Opinion
H030263
5-25-2007
THE PEOPLE, Plaintiff and Respondent, v. STEVEN BOYD, Defendant and Appellant.
NOT TO BE PUBLISHED
The trial court suspended imposition of sentence and placed Steven Boyd on probation after finding him guilty of violating subdivision (f)(1) of Penal Code section 290, the statute governing registration of sex offenders. On appeal, he challenges two probation conditions: a warrantless search condition and a condition allowing narcotics and field sobriety tests. We affirm the courts order.
All further statutory references are to the Penal Code unless otherwise specified.
A. Procedural History
Defendant was found guilty of failing to file a change of address as a sex offender (§ 290, subd. (f)(1)) following a court trial. The presentence probation report recommended a grant of probation on certain conditions, including three conditions relating to drugs or alcohol (conditions eight, nine, and 10) and a search condition (condition 11). At the subsequent hearing, defense counsel objected to these conditions: "I dont think that 8, 9, and 10 have any application in this case at all concerning alcohol. . . . I dont think they should be imposed, nor do I see a search issue here, really. Mr. Boyd has been compliant at all times." The probation officer indicated that defendant had admitted to drinking alcohol and stated: "I dont know that its on an excessive level, but he did drink alcohol prior to his interview with the probation officer. He also at the age of 18 admitted to using intravenous methamphetamine, and I believe that was the basis for those terms to be recommended to the Court in this case." Defense counsel indicated to the court that he believed the methamphetamine use had occurred in 1980.
Section 290, subdivision (f)(1), provides in part: "(A) Any person who was last registered at a residence address pursuant to this section who changes his or her residence address, whether within the jurisdiction in which he or she is currently registered or to a new jurisdiction inside or outside the state, shall, in person, within five working days of the move, inform the law enforcement agency or agencies with which he or she last registered of the move, the new address or transient location, if known, and any plans he or she has to return to California. [¶] (B) If the person does not know the new residence address or location at the time of the move, the registrant shall, in person, within five working days of the move, inform the last registering agency or agencies that he or she is moving. The person shall later notify the last registering agency or agencies, in writing, sent by certified or registered mail, of the new address or location within five working days of moving into the new residence address or location, whether temporary or permanent."
The probation report stated that "[t]he defendant advised he injected methamphetamine intravenously for one year when he was eighteen years old." The report disclosed defendant was born in 1954. It indicated that defendant had twice violated former Business and Professions Code section 4143 (illegal possession of a hypodermic needle or syringe) in 1980. It disclosed that defendant pled under Vehicle Code section 23103.5, subdivision (a) (plea to reckless driving in place of charge for driving under influence) in 1993. The probation report also revealed defendant had a juvenile record and a prior adult criminal record going back to 1974 that continued to 1996 (including battery, assault with deadly weapon or force likely to produce great bodily injury, theft, burglary, vandalism, commission of a lewd and lascivious act, failure to comply with registration requirements as sex offender, and sexual battery).
Vehicle Code section 23103.5, subdivision (a), states: "When the prosecution agrees to a plea of guilty or nolo contendere to a charge of a violation of Section 23103 in satisfaction of, or as a substitute for, an original charge of a violation of Section 23152, the prosecution shall state for the record a factual basis for the satisfaction or substitution, including whether or not there had been consumption of any alcoholic beverage or ingestion or administration of any drug, or both, by the defendant in connection with the offense. The statement shall set forth the facts that show whether or not there was a consumption of any alcoholic beverage or the ingestion or administration of any drug by the defendant in connection with the offense."
The court suspended imposition of sentence and placed defendant on formal probation for three years on the conditions recommended by the probation report with limited changes. The court struck proposed condition eight, which required abstention from use of alcoholic beverages and precluded their purchase or possession. It struck the word alcohol from recommended condition nine and imposed the condition that defendant "[n]ot use or possess narcotics, drugs, or other controlled substances without the prescription of a physician, not traffic in or associate with persons who traffic in or use controlled substances." The court found testing appropriate and imposed the condition that defendant "[s]ubmit to narcotics test & field sobriety test when required by Probation Officer or Peace Officer." It also imposed the condition that defendant "[v]oluntarily submit person, vehicle, place of residence or area over which you have control to search and seizure at any time of day or night with or without a Search Warrant with or without probable cause as directed by any Probation Officer or Peace Officer."
B. Applicable Law
"A States operation of a probation system . . . presents `special needs beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements. Probation, like incarceration, is `a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty. [Citation.] Probation is simply one point (or, more accurately, one set of points) on a continuum of possible punishments . . . ." (Griffin v. Wisconsin (1987) 483 U.S. 868, 873-874, fn. omitted .) "To a greater or lesser degree, it is always true of probationers (as we have said it to be true of parolees) that they do not enjoy `the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)." (Id. at p. 874.) "These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationers being at large. [Citation.] These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed. Recent research suggests that more intensive supervision can reduce recidivism [citation], and the importance of supervision has grown as probation has become an increasingly common sentence for those convicted of serious crimes [citation]. Supervision, then, is a `special need of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large." (Id. at p. 875.)
