Opinion
F072852
07-13-2017
THE PEOPLE, Plaintiff and Respondent, v. VERONICA RODRIGUEZ, Defendant and Appellant.
Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F15904477)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Timothy A. Kams, Judge. Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Smith, J.
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Appellant Veronica Rodriguez pled no contest to possession of a stolen vehicle (Pen Code, § 496d subd. (a); count 2) and was placed on probation. On appeal, Rodriguez challenges two of the conditions of her probation and the court's order revoking her driver's license. We find merit to this last contention, modify the judgment accordingly, and affirm in all other respects.
All statutory reference are to the Penal Code, unless otherwise indicated.
FACTS
On July 16, 2015, Alicia V. reported that her 1994 Honda Accord was stolen on May 5, 2015, and that she believed Rodriguez, who stayed with her the night before the theft, took the car.
On July 19, 2015, officers stopped an Accord driven by Victor Guerrero with Rodriguez as a passenger. Rodriguez told the officers she purchased the car three months earlier and that, after she lost her source of income, she told the seller she would not be able to make any more payments. When an officer asked her the name of the prior owner, Rodriguez refused to speak further. After arresting Guerrero and Rodriguez, officers searched Rodriguez's purse and found some methamphetamine.
On July 21, 2015, the Fresno County District Attorney filed a complaint charging Rodriguez with vehicle theft with a prior (Veh. Code, § 10851, subd. (a) & § 666.5; count 1), receiving a stolen vehicle (count 2), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 3).
On August 11, 2015, Rodriguez pled no contest to vehicle theft in exchange for no initial state prison time, a reduction of the charge to a misdemeanor if Rodriguez provided proof that she owned the car, and the dismissal of the remaining counts.
On August 25, 2015, Rodriguez failed to appear in court and the court issued a warrant for her arrest.
On October 7, 2015, Rodriguez appeared in court in custody and the court granted her motion to withdraw her plea.
On October 21, 2015, Rodriguez pled no contest to receiving a stolen vehicle, in exchange for the dismissal of the remaining counts and two unrelated misdemeanors. Additionally, the court reserved the right to comment on the dismissed counts and misdemeanors. After Rodriguez waived time for sentencing, the court placed her on probation for two years with certain terms and conditions, including that she serve one year in custody. As part of the terms and conditions of Rodriguez's probation, the court ordered her, without objection, "not to possess alcoholic beverages" and "not to use or possess narcotics, other controlled substances or related paraphernalia." The court also revoked Rodriguez's driver's license.
DISCUSSION
The Probation Condition Prohibiting Rodriguez from Possessing Alcohol
Rodriguez contends the probation condition prohibiting her from possessing alcohol is invalid because it is not related to the offense for which she was convicted, or to future criminality, and it forbids conduct that is not criminal. She further contends that the court could not base this condition on the possession of methamphetamine charge because that charge was dismissed without a Harvey waiver. Thus, according to Rodriguez, the probation condition prohibiting her from possessing alcohol is invalid.
Rodriguez's probation report indicates that she told the probation officer that although she first used alcohol at age 16, she consumed only one to two beers every six months.
People v. Harvey (1979) 25 Cal.3d 754 (Harvey). In Harvey, the Supreme Court held that ordinarily an implied term of a plea agreement is that a defendant will suffer "no adverse sentencing consequences by reason of facts underlying, and solely pertaining to, [dismissed counts]." (Id. at p. 758.) The two exceptions to this rule are when the defendant enters into a contrary agreement, i.e., a so-called Harvey waiver, or when there is a transactional relationship between the charge or charges to which the defendant pled and the facts of the dismissed charge or charges. (Ibid., accord People v. Martin (2010) 51 Cal.4th 75, 82 (Martin).) In Martin, the Supreme Court extended Harvey to include probation conditions in holding that the trial court cannot impose probation conditions that are based solely on the dismissed charge or charges unless one of the aforementioned conditions is met. (Ibid.)
Rodriguez forfeited these contentions by her failure to object to this condition on either basis in the trial court. (People v. Welch (1993) 5 Cal.4th 228, 237 (Welch).) However, even if Rodriguez had not forfeited these contentions, we would reject her claim that the alcohol condition is invalid.
