Opinion
H050929
02-29-2024
THE PEOPLE, Plaintiff and Respondent, v. PAUL BOULERICE, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Cruz County Super. Ct. No. 22CR03839)
Greenwood, P. J.
Defendant Paul Boulerice appeals from the judgment of conviction entered after a jury convicted him of attempted burglary and misdemeanor vandalism. On appeal, Boulerice challenges the probation conditions that prohibit him from using and possessing alcohol and marijuana. For the reasons set forth below, we affirm.
I. Background
A. Procedural Background
On December 19, 2022, the Santa Cruz County District Attorney filed an information charging Boulerice with second degree burglary (Pen. Code, § 459 ; count 1) and felony vandalism (§ 594, subd. (a); count 2). On February 28, 2023, a jury convicted Boulerice on the lesser included offense of attempted burglary (§§ 459, 664) on count 1 and the lesser included offense of misdemeanor vandalism (§ 594, subd. (a)) on count 2.
Undesignated statutory references are to the Penal Code.
On March 23, 2023, the court suspended imposition of sentence and placed Boulerice on two years of formal probation, subject to certain terms and conditions. The court ordered him to serve 237 days in county jail, with credit for 237 days. Boulerice timely appealed.
B. Factual Background
Christopher Baker worked as a self-employed mobile mechanic. Baker, who was a former Marine, owned a motor home in which he stored his military uniforms and medals, along with his tools. Baker came to the Santa Cruz area to work on a car engine for a client. While working on that job, Baker lived at the client's house, and received permission from a business on South Rodeo Gulch Road in Soquel to store his motor home on its property. Baker would visit the motor home every day or two after his workday ended.
On September 10, 2022, Baker went to his motor home and after leaving, he locked the upper and lower deadbolt to the main door and locked the driver's side door. Baker left at about 9:00 p.m., and he took his keys to his motor home.
Lex Kagen is a diesel mechanic who works on South Rodeo Gulch Road in a commercial area that has some abandoned vehicles, as well as a homeless population. Kagen was familiar with Boulerice as someone who lived in the area.
On September 11, 2022 at about 11 a.m., Kagen saw Boulerice "fumbling around" with Baker's motor home. When Kagen left work at 9 p.m. or 10 p.m. that same day, he noticed that Boulerice was still working on Baker's motor home. Boulerice told Kagen that he was "trying to get this thing going" so that he could move it because a woman named Renee had given Boulerice a spot on her property where he could put the motor home. At the time of this conversation, Kagen believed that the motor home did not belong to Boulerice, and Boulerice told Kagen that he was "just going to acquire it." Kagen observed "at least a dozen" large black trash bags outside the motor home that appeared to be full of items that had been inside the motor home.
Baker planned to meet his friend Hannah Thomas at the motor home on the night of September 11, 2022. Thomas agreed to go to the motor home ahead of Baker that evening to clean it up before his arrival. When Thomas arrived there in the early evening, she saw Boulerice "messing with" the tires of Baker's motor home. Thomas pulled her car around the back of the motor vehicle and shined her headlights on it. She tried to call Baker but was not able to contact him, so she called the police. While Thomas was on the phone with 911, she saw Boulerice climb on top of the motor home and then enter it through the side door. Boulerice approached her and said something to her about the headlights, but she did not respond because she did not want to talk to him.
Deputy Angelo Claussen of the Santa Cruz Sheriff's Office was dispatched to South Rodeo Gulch Road at 8:29 p.m. When Deputy Claussen arrived, he saw Kagen standing next to the motor home. Kagen told Deputy Claussen that Boulerice was inside the motor home. Deputy Claussen called out to Boulerice, who then came out of the motor home wearing Baker's Marine Corps camouflage hat.
Deputy Claussen asked Boulerice why he was inside the motor home and who it belonged to. Boulerice provided several different answers. First, he stated that Deputy Claussen should check with the woman (Thomas) who parked behind the motor home. Boulerice said the bill of sale for the motor home was inside the motor home in his backpack with the keys and his wallet, and that he had bought the motor home for $5000. He told Deputy Claussen to ask the registered owner of the motor home how many payments he had made, but he also told the deputy that the owner was deceased. Boulerice asked Deputy Claussen to go back into the motor home to retrieve his backpack. Deputy Claussen and other deputies then looked for the backpack in the motor home but were unable to find it. Deputy Claussen ultimately stated that Boulerice was difficult to understand, and that he said some things that did not make sense.
