.775, subd. (b).)
8
general or incomplete unless the party has requested appropriate clarifying or amplifying
language.” (People v. Andrews (1989) 49 Cal.3d 200, 218.) Here, Dubrawski’s counsel
initially proposed a special instruction that defined or amplified on the terms. The
instruction defined a “collective or cooperative” as “a business entity that operates on a
non-profit basis for the benefit of its members.” The instruction explained that
Dubrawski was not guilty if the “collective or cooperative operated on a non-profit basis
for the benefit of patients” and Dubrawski “did not make a profit based on any
remuneration, financial or otherwise, she [sic] received from this collective or
cooperative.” Dubrawski, however, withdrew the proposed instruction and expressly
agreed to the instructions that the court provided to the jury. The claim is therefore
forfeited.
In any event, the alleged error was harmless. The issue critical to Dubrawski’s
medical marijuana defense was not whether he belonged to a nonprofit collective, but
whether he reasonably believed he was making a lawful sale to Vasquez. First,
Dubrawski has not shown, even assuming Vasquez represented another collective, that
the sale would have been lawful. The plain language of the MMP immunizes collectives
from criminal prosecution simply for “cultivation” (§ 11362.775, subd. (a)) and
“distribution” (see § 11362.765, subd. (a)), but at the direction of the Legislature, the
Attorney General has adopted guidelines for lawful collective cultivation and distribution
(Cal. Atty. Gen., Guidelines for the Security and Non-diversion of Marijuana Grown for
Medical Use (Aug. 2008) [as of Mar. 21, 2016] (Guidelines)), which are entitled
to deference by this court (People v. Hochanadel (2009) 176 Cal.App.4th 997, 1011).
The Guidelines permit the exchange of marijuana to collective members for cash (i.e.,
sales) if the amount paid is reasonably calculated to cover the collective’s overhead costs
and operating expenses. (Guidelines, § IV.B.6(c), p. 10.) However, sales to nonmembers
are expressly prohibited: “Collectives and cooperatives should acquire marijuana only
from their constituent members . . . . Nothing allows marijuana to be purchased from
outside the collective or cooperative for distribution to its members. Instead, the cycle
9
should be a closed-circuit of marijuana cultivation and consumption with no purchases or
sales to or from non-members. . . . [¶] . . . [N]othing allows individuals or groups to sell
or distribute marijuana to non-members.” (Guidelines, § IV.B.4-5, p. 10.) Appellate
courts have similarly held that sales outside the collective are prohibited. (People v.
Anderson (2015) 232 Cal.App.4th 1259, 1277 [“[t]hese cases endorse a conception of a
medical marijuana collective . . . according to which . . . all the buying and selling is done
on a nonprofit basis within the collective . . . [and] there are no transactions with
nonmembers”].) Dubrawski cites no contrary legal authority.7 Under the Guidelines,
Dubrawski’s sale to Vasquez would be unlawful even if Vasquez belonged to another
collective.
Second, even if Dubrawski’s asserted interpretation of the MMP were correct, it is
not reasonably probable that a properly instructed jury would find that Dubrawski
reasonably believed that Vasquez was a member of another collective. Dubrawski
testified at trial that he believed Vasquez was going to “broker [the marijuana] to a club,”
i.e., a dispensary, collective or organization of medical marijuana patients. (Italics
added.) He did not testify that he believed Vasquez represented a collective (i.e., that
Dubrawski was selling to a collective). Moreover, when the prosecutor asked Dubrawski
what collective he thought Vasquez belonged to, Dubrawski responded, “I don’t know
and I don’t want to know,” undermining the suggestion that he could have believed in
good faith the sale was lawful. During the recorded phone conversation, Dubrawski
mentioned “a third person” and “some guy” who was supposed to give Vasquez purchase
money for the marijuana; he did not refer to a collective or dispensary. During his
testimony, Dubrawski said he knew Vasquez through his mother and had only met him
twice socially. He did not provide any factual foundation for his espoused belief that
7
Dubrawski’s “expert’s” testimony suggested that marijuana could be transferred
between collectives by way of members belonging to more than one collective. Conrad’s
legal opinion was, however, irrelevant. Dubrawski also clearly testified that Vasquez
was not a member of Dubrawski’s collective, so this hypothetical exception, even if
valid, would not assist him.
