Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC828326
Premo, J.
Pursuant to a negotiated plea agreement, defendant Manuel Urrea pleaded guilty to one count of reckless driving while evading the police (Veh. Code, § 2800.2, subd. (a)), a felony, and one count of resisting, delaying, or obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)), a misdemeanor. The trial court suspended imposition of sentence and placed defendant on probation with various conditions. On appeal, defendant challenges the condition requiring him to refrain from possessing or consuming alcohol and from knowingly being where “alcohol is the major item of sale.” We conclude that, under all the circumstances, the condition is not reasonably related to defendant’s crimes or to his future criminality. Accordingly, we shall modify the condition and affirm the modified order of probation.
I. FACTUAL AND PROCEDURAL BACKGROUND
We have granted defendant’s request that we augment the record with the police report of his arrest. We take our recitation of the facts from that report. We have also granted defendant’s motion requesting that we take judicial notice of the record of defendant’s 2004 conviction, which we discuss below.
On or about December 7, 2008, San Jose Police Officer Adam Oberdorfer observed a gray Nissan Altima with no license plates. The officer saw the car fail to stop at a stop sign, make an unsafe lane change, and begin tailgating another car. The driver did not yield to the officer’s emergency lights, his siren, or his oral instruction to pull over. The driver continued to drive erratically and unsafely and finally came to a stop when he hit a parked van. The driver fled on foot with Oberdorfer in pursuit. Oberdorfer apprehended the driver when the driver attempted to jump a backyard fence. The driver was identified as defendant from his valid California driver’s license. Defendant told Oberdorfer that he was afraid when he saw the officer because he thought his driver’s license was suspended. He said he had had a “little” marijuana but dumped it when he ran from the car.
Defendant was charged with reckless driving while evading police and resisting or obstructing a peace officer. He pleaded no contest to both counts in exchange for a promise of eight months in county jail, no more and no less. The plea agreement included defendant’s violation of probation in a 2004 case in which he had been convicted of possessing methamphetamine for sale. (Health & Saf. Code, § 11378.) In that case, defendant had been observed driving a vehicle without its headlights. When police officers tried to contact defendant, he drove off, collided with a fence, and then fled on foot. A large bag of methamphetamine and an envelope containing $1,400 in cash were located near the abandoned car. One condition of probation in the 2004 case was that defendant enroll in a substance abuse program as directed by his probation officer. Defendant violated probation in the 2004 case when he was charged with criminal threats and failing to provide proof of his enrollment in a substance abuse counseling program. Probation was reinstated on the same terms.
In the present case, the probation report recommended conditions of probation, including: “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 report noted: “Substance abuse recommendations are included given the defendant’s conviction for Section 11378 of the Health and Safety Code under the aforementioned docket.” The trial court imposed the condition, over defendant’s objection. This appeal followed.
II. DISCUSSION
Defendant argues that the trial court abused its discretion in imposing the alcohol-related condition because alcohol played no part in the crimes of which he was convicted and is not reasonably related to the potential he will commit crimes in the future. The Attorney General responds that the condition is reasonably related to defendant’s future criminality because there is a nexus between alcohol abuse and drug abuse.
Where, as here, a trial court imposes a probation condition based on its determination of historical or situational facts regarding the defendant or the defendant’s crimes, a reviewing court is confined to determining whether the condition amounted to an abuse of discretion. (See People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) In particular, the trial court may “impose conditions to foster rehabilitation and to protect public safety.” (Id. at p. 1120.) “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, superseded on another ground as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-292.) The touchstone is whether the condition is reasonable under all of the circumstances. (People v. Welch (1993) 5 Cal.4th 228, 234.)
Here, 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 sole issue is whether the condition forbids conduct that is not reasonably related to future criminality. The analysis is highly fact-specific. (People v. Lindsay (1992) 10 Cal.App.4th 1642, 1644.)
