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People v. Bongo

California Court of Appeals, Second District, Sixth Division
Mar 18, 2008
No. B200307 (Cal. Ct. App. Mar. 18, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. MICHELLE BONGO, Defendant and Appellant. B200307 California Court of Appeal, Second District, Sixth Division March 18, 2008

NOT TO BE PUBLISHED

Superior Court County Super. Ct. No. 2005043120 of Los Angeles Bruce A. Clark, Judge

California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director and Richard B. Lennon, Staff Attorney, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Robert M.Snider, Deputy Attorney General, for Plaintiff and Respondent.

YEGAN, J.

Michelle Bongo appeals her conviction by plea of grand theft (Pen. Code, § 487, subd. (a)) with special findings that the theft exceeded $50,000 (§ 12022.6, subd. (a)(1)). The trial court suspended imposition of sentence and granted probation with one year jail and restitution. Appellant claims that the trial court abused its discretion in imposing alcohol and drug terms as a term of probation. We affirm.

Unless otherwise stated all statutory references are to the Penal Code.

Over a two year period, appellant and Barry Altmark embezzled $266,000 from their employer, M&C Products Analysis Tech, Inc. The theft involved 170 company checks that were entered into the company's computer accounting system. Appellant agreed to pay $105,588.46 restitution.

Although the probation department recommended state prison, the trial court granted probation with alcohol and drug terms. Appellant argued that the theft did not involve drug allegations and that the court should strike the drug terms. The trial court responded: "Based upon [appellant's] statement to the probation officer, the alcohol and drug terms are very appropriate."

Discussion

Appellant claims that alcohol and drug terms are unreasonable because she successfully completed a drug treatment program six years earlier and has remained drug free. The probation report, however, reflects a long history of substance abuse.

In 1997 appellant was convicted of two counts of burglary and possession of a controlled substance after she fraudulently returned merchandise to a Mervyn's store more than 80 times for cash. Appellant was detained and had a vial of cocaine and two spoons with residue, and was under the influence of a controlled substance. Appellant failed to successfully complete drug diversion, was ordered into a residential drug program, and placed on four years probation concurrent with the burglary probation.

The probation report stated that appellant consumed alcohol between the ages of 18 and 39, and consumed cocaine on a daily basis for 18 years. Appellant considered herself a "recovering addict" and completed an outpatient drug treatment program in 2001. In a letter to the court, appellant stated that she was drug free and regularly attends AA meetings.

Given appellant's criminal record and substance abuse history, the trial court did not err in imposing alcohol and drug terms. Probation is not a right, but an act of clemency to allow rehabilitation. (People v. Johnson (1993) 20 Cal.App.4th 106, 109; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) Appellant had prior felony convictions for burglary and possession of a controlled substance that made her presumptively ineligible for probation. (§ 1203, subd. (e)(4).) Because the prior convictions were drug related and appellant considered herself a recovering addict, the imposition of drug and alcohol terms was reasonable.

Although the embezzlement did not directly involve alcohol or drugs, the trial court reasonably inferred that appellant's prior use of alcohol and drugs made her susceptible to such activity on the future. (People v. Lindsay (1992) 10 Cal.App.4th 1642, 1645 [discussing "nexus" between alcohol consumption and drug use].) "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.]" (People v. Beal (1997) 60 Cal.App.4th 84, 87.) Common sense tells us that a decrease in self-control can lead to crime, especially in light of appellant's criminal record. (Ibid.)

Appellant's reliance on People v. Kiddoo (1990) 225 Cal.App.3d 922 is misplaced because, in that case, the probation terms (prohibiting possession or consumption of alcoholic beverages) were not reasonably related to defendant's future criminal behavior. (Id., at pp. 927-928.) Here the alcohol and drug terms relate to appellant's past and future criminality and were imposed to improve appellant's chances for rehabilitation and to protect public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.)

Appellant is a recovering addict and attends AA meetings regularly. If appellant believed the alcohol and drug terms were too harsh, she had the right to refuse probation and undergo sentence. (See e.g., People v. Beal, supra, 60 Cal.App.4th at p. 87.) We reject the argument that the probation terms are arbitrary, capricious, or exceeds the bounds of reason. (People v. Welch (1993) 5 Cal.4th 228, 233-234.)

The judgment is affirmed.

We concur GILBERT, P.J., COFFEE, J.


Summaries of

People v. Bongo

California Court of Appeals, Second District, Sixth Division
Mar 18, 2008
No. B200307 (Cal. Ct. App. Mar. 18, 2008)
Case details for

People v. Bongo

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MICHELLE BONGO, Defendant and…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Mar 18, 2008

Citations

No. B200307 (Cal. Ct. App. Mar. 18, 2008)