Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MCYKCRF080000875003.
MAURO, J.
Defendant Angelia Dodson pleaded guilty to possessing methamphetamine. She contends on appeal that the trial court abused its discretion in ordering, as a condition of probation, that she “not associate with persons known to her to be illegal drug offenders or associate with persons with whom association is prohibited by her probation officer for those reasons.” Defendant challenges this probation condition because it currently precludes her from having contact with her registered domestic partner, Audra Merrill, a codefendant.
The record supports the trial court’s conclusion that Merrill is a known drug offender. In addition, the record establishes that the trial court and the probation officer have given defendant and Merrill many opportunities to maintain family unity through reasonable drug testing and communication with the probation officer, but defendant and Merrill have not availed themselves of these opportunities. Under the circumstances, the condition of probation is reasonable and the trial court did not abuse its discretion. We will affirm the judgment.
FACTS
On October 31, 2008, the Siskiyou County District Attorney filed an information charging defendant with possession of methamphetamine and being under the influence of a controlled substance (Health & Saf. Code, §§ 11377, subd. (a), 11550, subd. (a).) Audra Merrill was charged as a codefendant on the methamphetamine possession charge. Defendant pleaded guilty to possessing methamphetamine and, in an accompanying case, pleaded guilty to misdemeanor assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a).)
Undesignated statutory references are to the Penal Code.
On April 15, 2009, the court sentenced defendant to three years of formal probation under Proposition 36 (§ 1210.1) with various conditions of probation, including that defendant “not associate with persons known to him/her to be illegal drug offenders or associate with persons with whom association is prohibited by his/her supervising probation officer for those reasons.”
On November 2, 2009, defendant’s probation officer, Susan George, ordered defendant not to have contact with Merrill because she was a known drug offender. The prohibition was based on the fact Merrill was a codefendant in defendant’s drug case and was in the deferred entry of judgment program (§ 1000 et seq.); George had supervised Merrill previously as a drug offender; and Merrill associated with other drug probationers. Defendant admitted to George that Merrill was using drugs and acknowledged it was best if she had no contact. George was not aware that defendant and Merrill were domestic partners. They were not cohabiting; defendant lived in Yreka and Merrill lived in Mount Shasta.
Merrill was under the supervision of Child Protective Services (CPS) due to the drug charges. George received reports from the behavioral health staff that defendant and Merrill were seeing each other and that Merrill had been staying with defendant. George talked to defendant about it but defendant denied Merrill was staying with her. George did not believe her because defendant “would repeat back to me what I said to Merrill word for word.” Defendant stated she would like to have contact with Merrill, and George replied that she would allow contact if Merrill participated in drug testing and attended 12-step meetings. Thereafter, George met with Merrill and asked her to attend three 12-step meetings and return in one week with proof of attendance. Merrill never returned.
On three occasions, George tried to contact defendant at her residence to no avail, even though George thought defendant was home. She tried again on April 14, 2010, and no one responded to her knock on the door for about eight minutes. Defendant’s roommate eventually opened the door but he would not permit George to enter until he telephoned defendant, who was not present. George searched the residence and found Merrill and her daughter hiding in the back bedroom. George stated, “Oh, so that’s why you guys didn’t want me to come in.”
On April 20, 2010, the probation department filed an order to show cause why defendant’s probation should not be revoked based on her contact with Merrill.
At the hearing on June 30, 2010, defendant admitted having in-person contact with Merrill on at least three occasions in contravention of her probation condition. According to defendant, Merrill was no longer using drugs, defendant wanted to have contact with her, and defendant informed George that Merrill would be willing to submit to drug testing. Defendant testified that (1) Merrill failed to meet with George because she was caring for her ill father in Mount Shasta; (2) Merrill successfully completed the CPS requirements and her daughter was returned to her; and (3) Merrill had tested clean for drugs, although defendant neglected to bring the test results with her to court.
George did not have access to Merrill’s CPS records due to confidentiality restrictions.
Defendant’s attorney argued that Merrill never pleaded guilty to the drug offense; rather, the case was continued for two years on the condition that she comply with her CPS case plan. Defendant’s attorney added that Merrill tested randomly for drugs, tested clean, and went to meetings. Merrill’s children were returned to her. Defendant’s attorney argued that Merrill was not a known drug offender and the probation department made no effort to verify that she was a drug user.
The trial court stated that in order to give probationers the best chance of success, probation officers necessarily have to look at the history of the probationer’s associates. Merrill was charged with a drug offense and her children were removed by CPS due to her drug use. The trial court stated it would be very unusual if Merrill was admitted to deferred entry of judgment but did not enter a guilty plea, and that under the circumstances, it was reasonable for George to conclude that Merrill was an illegal drug offender.
