California Cases May 19, 2020: People v. Matthews

Case Description

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. SCD278901)

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed in part, modified in part, and remanded with directions.

Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.

Page 2

A jury convicted Jehu Allen Matthews of transportation for sale of more than 28.5 grams of cannabis (Health & Saf. Code, § 11360, subd. (a)(2); count 1) and possession of cannabis for sale (Health & Saf. Code, § 11359, subd. (b); count 2). The court imposed the middle term of three years for count 1, with the term split to serve two years in custody and one year under mandatory supervision. The court imposed the middle term of two years for count 2, but stayed punishment pursuant to Penal Code section 654.

Matthews contends: (1) the court deprived him of his constitutional rights by denying him an opportunity to present a medical marijuana affirmative defense, (2) his enhanced sentence should be reversed because the court erred in allowing Matthews to stipulate to prior conviction allegations without advising Matthews of his right to a jury trial on the allegations, and (3) several of his conditions of mandatory supervision should be stricken or modified because they are unconstitutionally vague or overbroad. The People concede general condition 1.g., which prohibits Matthews from having contact with a co-defendant, should be stricken because there was no co-defendant in this case. Therefore, we remand with directions to strike condition 1.g. We conclude there is no merit to Matthews's other contentions and, thus, affirm the judgment in all other respects.

Page 3

On September 28, 2018, a San Diego Police Officer conducted a traffic stop of a vehicle driven by Matthews. The officer detected a "strong, overwhelming odor of fresh marijuana" as she approached the vehicle. The officer found in the vehicle 13 small bags of marijuana under the driver's seat area and in the center console area along with two large bags of marijuana in the backseat area on the driver's side and 100 dime-sized clear plastic bags in the front driver's door and the passenger area. The officer also located a digital scale in the center console, a strainer, cigar wrappers, and three cell phones. The total weight of the marijuana found in the vehicle was 2.2 pounds, which is approximately 1,000 grams. Matthews's phone contained numerous messages indicating marijuana sales.

The People presented evidence pursuant to Evidence Code section 1101 regarding prior arrests and convictions to establish a pattern of conduct. At the People's request, the court took judicial notice of Matthews's prior convictions in February 2016 and August 2016 for transporting marijuana for sale and unlawful possession of marijuana for sale.

The People also presented evidence regarding the circumstances of prior arrests. Matthews was arrested and found with more than two pounds of marijuana (approximately 940 grams) in February 2016, which was packaged in small clear plastic bags.

Page 4

Matthews was stopped for a stop sign violation in August 2016. As the officer talked with Matthews at the driver's side window, the officer smelled the odor of marijuana. The officer found several plastic bags in various sizes containing marijuana. The total weight of the marijuana found on that occasion was more than 1,000 grams. A cell phone located in the vehicle contained numerous messages regarding marijuana sales and deliveries.

Another officer stopped Matthews for driving without a front license plate in June 2017. The officer detected the odor of marijuana when he approached the vehicle. In a search of the vehicle, the officer located multiple plastic bags containing marijuana, which weighed 420 grams in total. The officer also located in the vehicle a digital scale, a list reflecting sales and amounts owed, and over $500 in cash.

Matthews contends the court deprived him of his constitutional right to due process under the Fourteenth Amendment and the right to present a complete defense under the Sixth Amendment by denying him an evidentiary hearing to present a defense under the Compassionate Use Act and the Medical Marijuana Program Act. We disagree.

Page 5

We first review the applicable law for the proposed affirmative defense. The Compassionate Use Act (Health & Saf. Code, § 11362.5, subd. (a); CUA) was approved by voter initiative in 1996 "[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana ...." (Health & Saf. Code, § 11362.5, subd. (b)(1)(A).) The measure provides an affirmative defense to prosecution for the crimes of possession and cultivation of marijuana. ( People v . Dowl (2013) 57 Cal.4th 1079, 1085-1086.) However, the statute does not authorize the possession for sale or the sale of marijuana. (Health & Saf. Code, § 11362.5, subd. (b)(2); People v . Urziceanu (2005) 132 Cal.App.4th 747, 773.)

