Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Super. Ct. Nos. SCS201166 & SCD202873
McINTYRE, J.
In two separate cases, Judy Elizabeth Bentley entered negotiated guilty pleas to possession of methamphetamine for sale in violation of Health and Safety Code section 11378 and to one count of forgery of an altered access card in violation of Penal Code section 484i, subdivision (b). As part of the plea bargain, Bentley was to be placed on probation for three years, serve a stipulated term of 365 days in jail and have other pending charges against her dismissed. The trial court sentenced Bentley in accordance with the terms of the plea bargain, but also imposed as a condition of probation that Bentley have no contact with Calvin Delathouwer, her codefendant in the forgery case. At the time of sentencing, Bentley was engaged to marry Delathouwer.
Bentley appeals, contending the no-contact condition of probation order was an abuse of discretion and cannot withstand constitutional scrutiny.
FACTS
On March 8, 2006, a police officer saw Bentley and James Tompkins in a parked car near a motel. When the officer drove by the car a second time, Bentley and Tompkins got out of the car and began to walk away. The officer stopped them and observed Bentley's purse on the ground next to the passenger side of the car. Inside the purse were 11.9 grams of methamphetamine and a pipe for smoking methamphetamine.
On March 22 the same officer saw Bentley parked in a car in the same area. Inside the car was Bentley's backpack, which contained 22 codeine pills in an unlabeled prescription bottle. The officer performed field sobriety tests and determined Bentley was under the influence of a controlled substance.
On September 19 the trial court issued a bench warrant for Bentley's arrest because she did not appear at a hearing. On November 15 federal marshals contacted Bentley and Delathouwer at a Carlsbad motel room, which Delathouwer had rented using a fictitious driver's license. Inside the room were: numerous "washed" and counterfeit $100 and $1 bills; 10 altered access cards; a receipt from the use of an altered access card; a shaving cream can with a false bottom that had "washed" bills and access cards inside; an altered ATM card; a color printer and laminating kit; a check-making template; a watch with a false compartment containing a label tape marked with an access card number; various account numbers; three birth certificates; three blank checks with differing accounts; hotel keys; credit card applications; an embossing heat tool; two T-Mobile Blackberry telephones; and 119 different customer access/credit card profiles from the Hyatt Resort Hotel.
At the time, Delathouwer was on bail for forgery and fraud charges. Bentley told police she was "wholly responsible for anything of a criminal nature found in the room."
DISCUSSION
Bentley contends the no-contact probation condition is unreasonable, restricts her right of association and constitutes cruel and unusual punishment.
Where probation is permitted by statute, the trial court is vested with a wide discretion, which will not be disturbed in the absence of abuse. (People v. Hainline (1933) 219 Cal. 532, 534.) We review a probation condition for abuse of discretion. (People v. Lent (1975) 15 Cal.3d 481, 485-487 (Lent).) 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. Welch (1993) 5 Cal.4th 228, 234.)
The court may impose conditions of probation "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 . . . ." (Pen. Code, § 1203.1, subd. (j).) The court's discretion is broad in this regard, but not absolute: a probation condition is valid unless it " '(1) has no relationship to the crime of which the [defendant] was convicted, (2) relates to conduct [that] is not in itself criminal, and (3) requires or forbids conduct [that] is not reasonably related to future criminality . . . .' [Citation.]" (Lent, supra, 15 Cal.3d at pp. 485-487.)
Because probation conditions foster rehabilitation and protect the public safety, they may impinge upon the constitutional rights of the probationer who is "not entitled to the same degree of constitutional protection as other citizens." (People v. Peck (1996) 52 Cal.App.4th 351, 362.) As a result, restrictions placed upon the probationer's right of association are permissible if reasonably necessary to accomplish these goals. (People v. Robinson (1988) 199 Cal.App.3d 816, 818.) Further, probation conditions that "impinge on constitutional rights must be tailored carefully and 'reasonably related to the compelling state interest in reformation and rehabilitation . . . .' " (People v. Delvalle (1994) 26 Cal.App.4th 869, 879.)
Marriage is a basic civil right and is entitled to constitutional protection. (See Loving v. Virginia (1967) 388 U.S. 1, 12, [marriage is "one of the 'basic civil rights of man,' fundamental to our very existence and survival"].) Accordingly, a condition of probation restricting marital association plainly implicates the constitutional rights of privacy, liberty and freedom of association and must be subjected to special scrutiny. We recognize that Bentley and Delathouwer were engaged to be married as opposed to being married at the time of sentencing. However, for purposes of this appeal, we shall not dwell on that distinction. A number of cases have approved relatively broad restrictions in cases dealing with fiancés or girlfriends. (See, e.g., People v. Celestine (1992) 9 Cal.App.4th 1370, 1375-82 [co-arrestee girlfriend]; In re Peeler (1968) 266 Cal.App.2d 483 [spouse]; Edwards v. State (1976) 74 Wis.2d 79 [246 N.W.2d 109]; Annot. (1980) 99 A.L.R.3d 967 [prospective spouse]; United States v. Bortels (6th Cir. 1992) 962 F.2d 558; State v. Davis (Idaho Ct.App. 1984) 687 P.2d 998; State v. Donovan (Ariz.Ct.App. 1977) 568 P.2d 1107; Isaacs v. State (Fla.Dist.Ct.App. 1977) 351 So.2d 359.)
Here, the three-prong Lent test was satisfied; there was no abuse of discretion in forbidding Bentley from associating with Delathouwer as a condition of her probation and it was a valid condition. (Lent, supra, 15 Cal.3d at p. 486.) The no-contact probation condition was directly related to Bentley's conviction of forgery of an altered access card. Delathouwer was Bentley's codefendant in Superior Court Case No. SCD 202873 (the forgery case). The probation condition related to conduct that is not in itself criminal─namely, associating with another person. The condition also was reasonably related to Bentley's future criminality. The contents of the motel room showed that Bentley and Delathouwer had set up a relatively sophisticated scheme to use access cards, credit cards and checks to steal other people's identities and money. Bentley, who was 19 years old and had a seventh grade education, previously had not been charged with a fraud or forgery crime. However, for a year Bentley had spent most of her time with Delathouwer, who was on bail for forgery and fraud in an Orange County case. The court reasonably could have concluded that any criminal sophistication involved in the fraudulent scheme was provided by Delathouwer rather than Bentley and that prohibiting her from associating with her criminal mentor was a rational action to help her remain crime-free. "[T]he environment in which a probationer serves probation is an important factor on the likelihood that probation will be successfully completed." (People v. Robinson, supra, 199 Cal.App.3d at p. 818.)
Although the no-contact probation condition involved Bentley's fiancé, it was reasonably necessary to accomplish the needs of the state as they relate to Bentley's rehabilitation and protection of the public safety; the condition passed constitutional scrutiny. (See People v. Robinson, supra, 199 Cal.App.3d at p. 818.)
Bentley claims that the no-contact probation constituted cruel and unusual punishment, but does not support the claim with any legal authority or argument. We deem the claim forfeited. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.)
We conclude that the restriction on Bentley's association with her criminal partner─even though she and Delathouwer were engaged to be married─was reasonable and valid. The no-contact probation condition places the key to relief in the hands of Bentley and her fiancé. The court expressed a willingness to monitor the progress of Bentley to see whether a modification or elimination of this condition would be appropriate in the future. We find no basis on which to strike or modify the no-contact probation condition.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.