10
Vasquez belonged to a collective. During the recorded interview, Dubrawski claimed
generally that he did not know the sale of marijuana to Vasquez would be illegal, but he
never claimed he believed he was selling the marijuana to another collective. On the
contrary, Dubrawski expressed concern that Vasquez was on methamphetamine and
might rob him—details less consistent with a legal sale than an illegal one. Dubrawski
told Keithly he was selling the marijuana for as much as he could get because he needed
money to live on. He never claimed he was selling excess beyond the needs of the
collective to cover the costs of the cultivation. Further, he responded to Keithly’s
question about his “usual” price without correcting the clear implication that selling
marijuana was a regular activity for Dubrawski. On this record, any alleged error in the
jury instructions was not prejudicial.
Because the alleged failure to instruct was not prejudicial, we also reject
Dubrawski’s argument that his counsel was ineffective in failing to request the
instructions. (See People v. Waidla (2000) 22 Cal.4th 690, 719 [consideration of
deficient performance of counsel unnecessary where no prejudice is found]; id. at p. 718
[prejudice is the reasonable probability of an adverse effect on case outcome].)8
B. Failure to Request Mistake of Fact Instruction
Dubrawski argues his counsel rendered ineffective assistance because he failed to
request a mistake of fact instruction to bolster Dubrawski’s defense. We conclude the
instruction was inapplicable on the facts of this case.
“To establish ineffective assistance under the Sixth Amendment’s counsel clause,
[a defendant] must demonstrate both deficient performance under an objective standard
of professional reasonableness and prejudice under a similarly objective standard of
reasonable probability of an adverse effect on the outcome. [Citation.] To establish
8
While we find Dubrawski’s alleged ineffective assistance of counsel claim fails
for lack of a showing of prejudice, we agree with the People that defense counsel may
well have concluded that the originally imposed clarifying instruction would only
highlight the lack of evidence that Vasquez was a member of a cooperative or collective.
11
ineffective assistance under the counsel clause of article I, section 15 of the California
Constitution, he must do the same.” (People v. Waidla, supra, 22 Cal.4th at p. 718.)
“[D]efense counsel has a duty to request all instructions that are necessary to
explain the legal theories of defense [citation]. If the defendant had an honest and
reasonable belief in the existence of circumstances, which, if true, would make the act an
innocent act, the mistake of fact defense applies. [Citation.] A mistake of fact occurs
when a person understands the facts to be other than what they are. [Citation.] ‘. . . The
defense arises only where the defendant misperceives an objective state of existing fact
. . . .” ’ ” (People v. Orlosky (2015) 233 Cal.App.4th 257, 275.) “In assessing the
evidence to determine whether to give an instruction, the trial court should not measure
the substantiality of the evidence by weighing the credibility of the witnesses. That duty
is within the exclusive province of the jury. However, the court need not give the
instruction if the evidence is minimal and insubstantial.” (People v. Russell (2006)