The Legislature enacted the Medical Marijuana Program Act (Health & Saf. Code, § 11362.7 et seq.; MMPA) in 2003 to clarify the scope of the CUA and to address issues not included within the CUA. ( People v . Wright (2006) 40 Cal.4th 81, 93.) The MMPA "provides a[n] ... affirmative defense to criminal liability for qualified patients, caregivers, and holders of valid identification cards who collectively or cooperatively cultivate marijuana." ( City of Claremont v . Kruse (2009) 177 Cal.App.4th 1153, 1171 citing Health & Saf. Code, § 11362.775.) It does not, however, authorize the distribution of marijuana for profit. (Health & Saf. Code, §§ 11362.7, subds. (d), (f), (g), 11362.765, subds. (a), (b).) "A defendant invoking the [MMPA] as a defense bears the burden of producing evidence in support of that defense." ( People v . Solis (2013) 217 Cal.App.4th 51, 57.)

Page 6

"On the face of the statute, to be entitled to a defense under [Health and Safety Code] section 11362.775, a defendant must, first, be either a qualified patient, person with a valid identification card or a designated primary caregiver.[ ] Second, the defendant must associate with like persons to collectively or cooperatively cultivate marijuana." ( People v . Colvin (2012) 203 Cal.App.4th 1029, 1037.) Although Health and Safety Code section 11362.775 "does not specify what the Legislature meant by an association of persons who engage in collective or cooperative cultivation for medical purposes," "courts have concluded the provision properly encompasses relatively large scale enterprises that distribute marijuana to qualified patients, so long as the enterprise operates on a nonprofit basis and in a manner consistent with distribution for medical purposes." ( People v . Orlosky (2015) 233 Cal.App.4th 257, 267-268.) Thus, the essential elements of the collective cultivation defense are "(1) qualified patients [or primary caregivers of such patients] who have been prescribed marijuana for medical purposes, (2) the patients [or primary caregivers] collectively associate to cultivate marijuana, and (3) the patients are not engaged in a profit-making enterprise." ( Id . at p. 269.)

Page 7

Here, the People filed a motion to preclude Matthews from presenting a medical marijuana defense under the CUA and the MMPA contending he could not present evidence for such a defense. The People requested an Evidence Code section 402 hearing (402 hearing) on the issue before evidence was presented at trial. Defense counsel orally opposed the motion to preclude the defense before the People presented any testimony or evidence in their case in chief. The court discussed the possibility of a 402 hearing, but asked defense counsel for an offer of proof of what evidence could provide a basis for the defense.

Since the People wanted to present evidence of Matthews's prior arrests for similar conduct and proposed exhibits referring to the fictitious business name Matthews used, defense counsel asked for permission to cross-examine the officers testifying in the People's case in chief about evidence and statements Matthews made about the business and investigations the officers made regarding the business "to see if this is a legitimate defense."

The court noted that would be an issue for a 402 hearing because trial is not a discovery proceeding. The court stated, "based on what's before me, I would not allow you to do that because I don't think there's any reason for raising the defense."

The court asked how the evidence would show Matthews could meet the requirements to establish a defense and again asked for an offer of proof. Defense counsel stated the police officers looked up the fictitious business name and previously had located tax records and payments consistent with a partnership agreement. Counsel asked for permission to question the officers regarding the paperwork found during the

Page 8

investigation of the business " so that Mr . Matthews doesn't have to essentially waive his Fifth Amendment privilege against self-incrimination to testify in a 402 hearing before deciding if he's actually going to testify in his defense at trial ." (Italics added.) Counsel asked the court to reserve on the motion to exclude the defense until after the People presented their case in chief.

The court continued to ask defense counsel what evidence she thought she could elicit from the officers to show Matthews could qualify for the affirmative defense. Counsel mentioned statements Matthews made about the business in prior cases and photographs located on his phone in prior cases of medical marijuana cards. Defense counsel argued she would be prevented from presenting a complete defense if the officers could testify regarding his prior statements, but she could not cross-examine them about the business. The People contended Matthews's prior statements and evidence were insufficient to establish a defense that he operated a legitimate collective or was a primary caregiver of a qualified patient.

The People agreed not to mention Matthews's fictitious business name or bring it into evidence. They also agreed they would not introduce his prior statements in their case in chief.

