Opinion
E052600
11-23-2011
THE PEOPLE, Plaintiff and Respondent, v. STEVEN LEE ECKHARDT, Defendant and Appellant.
Elisabeth A. Bowman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI900627)
OPINION
APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed.
Elisabeth A. Bowman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant and appellant Steven Lee Eckhardt pled guilty to evading a peace officer (Veh. Code, § 2800.2, subd. (a)) and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)). In return, the remaining counts were dismissed, and defendant was placed on formal probation for a period of 36 months on various terms and conditions. Defendant's sole contention on appeal is that the probation condition prohibiting him from consuming alcohol is invalid. We reject this contention and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the probation officer's report and the police report.
On March 21, 2009, San Bernardino County Sheriff's Department received a call alleging that a man with a gun was driving toward the I-15 freeway in a maroon Ford Taurus. The deputy who was dispatched to the location observed the vehicle matching the description and discovered that the vehicle had been reported stolen. The deputy attempted to initiate a traffic stop; however, the driver, later identified as defendant, made no attempt to stop and continued driving at speeds of 70 to 90 miles per hour for about 74 miles.
The pursuit ended in the city of El Monte, where defendant drove through several red lights, drove into other traffic lanes, blocked other drivers, and failed to yield. With the assistance of several El Monte police offices, the deputy detained defendant, who was observed to be under the influence of a controlled substance. A search of defendant's person revealed a loaded semiautomatic gun in his pocket. A search of the vehicle revealed three more loaded semiautomatic weapons and two boxes of ammunition. A later blood test of defendant shows opiates in defendant's blood.
On March 24, 2009, the San Bernardino County District Attorney filed a felony complaint against defendant, charging defendant with evading a peace officer (Veh. Code, § 2800.2, subd. (a); count 1); unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 2); grand theft of a firearm (Pen. Code, § 487, subd. (d)(2); count 3); being under the influence of a controlled substance while possessing a firearm (Health & Saf. Code, § 11550, subd. (e); count 4); and receiving stolen property (Pen. Code, § 496, subd. (a); count 5).
On April 6, 2009, the trial court suspended the proceedings and appointed a medical commissioner to determine whether defendant was competent to stand trial. On June 9, 2009, the trial court appointed a second medical commissioner to conduct another psychiatric evaluation of defendant to determine his mental competency pursuant to Penal Code section 1368.
On August 14, 2009, the trial court found defendant mentally incompetent to stand trial and committed defendant to Patton State Hospital for a maximum of three years, with credit of 148 days, until his mental competence was restored.
On August 28, 2009, the trial court granted a motion authorizing the treatment facility to administer antipsychotic medication to defendant for his treatment and restoration of competency.
On November 13, 2009, the trial court again found defendant mentally incompetent to stand trial and committed defendant to Patton State Hospital for a maximum of three years with credit of 239 days. The trial court also authorized the treatment facility to administer antipsychotic medication for defendant's treatment and restoration of competency.
On October 25, 2010, the trial court found defendant mentally competent to stand trial and reinstated criminal proceedings.
On November 2, 2010, pursuant to a negotiated plea agreement, defendant pled guilty to count 1 (evading a peace officer) and count 2 (unlawful driving or taking of a vehicle). In return, the remaining counts were dismissed, and defendant was placed on formal probation, with various terms and conditions, for a period of 36 months with credit of 900 days for time served. One of defendant's probation conditions prohibited defendant from consuming alcohol.
II
DISCUSSION
Defendant contends the no-alcohol probation term must be stricken because it is not related to the offense, it is conduct that is not in itself criminal, and it is not reasonably related to future criminality. We disagree.
A. Additional Factual and Procedural Background
Pursuant to a court order, defendant was interviewed by two licensed psychologists, Dr. Marjorie Graham-Howard and Dr. Mitchell Harris. In her report, Dr. Howard noted that defendant revealed he had an "extensive history of drug and alcohol use, dating back to adolescence." Defendant specifically told Dr. Howard that he was an "'alcoholic,' who drinks heavily on a daily basis when he is not incarcerated." Defendant also disclosed "problems with marijuana, methamphetamine, and 'pain killers.'" Defendant's mother had reported that defendant began using marijuana at age 10 and methamphetamine at age 15; defendant was 42 years old at the time of the interview. Dr. Howard also noted that defendant had a history of mental health symptoms.
Dr. Harris noted that defendant reported he "began using marijuana and alcohol in his late teens" and also stated that he had used "cocaine, speed, mushrooms, and LSD." Defendant reported that he was once admitted to a psychiatric hospital for three days, that he had seen a psychiatrist on and off for two years, and that he had previously been arrested for possession of cocaine. Defendant was diagnosed with schizophrenia.
