Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR179064
Swager, J.
Defendant Gabriel Arturo Bustamante appeals from the order modifying the terms of his probation to include alcohol-related conditions. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On June 6, 2006, an information was filed against defendant alleging one count of felony possession of marijuana for sale (Health & Saf. Code, § 11359) and one count of felony transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)).
On August 14, 2006, defendant pled no contest to the transportation count. The count for possession was dismissed. Imposition of sentence was suspended and defendant was placed on formal probation for two years subject to various terms and conditions of probation. He was ordered to serve 120 days in county jail, and was referred to the alternative sentencing program (ASP) for purposes of serving his jail time. He was ordered to surrender to the sheriff on September 13, 2006. He was ordered to pay $220 in fines and fees, to obey all laws, to seek permission before leaving the state, to submit to searches, and to refrain from possessing firearms. He was also ordered to seek employment or vocational training.
On September 20, 2006, defendant requested a new surrender date for jail, stating that the ASP program would not accept him until an outstanding traffic matter was resolved. On October 3, 2006, the court stayed his surrender date to November 2, 2006.
On November 22, 2006, defendant requested an additional extension of his reporting date to allow him to participate in the ASP program. On December 5, 2006, the court stayed his surrender date to January 4, 2007.
On January 5, 2007, defendant again requested a new report date for his jail time. He stated that he was still paying off a traffic citation from another county and therefore was not yet eligible to be accepted into the ASP program. On January 30, 2007, the court stayed his surrender date to April 2, 2007. The court indicated that this would be defendant’s last extension.
On April 3, 2007, the probation department filed a report alleging that defendant had violated his probation by failing to obey all laws. The report stated that he had been arrested in Sonoma County on November 5, 2006, for driving under the influence (DUI). As detailed by the report, defendant was one of several individuals observed climbing out of the passenger side door of a van that was lying on its driver’s side. Though none of the other individuals would identify him as the driver, the keys to the van were found in defendant’s front pocket. A preliminary alcohol screening test showed that he had a blood-alcohol content of 0.137. The charges were dismissed on February 27, 2007, due to insufficient evidence. The report also stated that he had violated the terms of his probation by failing to serve his jail time and pay his fines, and by failing to appear for several scheduled appointments with his probation officer.
On May 22, 2007, the court held a formal probation revocation hearing. The prosecution specified that the hearing would be directed at defendant’s failure to do jail time and failure to report to his probation officer. Following the hearing the court revoked and reinstated his probation, finding that he had violated the condition that he obey all laws by failing to serve his jail time. He was ordered to serve his 120 days of jail time forthwith. The conditions of his probation were reinstated, with new conditions that he totally abstain from the use of alcohol and that he submit to alcohol testing at any time. This appeal followed.
DISCUSSION
Defendant claims that the trial court erred in modifying the conditions of his probation to include the alcohol-related conditions. We disagree.
At the hearing on May 22, 2007, defendant’s counsel objected to the imposition of the conditions on the ground that the Sonoma County DUI arrest “was not part of any facts the court heard in the violation.” The court responded: “There is a suspicion that the probation officer reports in the report that he was around a lot allegedly under the influence, or having been drinking. You say that the charge was dismissed as a result of them [sic] unable to prove that he was driving, but he’s under the influence near a vehicle, . . . he had the keys to the vehicle, as reported. There is a need for, I think, those alcohol terms, and I’m going to leave them in there.” Defendant’s counsel replied “that would be our objection; he never had any of those facts presented here.”
“[T]rial courts have broad discretion to impose conditions of probation to foster rehabilitation and reformation of the defendant, to protect the public and the victim, and to ensure that justice is done. ([Pen. Code, ]§ 1203.1, subd. (j); . . .)” Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319.) “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 . . . .’ [Citation.]” (People v. Lent (1975) 15 Cal.3d 481, 486.) Stated another way, the question is whether “the conditions imposed, objectively viewed, bear a reasonable relationship to the crime or the rehabilitation of the offender.” (People v. Torres (1997) 52 Cal.App.4th 771, 776, italics added.) We apply the deferential abuse of discretion standard in reviewing conditions of probation imposed by the trial court. (People v. Balestra (1999) 76 Cal.App.4th 57, 65.)