The court granted the motion to exclude evidence regarding the defense in the People's case, but stated the ruling was without prejudice. The court based its ruling on the offer of proof and determined evidence of the business was not relevant to the People's case to establish a plan or pattern under Evidence Code section 1101, subdivision (b). The court precluded the People from presenting evidence regarding the

Page 9

business saying they could not have their cake and eat it too. If Matthews chose to testify regarding the business, the court said it would allow the defense to recall certain prosecution witnesses and the People could present rebuttal evidence on the issue.

Considering the whole record, we conclude the court did not abuse its discretion or violate Matthews's constitutional rights in granting the motion to preclude evidence of the affirmative defense during the People's case or in failing to conduct a formal evidentiary hearing on the issue prior to trial. Matthews concedes in his reply brief the court complied with Evidence Code section 402 by considering the issue outside the presence of the jury.

Contrary to Matthews's assertion, however, defense counsel did not actually request an evidentiary hearing prior to trial. Unlike in People v . Jackson (2012) 210 Cal.App.4th 525, 531, Matthews did not offer to testify in a 402 hearing. Instead, his counsel asserted he should not be required to testify in a 402 hearing and potentially waive his Fifth Amendment privilege before he decided whether he wanted to testify at trial. Defense counsel did not offer independent evidence in support of the defense and did not propose calling and questioning the officers prior to trial. Rather, counsel wanted to examine the officers on the issue during trial and asked the court to defer ruling on the defense until after the People's case. As the trial court observed, however, based on the offer of proof, the officers' testimony about finding evidence of a fictitious business name, some business cards, and photographs would not be sufficient to support a defense that Matthews operated a legitimate cooperative under the MMPA.

Page 10

Finally, the court did not preclude the defense entirely. It affirmed it was the defense burden to establish entitlement to an affirmative defense and gave Matthews the opportunity to decide if he wished to present evidence of the affirmative defense in the defense case. The court struck a balance by precluding the People from presenting evidence of Matthews's fictitious business name to support their case on the sale of marijuana issue. Matthews ultimately declined to testify on his own behalf and the defense presented no additional evidence. We conclude the court carefully considered the issue and did not deny Matthews due process or the right to present a defense.

Matthews's prior convictions for transportation of marijuana for sale and possession of marijuana with intent to sell enhanced counts 1 and 2 from misdemeanors to felonies. (Health & Saf. Code, §§ 11360, subd. (a)(3)(b), 11359, subd. (c).) His probation denial priors enhanced the likelihood the court would deny probation in this case. (Pen. Code, § 1203, subd. (e)(4).) Matthews contends his sentence should be set aside because the court did not advise him of his right to a jury trial before accepting an admission on the allegations about his prior convictions. We disagree.

As a rule, a defendant may knowingly and intelligently waive his constitutional rights to a jury trial. ( People v . Sivongxxay (2017) 3 Cal.5th 151, 166.) There is no "specific method for determining whether a defendant has made a knowing and intelligent waiver of a jury trial in favor of a bench trial. We instead examine the totality of the circumstances. ( Id . at p. 167.) Some circumstances we may consider include

Page 11

whether the defendant was represented by counsel, the jury waiver colloquy, events before and after the waiver was entered, and the defendant's prior experience with the criminal justice system. ( Id . at pp. 167-168, 173 and fn. 8.)

In this case, Matthews specifically requested bifurcation of the priors in his trial brief. He also requested the court to "conduct a bench trial as to the allegations."

Matthews, who has prior experience with the criminal justice system, was present with his counsel at two pretrial hearings where the court discussed the jury waiver on the allegations. At the hearing on December 14, 2018, Matthews was arraigned on an amended information. He pleaded not guilty to all charges and denied all accompanying allegations.

