Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC962811
RUSHING, P.J.
I. Statement of the Case
Defendant Marcus Stevenson pleaded no contest to forgery and attempted grand theft. (Pen. Code, §§ 470, subd. (d), 664, 484, 487, subd. (a).) Under a negotiated settlement, the court granted him release on probation with a 90-day jail sentence. As conditions of probation, the court required chemical testing, prohibited possession and use of illegal drugs and alcohol, banned being present where drugs and alcohol are used or sold, and required participation in a substance abuse treatment program. On appeal from the judgment, defendant claims the court abused its discretion in imposing the conditions summarized above.
All unspecified statutory references are to the Penal Code.
We modify the order of probation to delete alcohol related conditions and the conditions requiring drug testing and a substance abuse program. As modified, we affirm the order.
II. Background
Defendant’s plea was based on evidence that he entered a Bank of America branch and tried to cash a forged check.
The probation report revealed that defendant had a recent conviction for possessing drugs for sale.
III. Applicable Principles
Under Penal Code section 1203.1, subdivision (j), a court granting probation may impose “reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer....” “The primary goal of probation is to ensure ‘[t]he safety of the public... through the enforcement of court-ordered conditions of probation.’ [Citation.]” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) “In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.]” (Id. at pp. 1120-1121.)
“The trial court’s discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute.” (Carbajal, supra, 10 Cal.4th at p. 1121.) Accordingly, our Supreme Court has “interpreted Penal Code section 1203.1 to require that probation conditions which regulate conduct ‘not itself criminal’ be ‘reasonably related to the crime of which the defendant was convicted or to future criminality.’ [Citation.]” (Ibid.)
“Generally, ‘[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....” [Citation.]’ [Citation.]” (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) Consequently, “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. [Citation.]” (Id. at p. 380.)
“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.’ ” [Citations.]’ [Citation.]” (Carbajal, supra, 10 Cal.4th at p. 1121.) The touchstone is whether the condition is reasonable under all of the circumstances. (People v. Welch (1993) 5 Cal.4th 228, 234.) “We review conditions of probation for abuse of discretion. [Citations.]” (Olguin, supra, 45 Cal.4th at p. 379.)
IV. Discussion
Defendant challenges the alcohol-related conditions of probation because “they do not involve conduct which is criminal, and are unrelated to the charged crime or the rehabilitative purposes of probation.” He also challenges the conditions requiring drug testing and a substance abuse treatment program because there is no evidence he used drugs or alcohol or had a substance abuse problem.
The no-alcohol condition is unrelated to the crimes of which defendant was convicted, and alcohol possession and consumption are legal for a person of defendant’s age. Thus, the question is whether the condition is reasonably related to future criminality. The analysis is highly fact-specific. (People v. Lindsay (1992) 10 Cal.App.4th 1642, 1644.)
Courts have found alcohol related conditions reasonable where the record reveals a factual basis to find that the defendant abused alcohol. (E.g., People v. Lindsay, supra, 10 Cal.App.4th at pp. 1644-1645 [defendant had an “ ‘alcohol problem’ ” and an “ ‘addictive personality’ ” and the crime related to selling drugs to support his addiction]; People v. Balestra (1999) 76 Cal.App.4th 57, 61-62 [defendant smelled of alcohol during offense and impliedly admitting having an alcohol problem].)
In People v. Kiddoo (1990) 225 Cal.App.3d 922 (Kiddoo) (disapproved on other grounds in People v. Welch, supra, 5 Cal.4th at pp. 236-237), the defendant was convicted of possessing methamphetamine and admitted that he sold the drugs to support a gambling habit. He also admitted that he had used marijuana, methamphetamine, amphetamine, cocaine, and alcohol since he was 14, he drank socially, and he used methamphetamine sporadically. He opined, however, that he had had “ ‘no prior problem.’ ” (Kiddoo, supra, 22 Cal.App.3d at p. 927.) On these facts, the appellate court invalidated the no-alcohol probation condition because it was not reasonably related to future criminal behavior. (Id. at p. 928.)