Dr. Phillip Hudson, a clinical therapist who had interviewed defendant for a placement evaluation, also reported that defendant had revealed "a long history of alcohol use" and use of controlled substances such as heroin, methamphetamine, LSD, and marijuana. Defendant had also informed Dr. Hudson that he had been hospitalized in a psychiatric unit twice in the past.
The probation report noted that defendant had previously been convicted of possession of a controlled substance in August 2007 and that he had successfully completed probation for that offense. The probation report also indicated that on the day of defendant's arrest a blood screen detected opiates and that defendant had admitted to taking Vicodin and Norco. The probation officer recommended supervised probation for a period of three years on various terms and conditions, including the no-alcohol use condition.
At the December 3, 2010, sentencing hearing, defense counsel objected to the no-alcohol use term of probation. Counsel argued that "[a]lcohol did not play a part in the offense" and that "[a]lcohol is not illegal for an adult to possess or consume." Counsel therefore requested to strike the no-alcohol use term in its entirety. Counsel further argued that medical reasons for not consuming alcohol would be covered by term No. 20, which stated, "[c]ooperate with the psychiatrist and medical doctor and take all medication as prescribed and in the prescribed manner."
The People argued that the no-alcohol use term was appropriate "considering the medications that are involved," and for the best interest of defendant.
The trial court modified the challenged term "to simply say, don't consume any alcoholic beverage," in order to "facilitate the defendant succeeding on probation given that, at least by the report, the defendant is on prescribed medication."
The recommended no-alcohol term stated: "Neither possess nor consume any alcoholic beverages, nor enter places where such beverages are the chief item of sale, and submit to tests at the direction of the probation officer."
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On April 29, 2011, the trial court held a postdisposition hearing concerning the settled statement for appeal. The court noted, "If I understand, [defense counsel], you indicated that there was a conference in chambers and that both of you were present . . . and we talked about some of the terms, went through some of them. [¶] You've indicated a discussion about there needing to be medical testimony supporting a finding that alcohol would interfere with the medication . . . ." After clarifying the presentence chambers conference, the court again found the no-alcohol term to be appropriate because defendant was on medication, and such a term would facilitate defendant's success on probation.
B. Analysis
Penal Code section 1203.1 specifically states that in granting probation the court is to determine what conditions are "fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . ." (Pen. Code, § 1203.1, subd. (j).) The trial court has broad discretion to select appropriate probation conditions in an individual case, those aimed at promoting rehabilitation and the protection of public safety, as expressed in Penal Code section 1203.1. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Defendant nonetheless argues that the alcohol prohibition constitutes an abuse of that discretion.
"The trial court's discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, we have interpreted Penal Code section 1203.1 to require that probation conditions which regulate conduct 'not itself criminal' be 'reasonably related to the crime of which the defendant was convicted or to future criminality.'" (People v. Carbajal, supra, 10 Cal.4th at p. 1121.) Accordingly, a probation condition "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, fn. omitted.) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (People v. Olguin (2008) 45 Cal.4th 375, 379-380.)
In this case, the record contains no indication that alcohol was involved in defendant's offenses, and alcohol possession and use are legal for someone defendant's age. The only issue, therefore, is whether the no-alcohol condition forbids conduct that is not reasonably related to future criminality. The analysis is highly fact specific. (People v. Lindsay (1992) 10 Cal.App.4th 1642, 1644 (Lindsay).)
Some courts have found alcohol-related conditions reasonable where the record reveals a factual basis to find that the defendant abused alcohol. For example, in Lindsay the defendant had an "'alcohol problem'" as well as an "'addictive personality,'" and his crime involved selling drugs to support his addiction. (Lindsay, supra, 10 Cal.App.4th at pp. 1644-1645.) The addiction to drugs, combined with the defendant's alcohol problem, created a nexus between the potentially impaired judgment resulting from alcohol use and an increase in the potential for a drug abuse relapse in the future. (Id. at p. 1645.) The alcohol-use prohibition was therefore reasonably related to future criminality. Similarly, in People v. Balestra (1999) 76 Cal.App.4th 57 (Balestra), the defendant smelled of alcohol at the time she committed elder abuse on her mother. The trial court commented at the plea hearing that the defendant "'need[ed] treatment for what everybody appears to agree is an alcohol problem . . . .'" (Id. at p. 62.)
Other courts have imposed a no-alcohol condition even when the defendant had no history of alcohol abuse. In People v. Smith (1983) 145 Cal.App.3d 1032, the court concluded that a no-alcohol condition was reasonably related to the defendant's conviction for PCP possession and to his future criminality, because he had an "extensive involvement with drugs," was "emotionally unstable," and had "a poorly integrated personality . . . ." (Id. at pp. 1034-1035.) "Given the nexus between drug use and alcohol consumption," the court held, "we find no abuse of discretion in the imposition of the condition of probation relating to alcohol usage." (Id. at p. 1035.)