The court and counsel discussed the defense motion to bifurcate the trial on the prior conviction allegations (Health & Saf. Code, § 11360, subd. (a)(2)), which the People opposed because they wanted to present evidence of Matthews's prior convictions on similar charges in their case in chief. Defense counsel argued the allegations on counts 1 and 2 were not properly addressed by a jury because they elevated the charges from a misdemeanor to a felony. The court and counsel also discussed bifurcating the probation denial priors (Penal Code, § 1203, subd. (e)(4)) based on the same cases in which he had prior convictions. The court advised Matthews and his counsel he had a right to a jury trial on the allegations based on Supreme Court precedent. The court noted it could take judicial notice of its own records, so it was not clear what issues of fact there would be for a jury. However, the court advised defense counsel to discuss the issue of a jury trial with Matthews. Defense counsel agreed to do so.

Page 12

At the next pretrial hearing, on December 17, 2018, the court granted the defense request to bifurcate the trial on the issue of the priors and noted the defendant waived jury trial on the allegations. Neither Matthews nor his counsel objected to the court's statement about the jury waiver.

Contrary to Matthews's contention on appeal, Matthews did not stipulate to or admit the prior convictions during trial. Rather, at the People's request, the court took judicial notice of its records regarding the prior convictions and explained the limited purpose for which the jury could consider the uncharged offenses under CALCRIM 375.

Before the jury returned its verdicts, the court noted there were unresolved allegations attached to counts 1 and 2 regarding Matthews's prior convictions and probation denial priors. The court stated it thought it was correct that "those were bifurcated for trial and there's been a jury waiver. So we won't need the jury to resolve those issues." Neither Matthews nor his counsel objected to the court's statement or requested a jury trial on these allegations.

After the verdicts were read, the court again commented that there was a bifurcation and a jury waiver on the issue of the prior conviction allegations, but confirmed Matthews was entitled to a bench trial. After discussing the matter with counsel, Matthews decided to admit the priors. The court advised Matthews he had a right to a jury trial on the prior conviction allegations accompanying counts 1 and 2,

Page 13

which he had waived. The court further advised him he had a right to a bench trial on those allegations. Matthews stated he understood his rights. He agreed to waive a bench trial and to admit as true the prior conviction allegations. The court separately advised Matthews of his right to trial on the issue of the probation denial priors, noting he had waived the right to a jury. Matthews again agreed he understood and agreed to give up his right to even a bench trial. Considering the totality of the circumstances, we conclude Matthews knowingly and intelligently waived a jury trial on the allegations.

In any event, even if the jury waiver regarding the prior allegations was ineffective, Matthews forfeited the contention by failing to object. By his acquiescence, he agreed to a bench trial, which is adequate due process for prior conviction allegations. ( People v . Cross (2015) 61 Cal.4th 164, 172.) The Supreme Court has clarified "there is no constitutional right to a jury trial on a prior conviction allegation." ( Ibid .) Rather, "due process requires 'adequate notice' and 'an opportunity to challenge the accuracy and validity of the alleged prior convictions.' " ( Id . at p. 173.)

Matthews had both notice and an opportunity to challenge his alleged prior convictions in a bench trial. The court fully advised Matthews of his right to a bench trial on the validity of the allegations. After this advisement, Matthews agreed to waive the bench trial and to admit the allegations. Therefore, there was no error.

Prior to sentencing, Matthews reviewed the general conditions of mandatory supervision with the probation department and agreed to abide by the general conditions

Page 14

as well as any conditions imposed by the court. Matthews requested a split sentence and did not object to the terms of supervision at the time of sentencing. On appeal, Matthews challenges four conditions.

Conditions for release on mandatory supervision, as part of a split sentence, are examined by the standards for parole supervision, which are analyzed under the standards of validity and reasonableness developed for probation conditions. ( People v . Martinez (2014) 226 Cal.App.4th 759, 763-764.) Generally, "we ' "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 .).) However, we review de novo constitutional challenges to probation conditions. ( In re I . V . (2017) 11 Cal.App.5th 249, 261 ( I . V .).)

A condition of probation or supervision 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 ., supra , 7 Cal.5th at p. 1118, quoting People v . Lent (1975) 15 Cal.3d 481, 486.) All three prongs of the Lent test must be satisfied before a reviewing court will invalidate a probation term. ( Ricardo P ., at p. 1118; People v . Relkin (2016) 6 Cal.App.5th 1188, 1194 ( Relkin ).)

