Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. CC802013, CC899728
Mihara, Judge
Defendant Donald R. Murphy pleaded no contest to attempted pimping of an adult prostitute (Pen. Code, §§ 266h, subd. (a), 664), possession of a forged driver’s license (Pen. Code, § 470b), and using personal information without authorization (Pen. Code, § 530.5, subd. (a)). The trial court suspended imposition of sentence and placed him on probation with various conditions. On appeal, defendant challenges the imposition of probation conditions requiring him to submit to chemical testing, complete a substance abuse program, and refrain from possessing or consuming alcohol or illegal drugs. We modify the probation conditions with respect to alcohol and affirm the order as modified.
I. Factual and Procedural Background
Because defendant waived his right to a preliminary examination, the facts are taken from the felony complaints and from the probation report.
In April 2007, defendant pimped an adult prostitute and lived and derived support and maintenance from her earnings as a prostitute.
In February 2008, defendant possessed a forged driver’s license, bought or received a stolen MasterCard, and used the personal identifying information of the MasterCard’s owner, without his consent, to obtain goods, services, or property. A baggie of marijuana was found in defendant’s sweatshirt pocket when he was arrested, and he admitted the marijuana was his.
At the sentencing hearing, the trial court cited defendant’s marijuana possession and, over defense counsel’s objections, imposed the following substance abuse and alcohol conditions recommended by the probation officer: “The defendant shall submit to chemical tests as directed by the Probation Officer. [¶]... The defendant shall not possess or consume alcohol or illegal drugs, or knowingly be anywhere illegal drugs are used or sold or alcohol is the major item of sale. [¶]... The defendant shall enter and complete a substance abuse treatment program as directed by the Probation Officer.”
Defendant filed a timely notice of appeal.
II. Discussion
A. Drug Conditions
Defendant contends the trial court violated Health and Safety Code section 11553 in imposing the drug conditions. Imposition of the drug conditions was “in excess of the punishment authorized by law,” he claims, and therefore violated his right to due process. We disagree.
All further statutory references are to the Health and Safety Code unless otherwise noted.
Section 11553 provides in pertinent part that “[t]he fact that a person is or has been, or is suspected of being, a user of marijuana is not alone sufficient grounds upon which to invoke Section 11551....” Section 11551, in turn, gives the court discretion, “[w]henever... the court has reason to believe [a probationer] is or has been a user of controlled substances,” to require, as a condition of probation, “that the probationer submit to periodic tests by a city or county health officer, or by a physician and surgeon appointed by the city or county health officer with the approval of the Attorney General, to determine, by whatever means is available, whether the probationer is addicted to a controlled substance.” (§ 11551, subd. (a).)
Defendant’s reliance on section 11553 is misplaced, because by its plain terms, that section applies only where a court orders “periodic tests by a city or county health officer, or by a physician and surgeon” to determine whether “the probationer is addicted to a controlled substance.” That is not what the trial court ordered here. Here, defendant was placed on probation with the condition that he “submit to chemical tests as directed by the Probation Officer.” A probation condition ordering testing by law enforcement officers to determine if a probationer is violating the law and his probation does not run afoul of section 11553. (People v. Shimek (1988) 205 Cal.App.3d 340, 343 (Shimek.) As the court noted in Shimek, section 11553 has “nothing to do with the power of the court to test [a probationer] to determine if he is once again using in violation of the law....” (Shimek, at p. 343.)
It is well settled that a trial court has broad discretion to impose such reasonable probation conditions “as it may determine are fitting and proper to the end that justice may be done... and generally and specifically for the reformation and rehabilitation of the probationer....” (Pen. Code, § 1203.1, subd. (j).) “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. Dominguez (1967) 256 Cal.App.2d 623, 627.)” (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent), abrogated by Prop. 8 on another ground as recognized in People v. Wheeler (1992) 4 Cal.4th 284, 290-292.) “The [Lent] test is clearly in the conjunctive, that is, the three factors must all be found to be present in order to invalidate a condition of probation.” (People v. Balestra (1999)76 Cal.App.4th 57, 65, fn. 3 (Balestra); see Lent, at p. 486, fn. 1.)
The first Lent factor is satisfied here. Defendant was not convicted of a drug offense, and there is nothing in the record to suggest marijuana played any part in the crimes he committed. The second and third Lent factors are not satisfied. Marijuana was found on defendant’s person when he was arrested, and he admitted that it was his. Marijuana is a controlled substance. It is illegal to possess or use controlled substances. (See§ 11000 et seq.) That makes the drug conditions reasonably related to defendant’s future criminality, because possession or use of a controlled substance by a probationer would violate the universal probation condition to obey all laws. (Shimek, supra, 205 Cal.App.3d at p. 342.) We conclude that the trial court could reasonably have imposed the drug testing condition to assist the probation officer in determining if defendant is violating the law.
B. Alcohol Condition
Defendant contends the trial court abused its discretion in imposing a probation condition requiring him to refrain from possessing or consuming alcohol or knowingly being “anywhere... alcohol is the major item of sale.” This was error, he argues, because alcohol played no part in the crimes he was convicted of, and “the court’s ruling was based solely on [defendant’s] possession of a baggie of marijuana at the time of his arrest.” The Attorney General counters that the no-alcohol condition was properly imposed. It is reasonably related to defendant’s future criminality, he asserts, because there is a nexus between alcohol abuse and drug abuse. We agree that the alcohol condition must be stricken.