By contrast, in People v. Kiddoo (1990) 225 Cal.App.3d 922 (Fourth Dist., Div. Two), disapproved on another point in People v. Welch (1993) 5 Cal.4th 228, 237, this court invalidated a condition prohibiting the defendant from possessing or consuming alcohol following his guilty plea to possession of methamphetamine. The defendant had been selling drugs to support a gambling habit; he had been using drugs and alcohol since he was 14, but he was only "a social drinker" who used methamphetamine "sporadically." (Id. at p. 927.) This court found no facts to support the conclusion that the prohibited conduct was reasonably related to future criminality, and it struck the condition.
In People v. Beal (1997) 60 Cal.App.4th 84 (Beal), on the other hand, the our colleagues in Division One disagreed with the implicit assumption in Kiddoo that alcohol use and drug abuse are not reasonably related. (Beal, at p. 87.) In Beal the defendant pleaded guilty to possession for sale and simple possession of methamphetamine. Like the defendant in Kiddoo, she described herself as a "social drinker," but she did not view alcohol use to be a problem for her. (Ibid.) She did, however, admit that she suffered from chemical dependency, having used methamphetamine and other drugs for several years. The Beal court expressed the view that "empirical evidence shows that there is a nexus between drug use and alcohol consumption. It is well documented that the use of alcohol lessens self-control and thus may create a situation where the user has reduced ability to stay away from drugs. [Citation.] Presumably for this very reason, the vast majority of drug treatment programs, including the one Beal participates in as a condition of her probation, require abstinence from alcohol use." (Ibid.) The court concluded that the alcohol condition was reasonable because "alcohol use may lead to future criminality where the defendant has a history of substance abuse and is convicted of a drug-related offense." (Ibid.)
Essentially, later decisions have rejected Kiddoo's conclusion that a no-alcohol condition is unreasonable under circumstances where a defendant is described as a social drinker or sporadic user of drugs. (See, e.g., Beal, supra, 60 Cal.App.4th at p. 87.) The Beal court rejected the argument that defendant makes here and disagreed "with the fundamental assumptions in Kiddoo that alcohol and drug abuse are not reasonably related and that alcohol use is unrelated to future criminality where the defendant has a history of substance abuse." (Beal, at p. 87.) Additionally, the court in Balestra, supra, 76 Cal.App.4th 57 stated that Kiddoo is "inconsistent with a proper deference to a trial court's broad discretion in imposing terms of probation, particularly where those terms are intended to aid the probation officer in ensuring the probationer is complying with the fundamental probation condition, to obey all laws." (Balestra, at p. 68.)
In this case, unlike in Kiddoo, there is overwhelming evidence that defendant had a history of alcohol and drug abuse, even though his crime did not involve alcohol consumption. Defendant reported to two psychologists and a clinical therapist that he had a "long history of . . . alcohol abuse" and had described himself as an "'alcoholic,' who drinks heavily on a daily basis when he is not incarcerated." Defendant also told the doctors that he had been abusing controlled substances involving cocaine, methamphetamine, marijuana, LSD, mushrooms, and pain killers since his teens. In fact, defendant was under the influence of drugs at the time of his current arrest and had one prior drug possession offense in 2007. Moreover, defendant was diagnosed with schizophrenia, had a history of mental illness, and was twice declared mentally incompetent to stand trial. Contrary to defendant's contention, the trial court properly found the no-alcohol term proper in facilitating defendant's success on probation and that consuming alcohol would affect defendant's medication. It is reasonable to conclude that the use of alcohol could impact defendant by inhibiting defendant's senses, making defendant susceptible to abusing drugs or alcohol, and preventing him from taking his prescribed medication. (See, e.g., Lindsay, supra, 10 Cal.App.4th at p. 1645 ["[a] person's exercise of judgment may be impaired by the consumption of alcohol, and . . . this could lead to his giving in to the use of drugs"].) It is also a reasonable conclusion that mixing alcohol and psychotropic medication would have a detrimental effect on a person.
Giving "proper deference to a trial court's broad discretion in imposing terms of probation, particularly where those terms are intended to aid the probation officer in ensuring the probationer is complying with the fundamental probation condition, to obey all laws" (Balestra, supra, 76 Cal.App.4th at p. 68), we cannot say that the no-alcohol condition was unreasonable in the circumstances presented. We therefore conclude that "alcohol use may lead to future criminality where the defendant has a history of substance abuse" and alcohol abuse. (Beal, supra, 60 Cal.App.4th at p. 87.)
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
KING
J.
MILLER
J.