Several courts have found a condition prohibiting the use of alcohol to be reasonable where there is some factual basis for concluding that the defendant abused alcohol. In People v. Lindsay, supra,10 Cal.App.4th 1642, because the defendant had an “ ‘alcohol problem’ ” and an “ ‘addictive personality’ ” and the crime was related to his drug addiction (the defendant admitted he sold cocaine to support his addiction), the appellate court found that an alcohol prohibition was appropriate. (Id. at pp. 1644-1645.) People v. Balestra (1999) 76 Cal.App.4th 57, upheld a no-alcohol condition where the defendant smelled of alcohol at the time of the elder abuse of which she was convicted and where the trial court stated that everyone appeared to agree that the defendant had an alcohol problem. (Id. at pp. 61-62.) In the present case, there is no indication that defendant ever used or abused alcohol so that the foregoing cases do not apply.
Defendant relies upon 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), in which the appellate court found a no-alcohol condition to be unreasonable because there was no evidence the defendant had an alcohol problem. The defendant had been convicted of possessing methamphetamine and admitted that he sold the drugs to support a gambling habit. He also admitted having used marijuana, methamphetamine, amphetamine, cocaine, and alcohol since he was 14, that he drank socially and that he used methamphetamine sporadically but had had “ ‘no prior problem.’ ” (Kiddoo, supra, at p. 927.) On these facts, the appellate court concluded that the no-alcohol probation condition was not reasonably related to future criminal behavior and was invalid. (Id. at p. 928.)
The Attorney General points to People v. Beal (1997) 60 Cal.App.4th 84 (Beal), which disagreed with Kiddoo, concluding that there is a connection between substance abuse and alcohol use so that even where the defendant does not have a demonstrated problem with alcohol, a no-alcohol condition is reasonably related to future criminality. In Beal, the defendant, who admitted she had a “drug habit,” had been convicted of possession for sale and simple possession of methamphetamine and granted probation with a no-alcohol condition. (Id. at pp. 86, 87, fn. 1.) The appellate court rejected the defendant’s challenge to the condition, disagreeing with the underlying assumption in Kiddoo, which was that alcohol use and drug abuse are not reasonably related. (Beal, supra, at p. 87.) Beal reasoned 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 prohibition was within the trial court’s discretion 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.)
The Attorney General argues that, as a general matter, since the use of alcohol impairs judgment and self-control, the condition that defendant refrain from using alcohol is reasonable because it makes defendant’s successful compliance with the terms of probation more likely. But this is a generality that would make the no-alcohol condition appropriate in the case of every probationer and is the kind of arbitrariness Lent precludes. There must be some facts to show the condition is reasonable under the circumstances of the particular case. It is not justifiable simply because alcohol is generally known to impair judgment.
The theory behind the holding in Beal and similar cases is that the defendants’ behavior, whether in connection with the crime or otherwise, was affected by his or her inability to resist the use of intoxicating substances. Since alcohol is just another intoxicating substance, an across-the-board prohibition on the use of both drugs and alcohol could make it more likely that such defendants would comply with the other terms of probation.
Defendant argues that there are no facts in this case to show that his behavior was linked to the use of any intoxicating substance, either drugs or alcohol. The Attorney General contends that since defendant admitted to having possessed some quantity of marijuana at the time of the instant offenses we may presume that he possessed the drug for his personal use. But the inference the Attorney General would have us draw from this--that defendant has a history of substance abuse--is too attenuated to be reasonable. There is no evidence in this record that defendant was under the influence at the time of his arrest in this case, at the time of his arrest in the prior case, or at any other time.
The Attorney General also points to defendant’s history of having possessed methamphetamine for sale as showing that defendant was probably selling methamphetamine and that, in turn, suggests that he was a drug addict because “addicts commonly traffic in drugs to support their habits.” The argument is no substitute for fact and there are no facts in this record to support that conclusion. We do note that, in connection with his 2004 probation, defendant was required to enter a drug treatment program as directed by his probation officer. But the basis for this condition, if there was a basis other than the drug-related conviction, is not included in the record before us.
Even if we accept Beal’s conclusion that a no-alcohol condition is reasonable where the defendant has a history of other drug abuse (Beal, supra,60 Cal.App.4th at p. 87), since there is no factual basis here for a finding that defendant had a history of any kind of substance abuse, there is no basis for concluding that the alcohol condition is reasonably related to his future criminality. Therefore, the condition is invalid under Lent. (People v. Lent, supra, 15 Cal.3d 481.) We modify the judgment by deleting the condition.
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 shall read 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: Rushing, P.J. Duffy, J.