The trial court observed that defendant had been successful in her drug treatment thus far, but she violated the terms of probation by having contact with Merrill after being prohibited from doing so, which warranted some form of punishment or consequence. Nevertheless, the trial court was concerned that defendant and Merrill were a family unit parenting children. The trial court asked George to make efforts to determine if Merrill was no longer using drugs so that defendant could have contact with her. However, the burden was on Merrill to contact George so that George could satisfy herself that Merrill was clean and sober. If Merrill did not comply or was “found to be dirty at any point, ” the order for no contact would be reinstated. The trial court referred the matter to probation for a sentencing report, and indicated that if Merrill presented herself for testing, that might give George “some inclination on how -- what recommendation she would make to the court.”
The trial court ordered George to provide defendant and Merrill with round-trip bus passes so that Merrill could travel from Mount Shasta to Yreka to meet with George. George indicated she would be glad to meet with defendant and Merrill and work on this issue, but she wanted Merrill to voluntarily take a drug test. The trial court continued the matter until 3:00 p.m. that afternoon.
Prior to the afternoon session, defendant went to Mount Shasta and obtained Merrill’s drug test results from a test performed by Merrill’s doctor five weeks earlier. Merrill was unable to return to court with defendant because she was working. George reiterated she wanted Merrill to have a drug test at the probation office. The trial court continued the matter to review the files and give George the opportunity to meet with Merrill. The trial court said if Merrill was clean and sober, George was unlikely to object to the family being under the same roof, and the trial court was interested in getting the family back together as soon as possible.
At a subsequent hearing two weeks later, the trial court observed that Merrill failed to contact George to be tested. Defendant’s attorney responded that Merrill was willing to be drug tested by her own doctor, but not by George due to the difficulty of traveling to Yreka, and because she believed George was biased against her. The People replied that requiring Merrill to come to Yreka was not unreasonably difficult. Furthermore, drug testing by Merrill’s doctor was not acceptable because it would not be subject to the rigorous controls used by the probation department to prevent a person from falsifying the test results.
The People stated that George was trying to make it possible for Merrill and defendant to have contact and was willing to work with them, but Merrill and defendant were not cooperating with George. The trial court had attempted to preserve defendant’s family relationship, but defendant failed to avail herself of that opportunity. As far as the trial court was concerned, “at this point Ms. Merrill is a known drug offender” and her resistance to coming in for reliable drug testing with George did not engender a great deal of confidence. The trial court said it would order that defendant have no contact with Merrill unless Merrill tested to George’s satisfaction and George determined that such contact was no longer a danger.
Thereafter, at the sentencing hearing, the trial court reinstated probation until April 14, 2012, on the same terms and conditions as previously ordered.
DISCUSSION
Defendant contends (1) “the trial court abused its discretion in finding that the ‘no contact’ order prohibiting [defendant] from associating with her domestic partner was reasonable;” and (2) “the re-imposition of the ‘no contact’ condition when [defendant] was reinstated on probation is unreasonable and the condition must be stricken.” Defendant argues the “no contact” condition was not reasonable because defendant did not have a history of drug offenses, had not reoffended during her probation, Merrill was her domestic partner, and Merrill was not a known illegal drug offender because she had not been convicted of any drug-related offenses.
Section 1203.1 gives trial courts broad discretion to impose conditions of probation to foster rehabilitation of the defendant, protect the public and the victim, and ensure that justice is done. (§ 1203.1, subd. (j); Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319.) “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.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.” (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted.) As with any exercise of discretion, the court violates this standard when it imposes a condition of probation that is arbitrary, capricious or exceeds the bounds of reason under the circumstances. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
If a probation condition serves to rehabilitate and protect public safety, the condition may infringe upon constitutional rights otherwise enjoyed by 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 (Peck).) However, “[a] probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
Thus, “[t]he right to associate... ‘may be restricted if reasonably necessary to accomplish the essential needs of the state and public order.’ [Citations.]” (People v. Lopez (1998) 66 Cal.App.4th 615, 627–628.) “Where a defendant is convicted of drug possession and admits drug use, a condition of probation that the defendant not associate with other admitted and suspected users is valid.” (Peck, supra, 52 Cal.App.4th at p. 363.) A probation condition prohibiting the defendant from associating with reputed drug users has been upheld even where the defendant’s spouse was a presumed drug user. (In re Peeler (1968) 266 Cal.App.2d 483, 492–493.) Such a probation condition is narrowly tailored to the state’s interest in preventing distribution of controlled substances. (Peck, supra, 52 Cal.App.4th at p. 364; see also People v. Jungers (2005) 127 Cal.App.4th 698, 703-704 [upholding condition that defendant convicted of domestic violence not initiate contact with his spouse]; People v. Wardlow (1991) 227 Cal.App.3d 360, 367 [upholding condition preventing convicted child molester from associating with his brothers who were child molesters].)
