People v. Munoz

Filed 2/5/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama) ----

THE PEOPLE, C075983

Plaintiff and Respondent, (Super. Ct. No. NCR77911)

v.

JOSE GUADALUPE MUNOZ,

Defendant and Appellant.

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

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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