"[S]ection 1203.1, subdivision (a) provides that the court may suspend the imposition or execution of a sentence and grant probation 'upon those terms and conditions as it shall determine.' In granting probation, the trial court has broad discretion to impose conditions 'to foster rehabilitation and to protect public safety.' " (People v. Beal (1997) 60 Cal.App.4th 84, 86 (Beal).)
"We review conditions of probation for abuse of discretion." (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) "As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or ' " 'exceeds the bounds of reason, all of the circumstances being considered.' " ' " (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) "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, 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." (Olguin, at pp. 379-380.) "Insofar as a probation condition serves the statutory purpose of 'reformation and rehabilitation of the probationer,' [citation] it necessarily follows that such a condition is 'reasonably related to future criminality' ...." (People v. Balestra (1999) 76 Cal.App.4th 57, 65.)
Whether imposition of a no-alcohol condition of probation lies within the trial court's discretion depends on the facts of the particular case. (People v. Lindsay (1992) 10 Cal.App.4th 1642, 1644.) In Beal, the court upheld a probation condition requiring abstention from alcohol for a defendant who was convicted of possession of methamphetamine for sale and possession of methamphetamine, stating:
"[E]mpirical 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. [Citations.] Presumably for this very reason, the vast majority of drug treatment programs, ... require abstinence from alcohol use. [Citation.] [¶] Based on the relationship between alcohol and drug use, we conclude that substance abuse is reasonably related to the underlying crime and 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. Whether the trial court determines to impose such a condition is thus within its sound discretion." (Beal, supra, 60 Cal.App.4th at p. 87.)
In People v. Smith (1983) 145 Cal.App.3d 1032, 1033, the court approved probation conditions prohibiting a defendant convicted of possession of PCP from consuming alcohol and requiring him to stay out of establishments where it was the chief item for sale. In doing so, the court noted, "Drinking at any time, even for the social, controlled drinker who can stop at will, can lead to a temporary relaxation of judgment, discretion, and control." (Id. at p. 1034.) It also noted that the varying effects of alcohol on individuals depend on many factors in concluding, "The bottom line ... is the undisputed fact that the physical effects of alcohol are not conducive to controlled behavior." (Id. at p. 1035.)
Although Rodriguez was only 39 years old, she had a long history of drug abuse that included possessing a small amount of methamphetamine when she was arrested on July 19, 2015. Rodriguez's probation report indicates she told the probation officer she began using methamphetamine when she was 20 years old and that she used 3.5 grams a day, although she claimed that her last use was in 2007. From 2002 through 2004, Rodriguez was convicted on two felony and one misdemeanor counts of possession of a controlled substance and one count on being under the influence of a controlled substance. In 2006, she failed to complete at least one 11-month inpatient drug rehabilitation program. Further, the court could reasonably find from her failure to complete the drug program and her possession of methamphetamine when arrested in this matter that her assertion that she last used methamphetamine in 2007 was not true.
Rodriguez also had numerous theft-related convictions. In addition to her receiving a stolen vehicle conviction in the instant case, Rodriguez was convicted of petty theft in 2002, of forgery and second degree burglary in 2003, and of vehicle theft in 2008. In light of Rodriguez's drug addiction and drug-related convictions, the court could reasonably conclude that her theft offenses were related to her substance abuse. (People v. Constancio (1974) 42 Cal.App.3d 533, 540 ["It requires no recitation of authority to observe that drug offenders frequently commit burglary and theft as a means of funding their illegal activities with drugs."].) Thus, even without considering the dismissed drug charge, Rodriguez's record of drug abuse and drug- and theft-related convictions amply support the probation condition requiring her to abstain from alcohol because this condition relates to her future criminality.
Rodriguez cites People v. Kiddoo (1990) 225 Cal.App.3d 922 (Kiddoo), disapproved on another ground in Welch, supra, 5 Cal.4th at page 237, and People v. Burton (1981) 117 Cal.App.3d 382 (Burton) in support of her contention that the alcohol prohibition condition is invalid. In Kiddoo, the defendant, who was 33 years old at the time, pled guilty to possession of methamphetamine. He told the probation officer that he had become involved in the sale of drugs to support a gambling habit; he had used marijuana, methamphetamine, amphetamine, cocaine, and alcohol since he was 14 years old; he had " 'no prior problem;' " and he was a social drinker and used methamphetamine sporadically. His prior record consisted of unlawfully taking or driving a vehicle at age 15 and possession of marijuana at age 22. (Kiddoo, supra, 225 Cal.App.3d at p. 927.) In striking the no-alcohol condition of the defendant's probation, the appellate court observed that nothing in the record suggested alcohol was related to the crime for which the defendant was convicted; moreover, since it was not a crime to possess or consume alcohol, or to frequent places where alcoholic beverages were the chief item of sale, the probation condition had to be reasonably related to future criminal activity in order to be valid. (Id. at pp. 927-928.) The court found no factual indication in the record that, in the defendant's case, the proscribed behavior was reasonably related to future criminal behavior. (Id. at p. 928.)