Defendant claims that the alcohol-related conditions are improper because his probation was revoked for failure to do his jail time only, and his consumption of alcohol had no relationship to this violation. The trial court, however, was free to consider the impact of his alcohol use on his prospects for successful rehabilitation. It is established that in deciding what conditions to attach to a defendant’s probation the “trial court may properly go beyond the exact confines of the current offense to consider all the relevant circumstances regarding the probationer.” (People v. Patillo (1992) 4 Cal.App.4th 1576, 1580, disapproved on other grounds in People v. Welch (1993) 5 Cal.4th 228, 237.) Additionally, “A provision which ‘forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.’ [Citation.]” (People v. Lindsay (1992) 10 Cal.App.4th 1642, 1644, italics added.)
In general, “Whether an alcohol-use condition of probation is an abuse of the trial court’s discretion is determined by the particular facts of each case.” (People v. Lindsay, supra, 10 Cal.App.4th 1642, 1644.) Based on the circumstances surrounding defendant’s arrest in Sonoma County, as set forth in the probation report, the trial court could reasonably conclude that he was disposed to drink excessively and that the use of alcohol might play a role in any future criminal behavior and hinder his rehabilitation.
Alternatively, defendant complains that the prosecutor presented no evidence to prove the substance of the Sonoma County DUI case at the hearing. Thus, he claims, he was given no opportunity to explain or deny the circumstances surrounding his arrest. He claims the proceeding violated his right to due process under Morrissey v. Brewer (1972) 408 U.S. 471, 480 (Morrissey).) We disagree.
Morrissey concerned the application of due process in the context of violations of parole. The court held that due process requires: “(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.” (Morrissey, supra, 408 U.S. 471, 489.) The following year, in Gagnon v. Scarpelli (1973) 411 U.S. 778, the high court, extending the Morrissey protections to probationers, held a probationer is entitled to preliminary and final revocation hearings under the conditions specified in Morrissey. (411 U.S. 778, 782.)
In the present case, defendant was provided with notice and an opportunity to be heard. The probation report set forth the facts leading to his arrest in Sonoma County. He was aware of the report. The officer who prepared the report testified at the probation revocation hearing. Defendant was thus on notice that the incident could be brought before the trial court, yet he did not attempt to deny or explain the circumstances of the DUI case. Instead, his objection at the hearing was based on the assertion the incident was not one of the factors that the prosecutor relied upon to revoke probation.
Moreover, the trial court’s reliance on the probation report was proper. As the Attorney General notes, “The probation report is generally a proper source of information upon which judicial discretion may be exercised when a defendant is arraigned for sentencing.” (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 725, disapproved on another point in People v. Green (1980) 27 Cal.3d 1, 33–35; see also People v. Rivera (1989) 212 Cal.App.3d 1153, 1160; People v. Baumann (1985) 176 Cal.App.3d 67, 81–82.)
Appellant’s reliance on Lankford v. Idaho (1991) 500 U.S. 110 (Lankford) is misplaced. In Lankford, a judge imposed a death penalty even though the prosecution had assured the defense that it was not seeking the death penalty. Under Idaho law in 1991, the jury decided guilt in a capital case and the judge, after a sentencing hearing, determined the penalty. (Id. at p. 115, fn. 8.) The Supreme Court reversed the penalty, finding that the record could not be relied upon to hold the error harmless because the defense, trusting the prosecution’s assurance, did not present evidence on aggravating or mitigating factors relating to the penalty decision. (Id. at pp. 122–128.)
The case before us differs from Lankford. In the first place, Lankford did not involve probation revocation proceedings. Secondly, defendant here knew that the Sonoma County incident was at issue in the probation revocation hearing because it was detailed in the probation report. The hearing afforded him ample opportunity to present evidence to contest the facts as set forth in the report. Moreover, defendant does not suggest that he has any additional evidence or argument that he failed to present. Thus the case here is distinguishable from Lankford.
We conclude the trial court did not abuse its discretion.
DISPOSITION
The order is affirmed.
We concur, Marchiano, P. J.,Margulies, J.