Opinion
A152787
08-15-2018
THE PEOPLE, Plaintiff and Respondent, v. RAQUEL ORTEGA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR704099)
Defendant Raquel Ortega pleaded no contest to one count of grand theft by embezzlement, in violation of Penal Code section 487, subdivision (a). The court placed her on four years' formal probation, subject to various terms and conditions. On appeal, defendant challenges the condition prohibiting her from possessing or using controlled substances to the extent it prohibits her possession or use of marijuana. We affirm.
Defendant's briefing is not a model of clarity. While at some points, she appears to be challenging the no-possession or use condition in its entirety, most of her briefing is focused on the fact this condition embraces marijuana use. We therefore consider defendant to be challenging the condition only to the extent it prohibits her possession and use of marijuana to the extent it is now lawful under California law.
BACKGROUND
We summarize only the facts relevant to the issue on appeal.
Defendant was fired from her job as office manager of a landscaping company for misuse of the company credit card. According to a fraud report filed with the Sherriff's Department, defendant completed hundreds of fraudulent transactions using company credit cards and falsified overtime, costing her employer more than $65,000 over a two-year period. The district attorney filed a felony complaint, charging defendant with two counts of grand theft, one by embezzlement and one by larceny. Defendant pleaded no contest to the embezzlement count, and the People agreed to dismiss the balance of the complaint in exchange for formal probation, subject to certain conditions.
The presentence report documented the circumstances leading to defendant's crimes, including the " 'overwhelming' " pressure she faced as the sole provider for her family. Defendant described herself as an " 'alcoholic' " and as developing a gambling addiction during the period of her crimes. She stated she had been a " 'social drinker' " before her "downward spiral" in 2013-2015, and had last used alcohol in early 2017. Defendant denied experimenting with or abusing "any controlled or illicit substances." She has never received treatment for any of her addictions, and she does not believe she currently has a problem with alcohol or gambling.
At the sentencing hearing, the court imposed the terms and conditions of defendant's probation. These included a prohibition on alcohol use; a requirement to stay out of places where alcohol is the primary item of sale; a prohibition on possession or use of controlled substances or associated paraphernalia without a valid prescription (condition 22); and a prohibition on possession of weapons of any kind. Defendant objected to the controlled substance prohibition on the ground there was "no nexus to the crime." The trial court declined to strike or modify the condition.
DISCUSSION
Defendant claims that, in imposing the controlled substances condition, the trial court abused its discretion under Lent. She contends the possession or use of controlled substances had nothing to do with her crime, the personal possession and use of marijuana is not, itself, unlawful under state law, and, such possession is unrelated to her future criminality.
People v. Lent (1975) 15 Cal.3d 481 (Lent), superseded by statute on another ground as stated in People v. Brandão (2012) 210 Cal.App.4th 568, 574, footnote 2.
We "review conditions of probation for abuse of discretion" (People v. Olguin (2008) 45 Cal.4th 375, 379) and will "disturb the trial court's decision to impose a particular condition of probation only if, under all the circumstances," the condition is arbitrary, capricious, and unreasonable. (People v. Moran (2016) 1 Cal.5th 398, 403.) The trial court's discretion in imposing probation conditions, however, "is not boundless." (People v. Burton (1981) 117 Cal.App.3d 382, 390.)
"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 itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. . . .' " (Lent, supra, 15 Cal.3d at p. 486.) All three elements of the Lent test must be satisfied in order to invalidate the challenged probation term. (Olguin, supra, 45 Cal.4th at p. 379.) Thus, even if the challenged condition "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." (Id. at p. 380.) We therefore turn first to the third Lent prong.