In Burton, the defendant was convicted of severely beating a coworker while at work and placed on probation with one probation condition prohibiting him from consuming alcohol or visiting places where it was the principal product sold. There was no evidence alcohol played any role in the beating or that the defendant had a history of alcohol abuse. (Burton, supra, 117 Cal.App.3d at pp. 382, 389-390.) As the court noted, "it is especially significant that there is no evidence in the record that [the defendant] had ever been convicted of an alcohol-related offense and/or that he had manifested a propensity to become assaultive while drinking." (Id. at p. 390.)
Burton is easily distinguishable because it does not involve a probation condition prohibiting alcohol consumption for a defendant who has a history of drug abuse that appears to be correlated to the defendant's ongoing drug- and theft-related criminal conduct. Further, we join Beal in disagreeing "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, supra, 60 Cal.App.4th at p. 87.) Accordingly, we conclude that the court did not abuse its discretion when it imposed the alcohol prohibition condition.
The Probation Condition Concerning Possession of Drugs is Not Overbroad
Rodriguez contends the probation condition prohibiting her from possessing drugs is invalid because: (1) it is related to the dismissed possession of methamphetamine charge and she did not execute a Harvey waiver; and (2) it is unconstitutionally overbroad because it fails to make an exception for narcotics and controlled substances prescribed by a physician.
Rodriguez forfeited these issues by her failure to interpose appropriate objections in the trial court. (Welch, supra, 5 Cal.App.4th at p. 237.) However, if they were properly before us, we would reject them. As discussed above, the court could reasonably conclude the drug condition related to preventing her future criminality and was supported by Rodriguez's history of drug addiction and drug- and theft-related offenses. Thus, there is no merit to her contention that the absence of a Harvey waiver precluded the court from imposing this condition.
Further, we need not reach Rodriguez's second contention. It is clear from the context that in imposing the drug condition the court meant to direct that Rodriguez, as a condition of probation, not illegally possess and/or use, among other things, any "narcotics." We will construe the drug condition to refer to any controlled substance for which she does not have a valid prescription. Construed in this manner, the drug condition is not unconstitutionally overbroad.
As to each of the probation conditions she challenges, Rodriguez contends she was denied the effective assistance of counsel if she forfeited her right to challenge these conditions by defense counsel's failure to interpose appropriate objections. "To demonstrate ineffective assistance of counsel, a defendant must show that counsel's action was, objectively considered, both deficient under prevailing professional norms and prejudicial." (People v. Hinton (2006) 37 Cal.4th 839, 876.) Since Rodriguez has not shown deficient representation by counsel or prejudice with respect to either condition, there is no merit to her ineffective assistance of counsel claims. --------
The Court Erred in Revoking Rodriguez's Driver's License
At her sentencing hearing, the court revoked Rodriguez's driver's license pursuant to Vehicle Code section 13357, which provides: "Upon the recommendation of the court the department shall suspend or revoke the privilege to operate a motor vehicle of any person who has been found guilty of a violation of Section 10851." (Veh. Code, § 13357.)
Rodriguez contends the court erred in ordering her license suspended pursuant to Vehicle Code section 13357 because she was not convicted of vehicle theft (Veh. Code, § 10851). Respondent concedes and we agree.
Although Rodriguez initially pled to a count of vehicle theft, the court subsequently allowed her to withdraw her plea to that offense and to plead to receiving a stolen vehicle. Since Rodriguez did not plead to vehicle theft (Veh. Code, § 10851), the court erred when it suspended her license pursuant to Vehicle Code section 13357.
DISPOSITION
The judgment is modified to strike the order revoking Rodriguez's license. The trial court is directed to correct its paperwork accordingly. As modified, the judgment is affirmed.