144 Cal.App.4th 1415, 1430.)
Dubrawski argues that the mistake of fact instruction was relevant to several
issues: whether he belonged to a qualified collective; whether the marijuana he planned
to sell was the excess of his collective’s harvest; whether he understood the marijuana
sale to Vasquez was a sale to a collective; and whether he was “permitted” to sell the
marijuana to Vasquez. Even if the instruction was relevant to the alleged collective
qualification and harvest excess, any deficient performance by Dubrawski’s counsel with
respect to these issues was not prejudicial for the reasons discussed regarding the other
alleged instructional error. Also for those same reasons, evidence that Dubrawski
understood the sale to Vasquez was a sale to a collective was “minimal and
insubstantial.” (People v. Russell, supra, 144 Cal.App.4th at p. 1430.) His evidence did
not merit the instruction, and an erroneous failure to give it would not have resulted in
prejudicial error. Finally, any mistake Dubrawski may have made as to whether he was
“permitted” to sell the marijuana to Vasquez would have been a mistake of law, on which
the jury was properly instructed. (See People v. Urziceanu (2005) 132 Cal.App.4th 747,
12
776 [erroneous belief a sale was lawful under CUA was mistake of law, not fact].) There
was no error.
C. Probation Conditions
Dubrawski challenges three of his conditions of probation. We conclude two of
his claims are forfeited for failure to object below and the third condition requires
modification.
“[C]ourts possess broad discretion in determining suitability for probation and the
selection of probation conditions. (Pen. Code, § 1203, subd. (b); [citation].) ‘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
. . . .” ’ (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted.) [¶] A probation
condition is constitutionally overbroad when it substantially limits a person’s rights and
those limitations are not closely tailored to the purpose of the condition. [Citation.] It is
not enough to show the government’s ends are compelling; the means must be carefully
tailored to achieve those ends.” (People v. Harrisson (2005) 134 Cal.App.4th 637, 641–
642.)
A challenge to a probation condition as unreasonable under People v. Lent, supra,
15 Cal.3d 481, cannot be raised on appeal unless an objection was raised in the trial
court. However, an objection on constitutional grounds such as overbreadth or vagueness
may be raised for the first time of appeal if it presents a pure question of law that can be
decided without reference to the sentencing record in the trial court. (In re Sheena K.
(2007) 40 Cal.4th 875, 885, 889.) We review reasonableness challenges for abuse of
discretion and constitutional challenges de novo. (In re Shaun R. (2010) 188 Cal.App.4th
1129, 1143.)
1. Maintain Gainful Employment
Dubrawski first challenges the condition that he “maintain full time, gainful
employment except when prevented from doing so due to physical/mental limitations
verified by written documentation, or any custody time ordered by the court, or as a result
13
of any residential drug treatment requirements that may be imposed by the drug treatment
provider or the probation officer.” This argument is forfeited.
Dubrawski purports to challenge this condition on constitutional grounds, but he
identifies no constitutional right allegedly infringed. He notes that a violation of this
condition could lead to a loss of his liberty, suggesting violation of due process rights, but
loss of liberty is true of any probation condition and this fact alone does not implicate the
In re Sheena K. exception to forfeiture. Dubrawski’s substantive argument regarding the
challenged condition is instead a reasonableness argument based on People v. Lent,
supra, 15 Cal.3d 481: he argues the condition is not reasonably related to his offense or
to future criminality. However, this argument is forfeited by failure to make any
contemporaneous objection. In any event, Dubrawski’s claim that the condition fails to
account for “ordinary and expected unemployment” that might occur despite
Dubrawski’s good faith efforts to seek and maintain a job is misplaced. It would be an
abuse of discretion for the trial court to revoke probation based on a circumstance beyond
the probationer’s control. (See People v. Zaring (1992) 8 Cal.App.4th 362, 377–379.)
2. Prohibition on Possession of Scales
Dubrawski next challenges the condition that he “not possess . . . any scales or
weighing devices denominated in units of grams or pounds.” This claim too is forfeited.
Again, Dubrawski purports to challenge the condition on constitutional grounds
but fails to identify an infringed constitutional right. He complains that the condition
unreasonably prohibits his possession of a bathroom scale, but this is a challenge that is
forfeited by his failure to raise an objection below. In any event, it is not an abuse of
discretion to prohibit a defendant convicted of drug sales from owning materials
commonly used in such sales (including zip-lock bags), even if such restrictions make
other aspects of the defendant’s life less convenient.