In People v. Beal (1997) 60 Cal.App.4th 84 (Beal), on the other hand, the defendant was convicted of possession for sale and simple possession of methamphetamine and admitted she had a “drug habit.” (Id. at pp. 86, 87, fn. 1.) On appeal, she challenged a no-alcohol probation condition. The court disagreed with Kiddoo’s implicit assumption that alcohol use and drug abuse are not reasonably related. (Beal, supra, at p. 87.) The court explained that “empirical 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, including the one Beal participates in as a condition of her probation, require abstinence from alcohol use.” (Ibid.) The court concluded that the alcohol condition was reasonable 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.; see also, People v. Smith (1983) 145 Cal.App.3d 1032, 1033-1035.)
In this case, there was no evidence that defendant was under the influence of alcohol when he attempted to cash the forged check. Nor was there any evidence that defendant had an alcohol problem or even that he used alcohol. Thus, the record does not support a finding that the alcohol related conditions are related to future criminality or defendant’s rehabilitation and reformation. Moreover, since there was no evidence that defendant had a history of alcohol or drug abuse or that he used either before, during, or after his offense, the record does not support a finding that participation in a substance abuse program is reasonably related to defendant’s rehabilitation and reformation.
Citing In re Foss (1974) 10 Cal.3d 910, and People v. Carbonie (1975) 48 Cal.App.3d 679, the Attorney General asserts that defendant’s “history of drug trafficking” justifies drug testing because “drug possession commonly means use by the trafficker”—i.e., trafficking finances personal use. Moreover, because the use of controlled substances is unlawful, drug testing and prohibiting use and being where drugs are used or sold will facilitate defendant’s compliance with the law. The Attorney General further argues that because of the strong connection between alcohol use and drug abuse, the prohibition against the use of alcohol or being where alcohol is used facilitates compliance with the drug related conditions.
In re Foss, supra, 10 Cal.3d 910, and People v. Carbonie, supra, 48 Cal.App.3d 679 do observe that it is common for addicts to sell drugs to support their habit. However, that general observation does not support a reasonable inference in every case that a defendant caught with drugs for sale is an addict or even uses them and, therefore, is a candidate for drug testing and must also be barred from consuming alcohol or being where alcohol is served.
Thus, even if we accept Beal’s view that alcohol and drug use are often closely related and its conclusion that a no-alcohol condition is reasonable where the defendant has a history of drug abuse (Beal, supra, 60 Cal.App.4th at p. 87), there is simply no evidence that defendant was an addict or had a history of substance abuse and thus no reasonable basis to require drug testing and alcohol related conditions.
We note that the court also prohibited the use of illegal drugs. Thus, it could be argued that to ensure compliance with that condition, the court could require drug testing.
Although there was no evidence that defendant used illegal drugs, the prohibition against use poses no burden on defendant because using illegal drugs is generally against the law. (See, e.g., Health & Saf. Code, § 11550.) Moreover, such a condition poses no burden on one who never uses illegal drugs anyway. We further note that one ordinarily has to possess a drug in order to use it. (E.g., People v. Cuevas (1955) 131 Cal.App.2d 393 [guest imbibing drugs is possessor].) Thus, the no-consumption condition is a reasonable way to ensure compliance with the factually warranted condition prohibiting possession of illegal drugs.
However, unlike a ban on the use of drugs, requiring drug testing poses a significant burden and can involve invasive processes. Where, as here, there is no evidence of any drug use, we do not believe the burden of testing is warranted or justified on the ground that it will help ensure compliance with the no-consumption provision, which itself is reasonable only to ensure compliance with a no-possession condition. Simply put, given the record here, we do not find drug testing to be a reasonable means of ensuring compliance with the no-possession condition or itself reasonably related to future criminality, rehabilitation, or reformation.
Defendant’s prior conviction for possession of drugs for sale does, however, support conditions prohibiting possession of illegal drugs and being where illegal drugs are used or sold. However, defendant does not challenge those particular conditions.
In sum, we conclude the alcohol related conditions and the conditions requiring drug testing and participation in a substance abuse treatment program are arbitrary and unreasonable and invalid under People v. Lent, supra, 15 Cal.3d 481.
V. 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 shall read that defendant “shall not knowingly possess or consume illegal drugs, or knowingly be anywhere illegal drugs are used or sold.” The probation conditions requiring that defendant submit to chemical tests as directed by the probation officer and that he participate in a substance abuse treatment program are stricken.
As modified, the order of probation is affirmed.
WE CONCUR: DUFFY, J., GROVER, J.
Judge of the Monterey County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.