Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS080137A
ELIA, J.Pursuant to a negotiated disposition, appellant pleaded no contest to one count of inflicting injury on a cohabitant. (Pen. Code, § 273.5, subd. (a).) The trial court sentenced appellant to one year in the county jail and placed him on probation with various terms and conditions. Appellant challenges the alcohol-conditions of probation and certain conditions that were placed in the minutes although stricken by the trial court at the time of sentencing. We modify the probation conditions and affirm.
Background
On Sunday, June 29, 2008, around 5:30 p.m., Greenfield police officers, responding to a call, found Jane Doe bleeding profusely from her nose. She was sitting in a chair and appellant was standing over her holding their two-year-old son. A witness told police that, while Jane was holding the baby, appellant had punched her in the nose with a closed fist. Jane told the police that she and appellant lived together. She said that she had prepared a meal for another man who lived in their residence and that appellant had accused her of infidelity, punched her in the nose, and kicked her in the stomach.
Appellant was charged with inflicting injury on a cohabitant, child endangerment, and possession of a false government card. (Pen. Code, §§ 273.5, subd. (a), 273a, subd. (a), 529.5, subd. (c).) When he entered his no contest plea to inflicting injury on a cohabitant, the prosecutor moved to dismiss the remaining charges.
Appellant told the probation officer that there had been an agreement with this man that Jane would cook for him but that he would pay for the groceries. Appellant said that he and Jane argued over her refusal to ask the man for the grocery money. He said that when he turned to leave his hand hit her nose. The probation officer reported that he had been unable to locate anything that indicated that appellant had any juvenile, criminal, or traffic record. Appellant said that he and Jane had come to the United States from Mexico in 2005 and had been in the area since then.
Appellant was 40 years old and appeared to be in good health. He worked two jobs, one for the past two years with a packing company and also in the area grape fields. According to the probation report, appellant "reported that he drinks alcohol on a regular basis, however, not excessively and is not an alcoholic. He denied the use or experimentation with any controlled substances."
The probation officer concluded that appellant's "assaultive behavior was not an isolated incident." He said, "Although there was no reported alcohol or drug abuse reported, in this case, it will be anticipated that drug and alcohol terms and conditions be included in the probation, as alcohol and drugs only serve to perpetuate violent tendencies, and with the knowledge of the defendant's offense, it would be irresponsible to allow him to use these substances, during this time of anticipated rehabilitation."
At the sentencing hearing, defense counsel asked that the drug and alcohol conditions of probation "be stricken and not imposed as they would be unreasonable unless there had been some connection." Counsel noted, "there is no nexus that's even conceded."
The prosecutor declined an invitation from the court to comment on this issue.
The trial court placed appellant on probation for four years and ordered him to serve one year in the county jail. The court said, "I am going to make a no alcohol aspect of [probation]. The probation department indicates at page seven that you do drink alcohol on a regular basis, and I believe that alcohol and anger is nothing but a Molotov cocktail ready to be set off and it lessens the inhibitions of people; it makes them mean and angry.... You're not to purchase or possess any alcohol. You're to stay out of places where it's the main item of sale, which means you cannot go into bars, cocktail lounges.... You're to submit to alcohol and field sobriety testing." This is reflected in the court minutes as do "[n]ot drink or possess alcohol, stay away from places where it is sold." The minutes reflect other conditions of probation, some of which the court modified on the record.
Discussion
Alcohol-Related Conditions
Appellant contends that the " 'no alcohol' condition of probation constituted an abuse of discretion."
"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, superseded on another ground as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-292.) A probation condition will be invalidated only where all three of these criteria are satisfied. (Lent, at p. 486.) The touchstone is whether the condition is reasonable under all of the circumstances. (People v. Welch (1993) 5 Cal.4th 228, 234.)
To be valid, the alcohol-related conditions must satisfy at least one of the three criteria articulated in Lent. The police were on the scene shortly after appellant hit Jane. The police, Jane, and the other witnesses that the police interviewed did not report that alcohol was a factor in the commission of appellant's offense. Alcohol possession and consumption are legal for someone of appellant's age. Thus, because alcohol was not involved in or associated with appellant's present crime and is a legal substance, the alcohol-related conditions do not satisfy the first two criteria.
A number of cases have considered alcohol-related conditions of probation. In People v. Smith (1983) 145 Cal.App.3d 1032, the court found that prohibitions placed on alcohol use and presence in locations where alcohol was the primary item for sale were proper. The court in Smith found that because the defendant's conviction for PCP possession was related to a long history of drug use and because the defendant was "emotionally unstable" and had "a poorly integrated personality," the alcohol prohibitions were "reasonably related to... future criminality." (Id. at pp. 1033-1035.)