"A probation condition imposing limits on constitutional rights must be closely tailored to its legitimate objective to avoid being invalidated as unconstitutionally overbroad. [Citation.] ' "The essential question in an overbreadth challenge is the

Page 15

closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." ' " ( People v . Patton (2019) 41 Cal.App.5th 934, 946 ( Patton ).)

"Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal." ( In re Sheena K . (2007) 40 Cal.4th 875, 880 ( Sheena K .).) An exception applies to the forfeiture rule if the challenge presents a facial constitutional challenge presenting "a pure question of law, easily remediable on appeal by modification of the condition." ( Id . at p. 888.) "An alleged constitutional defect that is 'correctable only by examining factual findings in the record or remanding to the trial court for further findings' is not a facial constitutional challenge, and traditional forfeiture principles apply." ( I . V ., supra , 11 Cal.App.5th at p. 261.)

The People concede, and we agree, condition 1.g. prohibiting contact with "the co-defendant(s)" should be stricken because Matthews had no co-defendant in this case. Therefore, we direct the trial court on remand to strike this condition.

Matthews challenges as unconstitutionally vague condition 1.j., which requires him to "provide true name, address, and date of birth if contacted by law enforcement. Report contact or arrest in writing to the [probation officer] within [seven] days. Include the date of contact/arrest, charges, if any, and the name of the law enforcement agency."

Page 16

A vagueness challenge presents a facial constitutional challenge we may address without examining the record. Therefore, it is not subject to forfeiture. ( I . V ., supra , 11 Cal.App.5th at p. 261.)

A probationer must be able to know what is expected or prohibited for a valid probation condition that limits otherwise lawful activity. In Sheena K ., the juvenile was ordered not to associate with persons who are disapproved by the probation officer. The court found the condition to be vague and overbroad. Because the condition did not have a knowledge requirement, the juvenile would not know who to avoid. ( Sheena K ., supra , 40 Cal.4th at p. 890.)

In Relkin , supra , 6 Cal.App.5th at pages 1196-1198, the court dealt with a condition which required the defendant to report any contact with any peace officer. The defendant contended that such requirement was vague. The court agreed, stating: "the portion of the condition requiring that defendant report 'any contacts with ... any peace officer' is vague and overbroad and does indeed leave one to guess what sorts of events and interactions qualify as reportable." ( Id . at p. 1197.)

In contrast to Relkin , condition 1.j. requiring Matthews to "[p]rovide true name, address, and date of birth if contacted by law enforcement" would appear to a reasonable, objective reader to refer to contacts initiated by a law enforcement officer in which the officer requests that information. This would not include mere greetings by law enforcement officers or conversations with officers at events attended by Matthews. Further, the requirement that Matthews report the "contact or arrest" and include the "name of the law enforcement agency" indicates the interaction must be of the type and

Page 17

nature that either the law enforcement officer supplies that information, or that Matthews is aware of this information because the nature of the "contact" was sufficiently meaningful. A reasonable reading of the condition sufficiently differentiates between casual, random interactions between Matthews and a law enforcement officer such as the exchange of pleasantries and situations in which Matthews is either a witness to a crime or is specifically stopped and questioned by a law enforcement officer. The mere fact that there " ' " 'may be difficulty in determining whether some marginal or hypothetical act is covered by [a condition's] language' " ' " does not render the condition "impermissibly vague." ( I . V ., supra , 11 Cal.App.5th at p. 261.) We, therefore, reject the vagueness challenge to condition 1.j.

Matthews challenges condition 1.k., requiring Matthews to obtain consent from the probation officer before leaving the County of San Diego as improperly implicating his constitutional right to travel and as unconstitutionally overbroad or vague.

Matthews did not object to this condition or request clarification and thereby forfeited his challenge. To the extent Matthews's challenge is based on a constitutional right to travel, we reject the claim that the condition is unreasonable. "While all citizens enjoy a federal constitutional right to travel from state to state [citation], that right is not absolute and may be reasonably restricted in the public interest." ( Relkin , supra , 6 Cal.App.5th at p. 1195.) Here, like the defendant in Relkin , Matthews was convicted of crimes involving the sale and transportation of marijuana in his vehicle. The condition requiring permission to travel out of the County of San Diego is "reasonably related to

Page 18

preventing future criminality by placing a reasonable limitation on defendant's unfettered ability to travel." ( Ibid .) It does not prohibit travel altogether. (See In re White (1979) 97 Cal.App.3d 141, 144-147 [outright travel ban was overly broad].)