The police were able to contact Baker, who then drove over to the motor home with friends. Baker observed many changes to the exterior of the motor home since he had last been there. The ball hitch and tow bar from the rear of the motor home were missing. There was a hole in the door and the handle to the door was damaged, and the deadbolt was also bent out of place. Baker's Marine Corps flag was hanging at the window of the motor home when he had previously left it stored in the bedroom. There was a note taped to that same window which stated that ownership of the motor home had been transferred to Boulerice, and to call him if there were any questions.
The inside of the motor home was "completely destroyed." A television had been pulled down from its mounting and the wiring from a DVD player and other devices had been ripped out. The keys to Baker's 1956 DeSoto, which he had left hung up on a ring near the driver's door, were shoved into the ignition. Inside the bathroom, the toilet, bathtub, and sink were damaged. A refrigerator was knocked over and a mirror was broken. Items of clothing that had previously been stored in a closet were thrown on the floor and the bed, and Baker's dress blue uniform was "destroyed."
A week later, Baker and Thomas returned to the motor home to clean up the mess that had been left there. Under a pile of clothing, they found a backpack and wallet. Inside the wallet was Boulerice's identification, along with the title document to Baker's 2009 Mini Cooper. There was no paperwork related to the ownership of the motor home in the backpack. Inside the backpack, Baker found what he believed to be crack and drug paraphernalia. Baker turned in the backpack and wallet to the police.
The trial court granted a motion in limine to exclude mention of drugs at Boulerice's trial. The only mention of drugs before the jury was Baker's testimony mentioning that he found suspected crack and paraphernalia in the backpack. The probation report states that the backpack contained several glass pipes and two small baggies containing suspected heroin/fentanyl.
The Santa Cruz County Probation Department prepared a presentence report in this case. The probation report documented Boulerice's criminal record of 25 criminal incidents, with convictions for 28 misdemeanors and six felonies. Included in his criminal record are: a 1993 conviction for public intoxication (§ 647, subd. (f)) and illegal discharge of sewage or other waste (Health &Saf. Code, § 5411); a 2005 conviction for possession of paraphernalia (Health &Saf. Code, § 11364); convictions in 2006 and 2016 for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)); and a 2018 conviction for possession of a controlled substance (Health &Saf. Code, § 11350 and Bus. & Prof. Code, § 4060) and receipt of a stolen vehicle (§ 496, subd. (d)).
In addition, the probation report stated that Boulerice had "a lengthy history of reoffending while on supervision." When he was supervised within the department's behavioral health caseload in 2021, he did not participate in services to address his mental health or substance abuse issues.
Evidence in the probation report indicates that Boulerice has a substance abuse problem. He reported that he was an alcoholic who now drinks alcohol "once in a while, just to keep [his] sanity." He also stated that he uses methamphetamine occasionally, and that he uses marijuana as well. In addition, he told the probation officer that he has tried heroin but does not like it. He indicated that he has been diagnosed with post-traumatic stress disorder and schizophrenia, but he is not willing to take medication to address his mental illness.
The report also indicated that in 2013 in a previous case, Boulerice was sent to Atascadero State Hospital for a competency evaluation. The evaluating psychologist stated in a May 2013 report that defendant "exhibited symptoms which met the criteria for a diagnosis of Delusional Disorder, Antisocial Personality Disorder and Alcohol/Cannabis Dependence." This report in turn referenced an evaluation from April 2013 which stated that Boulerice had prior hospitalizations for detoxification and a history of drug-induced psychosis.
At sentencing, Boulerice objected to the "drug terms, the alcohol terms, and the marijuana terms" recommended by the probation department on the basis that there was no "nexus" there. The court placed Boulerice on two years of formal probation, and ordered as conditions of probation that he was "not to use or possess alcohol" and "not to possess or use marijuana."
II. Analysis
Boulerice argues that the trial court erred in imposing conditions of probation prohibiting use of alcohol and marijuana because they are not reasonably related to his future criminality. The Attorney General contends that we should affirm because the conditions prohibiting alcohol and marijuana are not unreasonable. We conclude that the trial court did not err by imposing the challenged probation conditions.