In People v. Kiddoo (1990) 225 Cal.App.3d 922 (disapproved on other grounds in People v. Welch, supra, 5 Cal.4th at pp. 236-237), the court concluded that prohibitions on alcohol use and presence in locations where it was the primary item for sale were inappropriate, without referring to Smith, supra, 145 Cal.App.3d 1032. The defendant in Kiddoo was convicted of possessing methamphetamine and said that he sold drugs to support a gambling habit. He had used marijuana, methamphetamine, amphetamine, cocaine, and alcohol since he was 14, drank socially and used methamphetamine sporadically but had had " 'no prior problem[.]' " (Kiddoo, at p. 927.) As a result, the court concluded the alcohol conditions were not reasonably related to future criminal behavior and therefore were invalid. (Id. at p. 928.)
People v. Lindsay (1992) 10 Cal.App.4th 1642, reconciled Kiddoo, supra, 225 Cal.App.3d 922 with the earlier holding of Smith, supra, 145 Cal.App.3d 1032. In Lindsay, the defendant pled guilty to selling cocaine, and the trial court imposed an alcohol abstention condition of probation. (Lindsay, supra, at p. 1643.) The court explained that, "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." (Id. at p. 1644, citing People v. Patillo (1992) 4 Cal.App.4th 1576, 1582.) After discussing both Smith and Kiddoo, the Lindsay court concluded that because the defendant had an " 'alcohol problem' " and an " 'addictive personality' " and the crime was drug-addiction related (defendant admitted he sold cocaine to support his addiction), the alcohol prohibition was appropriate. (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.
In People v. Beal (1997) 60 Cal.App.4th 84, the defendant pleaded guilty to possession of methamphetamine and possession of methamphetamine for sale. The trial court placed her on probation with a condition requiring alcohol abstention. (Id. at p. 86.) The court in Beal 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." (Id. at p. 87, citing Kiddoo, supra, 225 Cal.App.3d at p. 927.) The court went on to cite examples of how drug and alcohol use were related in some circumstances, including prohibitions of alcohol use by participants in drug treatment programs and the fact that alcohol use decreases inhibitions, which can lead to drug use. (Beal, supra, at p. 87.) The court concluded by stating it felt the condition was within the trial court's discretion 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.)
Another case involving alcohol-related probation conditions is People v. Balestra (1999) 76 Cal.App.4th 57. In Balestra, the defendant pled guilty to elder abuse. (Id. at p. 61.) The defendant smelled of alcohol at the time of the abuse, and the trial court stated that everyone appeared to agree she had an alcohol problem. (Id. at pp. 61-62.) The trial court imposed a drug-testing condition at sentencing. (Id. at p. 62.) Without referring to the Lent criteria, the court followed Beal, supra, 60 Cal.App.4th 84, and upheld the condition. (Balestra, supra, at p. 68.) It disapproved of Kiddoo as "inconsistent with a proper deference to a trial court's broad discretion in imposing terms of probation[.]" (Ibid.)
Respondent argues, "The restriction on appellant's use of alcohol relates to appellant's future criminality. Both the probation report and the trial court noted the connection between alcohol and violence. This connection is well known and accepted." This argument would permit the trial court to impose alcohol conditions on any defendant convicted of any assaultive offense if that defendant ever drank alcohol. But such a blanket policy cannot substitute for a factual basis for the exercise of the trial court's discretion. Although alcohol abuse must simply be reasonably related to a defendant's future criminality, there is no support in this record for such a finding. This record is barren of any indication that alcohol is a factor in appellant's current criminality and he has no prior criminal record.
Based on the record in this case, the alcohol-related probation conditions are not reasonably related to the crime of which appellant was convicted or to future criminality. He has no alcohol related past offenses. He was not drinking or under the influence of alcohol before or during the offense. The only evidence of appellant's alcohol use in the record is defendant's statement to the probation officer "that he drinks alcohol on a regular basis, however, not excessively and is not an alcoholic. He denied the use or experimentation with any controlled substances." This is an insufficient nexus with appellant's future criminality. Thus, the alcohol-related probation conditions are invalid under the Lent test. (People v. Lent, supra, 15 Cal.3d 481.) We modify the judgment by deleting those conditions. (People v. Kiddoo, supra, 225 Cal.App.3d at p. 928.)
Other Probation Conditions
Appellant contends, "The order granting probation must be modified to strike terms of probation not imposed by the court." Respondent agrees, and does not object to amending the minute order to reflect the court's order. Condition 23 gave instructions to appellant should he be deported. Defense counsel spoke to the court about the condition and the court said, "I just put, 'In the event you are deported, probation shall revert to nonreporting.' The rest of it I'm striking out." The additional language is crossed out in the probation report. However, the sentencing minute order does not reflect this change.
Disposition
The conditions of probation are modified as follows: The condition that appellant "Not drink or possess alcohol, stay away from places where it is sold" is deleted. The condition, "In the event you are deported, probation revert to non-reporting, do not re-enter the U.S. unless legally, any illegal entry into the U.S. will be deemed a violation of probation, upon re-entry to the U.S., you must report to the Probation Officer within 72 hours" is amended to read, "In the event you are deported, probation shall revert to nonreporting." As modified, the trial court's probation order is affirmed.
WE CONCUR: RUSHING, P. J. PREMO, J.