"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.] `The court may impose and require . . . [such] 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. (Pen. Code, § 1203.1, subd. (j).) The trial courts discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, [the 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. (People v. Lent [(1975)] 15 Cal.3d 481, 486 . . . .) 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.] (People v. Welch, supra, 5 Cal.4th at p. 233.)" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.)
C. Search Condition
Defendant asserts that the search condition was not reasonably related to the crime of which he was convicted or to future criminality. He argues that violation of section 290 "is not a crime involving use or possession of contraband—weapons or other items illegal by their nature or obtained illegally" and there was no evidence in the record of drug use after 1980.
"If a probation condition serves the statutory purpose of `"reformation and rehabilitation of the probationer," such condition is `"reasonably related to future criminality" and will be upheld even if it has no `"relationship to the crime of which the offender was convicted." (People v. Balestra (1999) 76 Cal.App.4th 57, 65 . . . .)" (People v. Brewer (2001) 87 Cal.App.4th 1298, 1311.) "[A] warrantless search condition is intended to ensure that the subject thereof is obeying the fundamental condition of all grants of probation, that is, the usual requirement (as here) that a probationer `obey all laws. Thus, warrantless search conditions serve a valid rehabilitative purpose, and because such a search condition is necessarily justified by its rehabilitative purpose, it is of no moment whether the underlying offense is reasonably related to theft, narcotics, or firearms . . . ." (People v. Balestra, supra, 76 Cal.App.4th at p. 67.)
"Warrantless searches are justified in the probation context because they aid in deterring further offenses by the probationer and in monitoring compliance with the terms of probation. (People v. Mason, supra, 5 Cal.3d at pp. 763-764; see People v. Bravo, supra, 43 Cal.3d at p. 610.) By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers. (See Griffin v. Wisconsin (1987) 483 U.S. 868, 875 [107 S.Ct. 3164, 3169, 97 L.Ed.2d 709] [upholding a warrantless probation search under a state regulation requiring reasonable grounds for searches].)" (People v. Robles (2000) 23 Cal.4th 789, 795.)
We conclude that defendants long criminal record, including several felony convictions, justifies a search condition, even if the mere failure to provide a change of address as required by section 290 might not. The search condition is reasonably related to deterrence of future criminality, protection of the public, and effective probation supervision.
D. Drug and Alcohol Testing Condition
Defendant contends that the drug and alcohol testing condition "does not bear any logical connection to a sex offender registration charge, and there is no evidence in the court record of [his] use of illegal narcotics for more than twenty-five years before he was sentenced." In our view, the condition is reasonable.
The California Supreme Court has recognized, in the context of conditional release from custody on a defendants own recognizance, that "Fourth Amendment considerations place constraints upon the circumstances under which random drug testing and warrantless search and seizure conditions may be imposed." (In re York (1995) 9 Cal.4th 1133, 1150.) The court, nevertheless, upheld as reasonable such conditions imposed on defendants charged with felonies involving controlled substances, stating that the "the `reasonableness of an OR release condition that implicates Fourth Amendment rights depends upon both the intrusiveness of the state conduct authorized by the condition and the strength of the states interest in imposing such a restriction in the particular circumstances." (Ibid.) It observed that "[n]umerous courts have weighed these competing considerations in evaluating the propriety of similar conditions in the context of probation. [Citations.]" (Id. at pp. 1150-1151.) In support of its observation, the Supreme Court cited a number of cases, including United States v. Williams (7th Cir. 1986) 787 F.2d 1182. (Ibid.)
In Williams, a federal Court of Appeals upheld a probation condition requiring the probationer to submit to drug screening and urinalysis, even though the underlying crime was not drug-related, because a presentence report stated that urinalysis revealed traces of marijuana in the probationers system, he admitted to using marijuana, and he was a repeat offender with a "lengthy and substantial criminal record" (U. S. v. Williams, supra, 787 F.2d at pp. 1185-1186). A similar result was reached in People v. Balestra, supra, 76 Cal.App.4th at page 68, which upheld a probation condition allowing drug and alcohol testing where defendant pleaded to elder abuse of her mother and the mother had smelled alcohol on her daughter. (Id. at pp. 61, 68.)
In In re York, supra, 9 Cal.4th 1133, the California Supreme Court noted that "[a]s is suggested by the probation cases cited above, the reasonableness of a condition necessarily depends upon the relationship of the condition to the crime or crimes with which the defendant is charged and to the defendants background, including his or her prior criminal conduct. (Cf. Cal.Rules of Court, rule 414 [criteria affecting probation].)" (Id. at p. 1151, fn. 10.) Thus, a trial court in exercising its broad discretion in imposing probation conditions may take into consideration the probationers background and record as well as current offenses.
In this case, the testing condition reasonably relates to defendants history of past drug abuse, commission of a reckless driving offense possibly involving alcohol or drugs, and his admission to drinking alcohol before his interview with the probation officer. The condition serves to deter future criminality and facilitate probation supervision consistent with rehabilitative and public safety purposes. (Cf. 18 U.S.C., § 3563, subd. (a)(5) [mandating periodic drug testing for all federal probationers unless "defendants presentence report or other reliable sentencing information indicates a low risk of future substance abuse by the defendant"].)
The order granting probation is affirmed.
We concur:
RUSHING, P. J.
PREMO, J.