Unlike in People v . Bauer (1989) 211 Cal.App.3d 937, 944, where the condition appeared designed to prohibit the defendant from living with his protective parents rather than to address an issue related to his crime or to prevent future criminality, the condition here is reasonably related to Matthews's rehabilitation and protection of the public. The travel limitation may limit his ability to purchase or transport marijuana for sale, which would be another probation violation. It further limits his risk of flight from the jurisdiction where mandatory supervision is ordered. Probation officers cannot withhold approval for irrational or capricious reasons. Therefore, the requirement is not overly broad or unduly burdensome. ( People v . Olguin (2008) 45 Cal.4th 375, 383.)

Finally, Matthews challenges condition 1.m., requiring him to submit his "person, vehicle, residence, property, personal effects, computers, and recordable media electronic devices to search at any time ... when required by [probation officer] or law enforcement officer" as unconstitutionally overbroad. Matthews requests modification of the condition to only allow searches of his electronic devices when a probation officer or law enforcement officer have a reasonable suspicion an electronic device has "material prohibited by law" or "evidence of illegal conduct."

The overbreadth challenge and Matthews's request to modify the condition is not a facial constitutional challenge because it necessarily asks us to consider the facts of the

Page 19

case. He contends the condition impinges on his constitutional rights and asks us to remand the matter for further proceedings to narrowly tailor the condition. Therefore, traditional forfeiture principles apply to the as-applied claim. ( I . V ., supra , 11 Cal.App.5th at p. 261; Patton , supra , 41 Cal.App.5th at pp. 946-947.)

Matthews did not object to the search condition or ask the court to more narrowly tailor the condition. "The purpose of [the forfeiture] rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected." ( In re S . B . (2004) 32 Cal.4th 1287, 1293.)

A defendant who commits a crime involving electronic devices may constitutionally be subjected to some electronics search conditions. ( Patton , supra , 41 Cal.App.5th at p. 946.)

The majority in Ricardo P ., supra , 7 Cal.5th 1113 concluded the burden imposed by an electronic search condition on a juvenile probationer's privacy was invalid under the third prong of the Lent test because it was substantially disproportionate to the interests of rehabilitation and protecting society when there was no evidence an electronic device was involved in the crime. ( Id . at pp. 1119-1120.)

Here, however, the condition permitting searches of items such as Matthews's vehicle and electronic devices are valid under Lent because it is related to the crimes for which he was convicted and is also reasonably related to future criminality. Several times, under a Fourth Amendment waiver, law enforcement officers located large amounts of marijuana, wrappers, scales, and pay-owe lists in Matthews's vehicle indicating he used his vehicle to commit the crimes of transporting and possessing the

Page 20

marijuana for sale. Additionally, there was evidence multiple cell phones were used in the crimes as they contained messages and photographs indicating sale and delivery of marijuana in violation of the law. The ability of probation officers and law enforcement to conduct searches of electronic devices not only sends a message to Matthews that he should not continue his illegal activity, it also protects society by monitoring his conduct to prevent repeated criminal acts.

Matthews failed several trials of probation and repeatedly violated the same laws. The search condition enables probation to enforce a condition that Matthews possess no marijuana at all, even with a medical card, prescription, or recommendation, which Matthews does not challenge. Having failed multiple opportunities to become law abiding, the court made clear that it was necessary to closely supervise Matthews. Therefore, the scope of the search condition is reasonable under the circumstances. Bearing in mind that perfect fit is impossible, the fact that a narrower condition could serve the same goals does not render the condition overbroad or invalid. ( Patton , supra , 41 Cal.App.5th at p. 947.) We, therefore, decline Matthews's request on appeal to remand the condition for modification.

Page 21

We remand the matter with direction for the trial court to strike mandatory supervision condition 1.g. In all other respects, we affirm the judgment.

McCONNELL, P. J.

WE CONCUR:

HALLER, J.

DATO, J.