Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CM026741, CM026530.
DAVIS, J.
Defendant Charles Anthony Guiffre pleaded no contest to one count of forgery (Pen. Code, § 470, subd. (d)) in case No. CM026741. He also pleaded no contest in case No. CM026530 to one count of forgery, and admitted a special allegation that the offense was committed while he was released on his own recognizance on a prior offense. (§ 12022.1.) Following denial of defendant’s subsequent motions to withdraw the plea and reduce the convictions to misdemeanors (§ 17, subd. (b)), the court suspended imposition of sentence and placed defendant on five years’ formal probation pursuant to a number of terms and conditions, including several relating to defendant’s use or possession of alcohol and requiring his participation in alcohol-related testing and programs.
Hereafter, undesignated section references are to the Penal Code.
On appeal, defendant contends the alcohol-related probation conditions are invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent). We shall affirm the judgment.
The facts are taken from the respective probation reports as stipulated by defendant in his written entry of plea form.
On March 12, 2007, defendant entered a bank and attempted to cash a check on which the original payee, “A.C.S.,” was crossed out and the name “Charles Guiffre” written in its place. After contacting the account holder and learning the true facts, a bank employee informed defendant he was having trouble verifying the check. Defendant left the bank, and was later arrested.
On March 14, 2007, defendant was charged by felony complaint in case No. CM026741 with one count of forgery. (§ 470, subd. (d).) He pleaded not guilty and was released on his own recognizance (O.R.).
On March 20, 2007, defendant entered a liquor store and attempted to cash a check written on the account of William Latham, Jr., payable to Robert Williams in the amount of $400. Defendant signed the check but could not produce any identification and refused to place his thumb print on the check. He did, however, offer to give the liquor store employee half of the $400 if the employee cashed the check. The store owner, believing the transaction to be fraudulent, took the check and told defendant he would cash it when it cleared the bank. Defendant returned to the liquor store the next day and was arrested.
On March 23, 2007, defendant was charged by felony complaint in case No. CM026530 with one count of forgery. (§ 470, subd. (d).) The complaint also alleged that defendant had committed the offense while released on O.R. in case No. CM026741. (§ 12022.1.) Defendant was remanded to custody and entered a plea of not guilty.
On April 11, 2007, defendant changed his plea to the forgery charge in both cases to no contest, and admitted the section 12022.1 enhancement in case No. CM026530. Prior to sentencing, the court denied defendant’s motion to withdraw his plea (§ 1018) and his motion to reduce one or both of the felony forgery counts to misdemeanors (§ 17, subd. (b)). The court suspended imposition of sentence and placed defendant on probation for five years pursuant to specified conditions, including the condition that defendant (1) refrain from use or possession of alcoholic beverages and refrain from entering any business or location where alcohol is the primary item for sale or use (special condition No. 5); (2) participate in and pay for any medical/drug therapy treatment program (special condition No. 6); (3) submit to and pay for expense of drug, narcotic or alcohol use detection (special condition No. 7); and (4) complete a residential substance abuse treatment program and submit to warrantless search and drug/alcohol testing while in the program (special condition No. 20). Defense counsel objected to the prohibition against use or possession of alcohol on the ground that it was not “related to the offenses in any way.”
Defendant filed timely notices of appeal in both cases.
DISCUSSION
As his sole contention on appeal, defendant urges that the special conditions of probation that relate to alcohol are invalid under Lent, supra, 15 Cal.3d 481. We disagree.
The trial court abuses its discretion if it imposes a condition of probation that “‘(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 . . . .’” (Lent, supra, 15 Cal.3d at p. 486, quoting People v. Dominguez (1967) 256 Cal.App.2d 623, 627.) Whether the trial court abused its discretion is determined by the particular facts of each case. (People v. Lindsay (1992) 10 Cal.App.4th 1642, 1644.)
Any challenge to a condition as outside the power of the court is forfeited on appeal unless first brought to the trial court at the time of sentencing. (People v. Welch (1993) 5 Cal.4th 228, 237.)
To be valid, conditions relating to alcohol use and presence at locations where alcohol is the primary item for sale (generally, alcohol-related conditions) must satisfy at least one of the three criteria articulated in Lent. Because alcohol was not involved in or associated with defendant’s crimes and is a legal substance, we can dispense with the first two criteria.
As for the third criteria, where the facts show that a particular defendant’s use of alcohol reasonably could be expected to create a heightened risk of criminal activity, then alcohol-related conditions of probation may properly be imposed.
Here, the trial court considered the probation report in making its sentencing decisions. The report revealed defendant’s admitted consumption of two pints of hard liquor weekly since 2003, and one to two cans of beer each day since 1964, as well as his admitted daily use of marijuana since 1968. The report also chronicles defendant’s criminal record, which extends as far back as 1973 and includes numerous felony and misdemeanor convictions, including convictions for theft, robbery, possession of marijuana and driving under the influence, and reflects numerous probation violations throughout. Based on defendant’s admitted long-term regular use of alcohol, two prior driving under the influence convictions and prior revocation of his driver’s license for excessive blood alcohol, it is fair to say that defendant struggles with alcohol. Compounding that problem is defendant’s admitted illegal use of marijuana on a daily basis which, it is safe to assume, causes him to consort with criminals regularly to obtain sufficient supplies of the drug to sustain his habit, given that any prescription he might have had to use marijuana for medicinal purposes is no longer valid. We note that, in addition to defendant’s past criminal record, which reflects a propensity to commit crimes associated with alcohol and illegal drugs, his current unemployment and extremely limited supplemental security income does not appear sufficient to support his lifestyle, making the possibility of future criminal conduct all the more likely.
Defendant indicated he was, at one time, issued a medical marijuana prescription, but admitted that his prescription had “expired.”
Against the backdrop of prior criminal conduct related to drug and alcohol use, we conclude that defendant’s regular consumption of significant amounts of alcohol, coupled with his daily use of marijuana and lack of sufficient income to support his lifestyle, poses a heightened risk of future criminality. The alcohol-related conditions must therefore stand.
DISPOSITION
The judgment is affirmed.
We concur SIMS, Acting P.J., RAYE, J.