As the Attorney General points out, California courts have routinely upheld probation conditions prohibiting the consumption of alcoholic beverages, which is not, in and of itself, unlawful, where a probationer has a record of abusing a controlled substance. In People v. Smith (1983) 145 Cal.App.3d 1032, 1034-1035 (Smith), for example, the Court of Appeal upheld a condition prohibiting use or possession of alcohol for a probationer convicted of possessing phencyclidine (PCP) because of the "nexus between drug use and alcohol consumption." The appellate court did not discuss whether the defendant had used alcohol before or during the commission of the crime, but rather, observed both alcohol and drugs lead to "a lessening of internalized self-control" and the probationer had an "extensive involvement with drugs." (Id. at pp. 1034-1035.) Thus, prohibiting the consumption of alcohol, said the court, could help prevent future drug use and other criminal behavior, and therefore was a valid condition of defendant's probation. (Id. at p. 1035; see People v. Malago (2017) 8 Cal.App.5th 1301, 1308 [since alcohol lessens self-control, the defendant's "ability to avoid possessing, selling, and using drugs would be increased if he avoids alcohol"]; see also People v. Balestra (1999) 76 Cal.App.4th 57, 62, 68-69 [because alcohol and drugs are related by their nature, a defendant with a drinking problem could be subject to periodic chemical testing].)
Defendant contends these cases are all distinguishable because they involved drug convictions, whereas she was convicted of embezzlement. However, this overlooks the fact that, at the time of her crime, defendant was an alcoholic and also had a gambling problem, and these behaviors were, in part, the impetus for her criminal conduct. Accordingly, even though she was not convicted of a drug offense, her crime was related to addictive substances and vices.
Defendant further asserts "[t]here is simply no indication the use of marijuana leads to criminal conduct or other drug use, or that it lessens self-control." She cites no authority for this assertion, but observes that in Smith, the Court of Appeal commented "[a]lcoholic euphoria is accompanied by activity and aggressive behavior, while barbiturate and marijuana euphoria is accompanied by lethargy." (Smith, supra, 145 Cal.App.3d at p. 1034.) However, this disregards what the appellate court said immediately prior to making this comment, namely that "[t]he use of alcohol produces many effects similar to the effects produced by marijuana, barbiturate and other sedative hypnotics. Sensorial impairment is present, there is a lessening of internalized self-control, and euphoria, accompanied by a reduction of anxiety, is experienced." (Ibid.) Thus, Smith not only does not suggest marijuana's effect on self-control is different from that of alcohol, it states the opposite and explains that only the nature of the euphoria experienced by the user differs.
In passing and without discussion, defendant also cites to People v. Acosta (2018) 20 Cal.App.5th 225, 227, review granted April 25, 2018, S247656, in which the defendant pleaded guilty to several vandalism counts and admitted gang enhancements. On appeal, he challenged several probation conditions, including alcohol and drug conditions, neither of which the appellate court spelled out in its opinion, but which included a testing requirement. (Id. at p. 227.) The court upheld the alcohol condition since the defendant appeared to have been intoxicated in a public park along with fellow gang members shortly prior to his arrest on the instant case. (Id. at pp. 235-236.) The trial court had therefore "properly exercised its discretion when it provided the probation department with the discretion to monitor [the defendant's] alcohol consumption to help keep him compliant with the terms of his probation." (Id. at p. 236.) However, the Court of Appeal reversed as to the drug condition, explaining that the only evidence of any drug use by the defendant was when he " 'tried' " marijuana at the age of 13—"10 years before his arrest." (Ibid.) "[T]here is no evidence in the record [the defendant] uses or used, or sold, drugs including marijuana during this 10-year period." (Ibid.) As we have discussed, the record here is different—defendant admitted to both alcohol abuse and excessive gambling, and these addictive behaviors were among the pressures that resulted in two years of stealing from her employer.
We therefore share the view of the Attorney General that a prohibition on the possession and use of marijuana otherwise lawful under state law is analogous to a prohibition on the use of alcohol and can be properly imposed where, as here, the record reflects that the defendant has a history of alcohol abuse (and, also here, gambling addiction) that is related to the conviction offense.
DISPOSITION
The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.