The Court of Appeal reviews conditions of probation for abuse of discretion. (People v. Moran (2016) 1 Cal.5th 398, 403 (Moran).) "[A] reviewing court will disturb the trial court's decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable." (Ibid.) "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, quoting People v. Dominguez (1967) 256 Cal.App.2d 623, 627.) Both parties here agree that the probation conditions at issue in this appeal involve only the third Lent factor.
In evaluating Lent's third factor, the court is not required to find a nexus between the probation condition and the defendant's underlying offense so long as the condition is "reasonably directed at curbing his future criminality." (Moran, supra, 1 Cal.5th at p.405; In re Ricardo P. (2019) 7 Cal.5th 1113, 1122.) However, a condition will be found invalid under the third prong of the Lent test if it imposes a burden that is "substantially disproportionate to the condition's goal." (Ricardo P., at p. 1120.)
Here, the court reasonably found that alcohol was tied to Boulerice's criminality and that a prohibition against use of alcohol would deter criminal conduct. Boulerice admitted in his presentence interview that he is an alcoholic and that he still drinks, in part to maintain some "sanity." At the time of the offense, Boulerice gave incoherent and inconsistent responses to law enforcement as to why he was in the motor home. Drug paraphernalia and baggies of suspected heroin or fentanyl were found in the backpack that he left in the motor home, suggesting that he was struggling with illegal drug usage at the time of the offense.
A person's exercise of judgment may be impaired by consumption of alcohol. (People v. Lindsay (1992) 10 Cal.App.4th 1642, 1645; People v. Smith (1983) 145 Cal.App.3d 1032, 1034 (Smith) [use of alcohol leads to "a lessening of internal self-control"].) It is recognized that "there is a nexus between drug use and alcohol consumption." (People v. Beal (1997) 60 Cal.App.4th 84, 87.) Drinking alcohol may create circumstances "where the user has reduced ability to stay away from drugs." (Ibid.) In Smith, the court cited the defendant's emotional instability and need for mental health intervention as a basis for affirming the no-alcohol probation condition. (Smith, supra, at pp. 1034-1035.) Here, given Boulerice's addiction to drugs and alcohol, along with his mental health condition, it was reasonable for the court to determine that use of alcohol could impair his judgment and inhibitions, and that imposition of a no-alcohol condition could limit his future criminality.
For similar reasons, the condition prohibiting possession or use of marijuana was reasonably directed at curbing Boulerice's future criminality. In his presentence interview, Boulerice stated that he used marijuana. He was diagnosed with cannabis dependence in 2013. He has also experienced drug-induced psychosis and has been hospitalized for detoxification. During the period of his supervision shortly before this offense, Boulerice did not participate in the services that were offered by the behavioral health division of the probation office to address his substance abuse issues. He also stated that he is not willing to take his psychiatric medications. The court could reasonably find that Boulerice's untreated substance abuse, including his addiction to cannabis, would likely lead to future illegal drug use, especially given his reluctance to seek treatment for his addiction and mental health issues.
Boulerice contends that we should follow the result in People v. Cruz Cruz (2020) 54 Cal.App.5th 707, 713 (Cruz), where the Court of Appeal held that a marijuana-related probation condition was not reasonably related to preventing the defendant's future criminality. In that case, the defendant, who was convicted of stealing a car, told the probation officer that he smoked marijuana about twice a month and drank alcohol on social occasions. (Id. at p. 710.) The court on appeal determined that the third prong of the Lent test was not met because there was no indication that the defendant was "predisposed or more likely to commit crimes when under the influence of marijuana." (Id. at p. 712.)
Boulerice's circumstances are far different from those in Cruz. The court in Cruz noted that the defendant had never been accused or convicted of a drug-related offense, did not currently suffer from a substance abuse problem, and had never undergone prior interventions for drug-related abuse. (Cruz, supra, 54 Cal.App.5th at p. 712.) Boulerice has suffered multiple convictions related to controlled substances, been hospitalized for drug detoxification, and was diagnosed with cannabis dependence ten years prior to the current offense. His criminal conduct has been ongoing since that diagnosis. We therefore determine that the court's imposition of the probation condition prohibiting marijuana use and possession was reasonably related to the goal of limiting his future criminality.
III. Disposition
The March 23, 2023 order imposing the no-alcohol and no-marijuana conditions of probation is affirmed.
WE CONCUR: Grover, J. Lie, J.