3. No Involvement with Marijuana Cultivation or Distribution
Dubrawski next challenges the condition that he “not be involved in the
cultivation, harvesting, or distribution of marijuana. The defendant will not be present,
involved, or [sic] transporting of goods and equipment to or from marijuana cultivation
14
sites. The defendant will not possess more than 28.5 grams of marijuana on his person, at
his residence, or in his vehicle” (Condition No. 10). We agree the first two sentences of
the condition are impermissibly vague and must be modified.
Because Dubrawski challenges Condition No. 10 on the ground that it is
unconstitutionally vague, the claim is not forfeited by his failure to raise an objection
below. “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of
preventing arbitrary law enforcement and providing adequate notice to potential
offenders’ [citation], protections that are ‘embodied in the due process clauses of the
federal and California Constitutions. [Citation.]’ [Citation.] . . . [¶] A probation
condition ‘must be sufficiently precise for the probationer to know what is required of
him, and for the court to determine whether the condition has been violated,’ if it is to
withstand a challenge on the ground of vagueness.” (In re Sheena K., supra, 40 Cal.4th
at p. 890.)
Dubrawski first argues the word “involved” is too broad to provide fair notice of
what conduct is prohibited. We agree. Dubrawski specifically complains that it is not
clear whether this condition prohibits him from obtaining marijuana for his personal
medical use from a collective dispensary, which arguably would “involve” him in
distributions within the collective. The People contend such conduct is impliedly
permitted by another term of the same probation condition that allows him to possess up
to 28.5 grams of marijuana. Yet another probation condition (No. 9) allows him to
possess marijuana with “legal authorization.” We do not agree that the implications of
these provisions permitting possession sufficiently clarify the means by which Dubrawski
may obtain medical marijuana while on probation. The probation conditions are
obviously not coterminous with legal restrictions on medical marijuana sales. Given that
collectives are statutorily defined as collectively cultivating marijuana, Dubrawski
reasonably questions whether any participation in a collective (including a dispensary)
would “involve” him in the cultivation of marijuana within the meaning of the probation
condition. To remediate this vagueness problem, we order the first two sentences of the
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condition modified to read: “The defendant will not personally participate in the
cultivation, harvesting or distribution of marijuana except by obtaining from a dispensary
marijuana for his own personal use as permitted by law. The defendant will not be
present at marijuana cultivation sites and will not personally participate in transportation
of goods and equipment to and from such cultivation sites.”
Dubrawski further challenges Condition No. 10 because it lacks a personal
knowledge requirement. The People agree that a personal knowledge requirement should
be implied into the condition, but argues it is unnecessary for this court to modify the
condition to make such a requirement express. As we are ordering the condition
modified in any event, we shall incorporate a personal knowledge requirement in the
modification. We order the relevant provisions of Condition No. 10 to be further
modified to read: “The defendant will not knowingly personally participate in the
cultivation, harvesting or distribution of marijuana except by obtaining from a dispensary
marijuana for his own personal use as permitted by law. The defendant will not
knowingly be present at marijuana cultivation sites and will not knowingly personally
participate in transportation of goods and equipment to and from such cultivation sites.”
III. DISPOSITION
The judgment and sentence are affirmed except that Condition No. 10 of
Dubrawski’s terms of probation is ordered modified to read: “The defendant will not
knowingly personally participate in the cultivation, harvesting or distribution of
marijuana except by obtaining from a dispensary marijuana for his own personal use as
permitted by law. The defendant will not knowingly be present at marijuana cultivation
sites and will not knowingly personally participate in transportation of goods and
equipment to and from such cultivation sites. The defendant will not possess more than
28.5 grams of marijuana on his person, at his residence, or in his vehicle.”
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_________________________
BRUINIERS, J.
WE CONCUR:
_________________________
JONES, P. J.
_________________________
SIMONS, J.
A143359
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