Defendant also asserts that the no-alcohol condition must be stricken “in light of Health and Safety Code section 11553.” He does not explain how section 11553, which by its express terms applies to marijuana users, requires striking the alcohol condition. Because we invalidate the no-alcohol condition under Lent, we need not reach defendant’s section 11553 argument.
To withstand defendant’s challenge, the no-alcohol condition must satisfy at least one of the three Lent factors. As defendant correctly points out, there is no evidence in the record to suggest alcohol played any part in his crimes. Alcohol possession and consumption are legal for a person of defendant’s age. Because the first two factors are not satisfied, the dispositive issue is whether the no-alcohol condition “ ‘forbids conduct which is not reasonably related to future criminality....’ ” (Lent, supra, 15 Cal.3d at p. 486.) The analysis is highly fact-specific. (People v. Lindsay (1992) 10 Cal.App.4th 1642, 1644 (Lindsay).) “There must be some rational factual basis for projecting the possibility that defendant may commit a particular type of crime in the future, in order for such projection to serve as a basis for a particular condition of probation.” (In re Martinez (1978) 86 Cal.App.3d 577, 583, italics added.)
A number of cases have upheld alcohol-related conditions of probation, finding them reasonably related to the defendant’s future criminality. In People v. Smith (1983) 145 Cal.App.3d 1032 (Smith), 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.” (Smith, 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.” (Smith, at p. 1035.)
The court reached the same conclusion in Lindsay. The defendant in that case pleaded guilty to selling cocaine and admitted he committed the crime to support his addiction. (Lindsay, supra, 10 Cal.App.4that pp. 1644-1645.) The court concluded that the no-alcohol condition was reasonably related to the defendant’s conviction and to his future criminality, given the nexus between drug abuse and alcohol consumption and the fact that he had been using alcohol since he was 10 and “ ‘battling an alcohol problem for the past five years.’ ” (Lindsay, at pp. 1644-1645.)
In People v. Beal (1997) 60 Cal.App.4th 84 (Beal), the defendant was convicted of possession of methamphetamine and possession of methamphetamine for sale. Although she characterized herself as “a social drinker” and told the probation officer she did not consider alcohol use a problem, she also admitted suffering from “ ‘chemical dependency.’ ” (Beal, at p. 86, fn. 1.) Citing “common sense” and “empirical evidence” supporting a nexus between drug use and alcohol consumption, the Court of Appeal upheld a no-alcohol condition, concluding “that alcohol use may lead to future criminality where the defendant has a history of substance abuse and is convicted of a drug-related offense.” (Beal, at pp. 86-87.)
In Balestra, the defendant was convicted of abusing her elderly mother after consuming “a couple of glasses of wine.” (Balestra, supra,76 Cal.App.4th at p. 62.) Commenting that the defendant “ ‘need[ed] treatment for what everybody appears to agree is an alcohol problem,’ ” the trial court imposed drug and alcohol related probation conditions. (Balestra, at pp. 61-62.) The Court of Appeal upheld the conditions, following Beal.
In People v. Kiddoo (1990) 225 Cal.App.3d 922 (Kiddoo), disapproved on other grounds in People v. Welch (1993) 5 Cal.4th 228, 234-235, by contrast, the court invalidated a no-alcohol condition of probation. The defendant in that case was convicted of possessing methamphetamine and said he sold drugs to support his gambling habit. (Kiddoo, at p. 927.) He had started using drugs and alcohol at 14 but had “ ‘no prior problem’ ” and at 33, was “a social drinker” who used methamphetamine “sporadically.” (Ibid.) Concluding that the no-alcohol condition was not related to the defendant’s crime and finding “no factual indication in the record that the proscribed behavior, in defendant’s case, is reasonably related to future criminal behavior,” the court invalidated it. (Kiddoo, at p. 928.)
The record in this case does not support the imposition of an alcohol-related probation condition. Here, unlike in Smith, Lindsay, Beal, and Balestra, there is no evidence in the record that defendant abuses or even uses alcohol. On the meager record presented here, there is no factual indication whatsoever that the proscribed behavior is reasonably related to this defendant’s future criminal behavior. The Attorney General’s argument that there is a nexus between drug use and alcohol consumption—which would permit trial courts to impose alcohol conditions on any defendant who possessed drugs at the time of his arrest, even if the drugs had nothing to do with his crimes—is insufficient. There must be a factual basis for the trial court’s exercise of discretion. Here, there is none. Because none of the Lent factors is satisfied here, the alcohol-related probation condition is invalid.
III. Disposition
The probation condition that defendant “shall not possess or consume alcohol or illegal drugs, or knowingly be anywhere illegal drugs are used or sold or alcohol is the major item of sale” is modified by striking the references to alcohol, so that the condition states that defendant “shall not possess or consume illegal drugs, or knowingly be anywhere illegal drugs are used or sold.” As modified, the order of probation is affirmed.
WE CONCUR: Elia, Acting P. J., McAdams, J.