Defendant’s crime involved narcotics and she testified that both she and Merrill had used drugs. Indeed, at the time George imposed the no contact provision, defendant admitted that Merrill was using drugs and acknowledged it was best if she have no contact. The probation condition that defendant have no contact with known drug offenders, including Merrill, is directly related to defendant’s criminal offense, reasonably related to future criminality, and is narrowly tailored to the state’s interest in preventing distribution of controlled substances. (Peck, supra, 52 Cal.App.4th at p. 364; In re Peeler, supra, 266 Cal.App.2d at pp. 492–493.) The prohibition is temporary and does not permanently sever defendant’s relationship with Merrill; defendant simply cannot have any contact with her until Merrill demonstrates that she is clean and sober, or until April 2012 when defendant completes her probation.
Defendant’s claim that Merrill is not a known drug offender because she was not convicted of a drug crime is not persuasive. A person who uses drugs in violation of the law is a drug offender even if they are not prosecuted, and defendant admitted that Merrill used drugs, establishing that Merrill was known to defendant as a drug offender. Moreover, Merrill was a codefendant charged with possession of methamphetamine, and the lenient treatment she accepted under the deferred entry of judgment program required her to plead guilty to the charged crime. (§§ 1000.1, subds. (a) & (b).) The record does not contain any evidence to the contrary. As such, Merrill was known to defendant, the trial court and George as a drug offender.
Sections 1000 through 1000.4 “‘authorize the courts to “divert” from the normal criminal process persons who are formally charged with first-time possession of drugs... and are found to be suitable for treatment and rehabilitation at the local level.’” (People v. Orihuela (2004) 122 Cal.App.4th 70, 72.) At the deferred entry of judgment hearing (§ 1000.2), if the defendant consents to proceedings under the statutory provisions for deferred entry of judgment and waives his or her right to a speedy trial or a speedy preliminary hearing, the court may either refer the case to the probation department for investigation or summarily grant deferred entry of judgment provided the defendant pleads guilty to the charge or charges and waives time for pronouncement of judgment. (§§ 1000.1, subds. (a)(3) & (b), 1000.2.) If the case is referred to the probation department, the probation department must conduct an investigation and report its findings and recommendations to the court. (§ 1000.1, subd. (b).) The court makes the final determination regarding the education, treatment, or rehabilitation for the defendant. (Ibid.) If the court determines that it is appropriate, the court grants deferred entry of judgment, again provided the defendant pleads guilty and waives time for the pronouncement of judgment. (Ibid.) “If the defendant has performed satisfactorily during the period in which deferred entry of judgment was granted, at the end of that period, the criminal charge or charges shall be dismissed.” (§ 1000.3.)
The trial court was cognizant of defendant and Merrill’s domestic partner status and supportive of their desire to reunite and continue their family relationship. It accommodated defendant by delaying the proceedings so that Merrill could be drug tested by George, who quite reasonably wanted a supervised drug test to assure that Merrill was no longer using narcotics. As the trial court indicated, Merrill’s resistance to, and failure to cooperate with, such a reasonable request did not engender confidence that Merrill was in fact drug free. The court acted within its discretion by prohibiting defendant from associating with Merrill until George ascertained that she was no longer using drugs.
Defendant also contends there is insufficient evidence that she violated the “no contact” condition because there was no proof that defendant knew Merrill was at her home when George discovered her there. Defendant asserts, “For all George knew, Merrill was visiting [defendant’s roommate] who was also at the residence and had no intention of having contact with [defendant].”
The standard of proof at a probation violation hearing is proof by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.) In reviewing the record of a probation violation hearing, great deference is accorded the trial court’s decision, bearing in mind that “[p]robation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court.” (People v. Pinon (1973) 35 Cal.App.3d 120, 123.) In evaluating the evidence, we must construe the record in the light most favorable to upholding the court’s decision. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
George testified that she advised defendant not to have contact with Merrill. Defendant admitted that after George told her not to have contact, she did so on at least three different occasions. Thus, ample evidence supports the trial court’s determination that defendant “knew that you were not to have contact with [Merrill], and that you did have contact with her, and there needs to be a consequence for that or else this whole system has really no meaning.”
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., BUTZ, J.