Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR184533
Kline, P.J.
Stevie Hudson appeals from a conviction of false personation entered upon his plea of no contest. He argues that the trial court’s imposition of probation conditions related to alcohol use was an abuse of discretion and violated his constitutional right to due process. We affirm.
STATEMENT OF THE CASE
Appellant was charged by felony complaint filed on June 7, 2006, with one count of false personation (Pen. Code, § 529). He initially entered a plea of not guilty, then on June 16 entered a negotiated plea of no contest to the charge. It was agreed appellant would be placed on probation, with “standard probation terms” and 90 days in county jail. On July 17, appellant was placed on formal probation for three years and ordered to spend 90 days in county jail (with credit for time served). The terms of probation included, over appellant’s objection, a requirement that appellant refrain from use of alcohol and submit to alcohol testing as requested by a peace officer or probation officer.
Appellant filed a timely notice of appeal on July 27, 2006, indicating the appeal was based on the sentence or other matters occurring after the plea.
STATEMENT OF FACTS
According to the probation report, on June 5, 2006, a Solano County deputy sheriff noticed a truck parked in a parking lot in Vallejo with no license plates, an incorrectly displayed temporary operating permit, and a broken passenger wing window. Appellant was in the truck. When the deputy asked appellant for identification, he said he had none and gave his name and birthdate as his brother’s, Rayford Hudson. Appellant was later identified by his real name.
Examining the temporary operating permit, the deputy noticed a “3” had been altered to an “8” and performed a registration check which revealed the truck had not been registered in several years. The deputy told appellant the truck would be towed, looked inside the truck and found a wallet on the front seat that contained appellant’s California Identification card.
Appellant admitted to the deputy that he had a warrant out for his arrest and that he had altered the temporary operating permit. He stated he had been arrested in Stockton two weeks before for driving under the influence and, at that time, used his brother’s name. The deputy contacted the San Joaquin County jail and verified that a person using appellant’s brother’s name had been arrested for driving under the influence at 3:30 a.m. on May 20, 2006.
The probation officer contacted the San Joaquin County Superior Court regarding the May 20 arrest and was informed the case had been dismissed with no reason given. The court clerk indicated the district attorney’s office “may refile the case, using the defendant’s correct name.”
The probation officer also contacted the San Jose probation department and was informed that appellant was on summary probation in two cases involving driving while driver’s license is suspended or revoked for driving under the influence (Veh. Code, § 14601.2, subd. (a)), but that both cases were “in revoked status due to active warrants.”
The probation report indicates that appellant has a history of unsuccessful performance on probation dating back to 1979. The report notes that “[t]he majority of the defendant’s convictions are related to substance abuse. His substance abuse issues for the past 27 years could be a barrier to successful completion of probation unless he participates in substance abuse counseling as directed.” The attached criminal history reflects 18 convictions between 1979 and 2006, including three convictions for driving under the influence, one for driving while driver’s license was suspended for driving under the influence, and two for possession of a controlled substance and paraphernalia. The majority of these were misdemeanor convictions; four (including the present offense) were felonies.
At the sentencing hearing, defense counsel argued that drug and alcohol terms on appellant’s probation were inappropriate because there was no nexus between such terms and the facts of the offense. The prosecutor agreed. The court stated, “That’s probably correct.” After a brief discussion of a different point, the court stated, “Now that I’m reviewing this report again, I do think in this offense drug terms—or at least alcohol terms are appropriate. I see that he’s done this exact same thing, use of his brother’s name, when he’s been arrested for driving under the influence, and that was his Stockton situation. So, I think there is a nexus with respect to alcohol. I agree there’s nothing with respect to drugs. [¶] . . . [¶] And I think the facts of this case, using his brother’s name, and his past history of using his brother’s name when he’s been arrested for alcohol-related offenses is a sufficient nexus.”
DISCUSSION
“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. (See In re Bushman (1970) 1 Cal.3d 767, 776, disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1; People v. Dominguez (1967) 256 Cal.App.2d 623, 627; People v. Lent, supra, 15 Cal.3d at p. 486; People v. Richards (1976) 17 Cal.3d 614, 619.) ‘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 court’s discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, we have 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, supra, 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 [(1993)] 5 Cal.4th [228,] 233.)” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.)
Appellant argues the alcohol condition is not reasonably related to the offense of which he was convicted or to future criminality because there was no alcohol or drug use involved in the current offense and the connection the court found with appellant’s conduct in the Stockton case involved an unadjudicated incident upon which the court could not properly rely. Appellant offers several cases as examples of properly imposed alcohol conditions, where the facts of the current offense had some relation to alcohol use. (People v. Lindsay (1992) 10 Cal.App.4th 1642 [conviction for sale of cocaine; defendant acknowledged having alcohol problem and “addictive personality” and court viewed alcohol consumption as obstacle to overcoming drug addiction]; People v. Smith (1983) 145 Cal.App.3d 1032 [defendant convicted of possession of phencyclidine; long criminal record and history of personality problems; physical effects of alcohol not conducive to controlled behavior]; People v. Balestra (1999) 76 Cal.App.4th 57 [conviction for elder abuse; defendant under influence of alcohol at time of offense].)
As indicated above, the trial court imposed the alcohol condition in the present case because appellant had “done this exact same thing”—used his brother’s name—when he was arrested for alcohol-related offenses in Stockton. Appellant’s complaint that the Stockton incident did not result in a conviction is not persuasive. Appellant admitted having been arrested for driving under the influence and falsely using his brother’s name at the time of the arrest. He had two outstanding warrants in cases involving driving while his driver’s license was suspended for driving under the influence. It is not much of a logical leap to conclude appellant was using his brother’s name in an attempt to evade responsibility for alcohol-related offenses. Appellant’s criminal history includes a number of alcohol-related offenses, and the probation report states that appellant’s “substance abuse issues for the past 27 years could be a barrier to successful completion of probation unless he participates in substance abuse counseling as directed.” Considering all the circumstances, we find no abuse of discretion in the court’s imposition of the alcohol condition.
Appellant further contends imposition of the alcohol condition violated his constitutional rights to due process by using the “unsubstantiated and unadjudicated” facts of the Stockton case to supply the nexus between alcohol use and the current offense. Appellant relies upon United States v. Knights (2001) 534 U.S. 112 (Knights), which held that a warrantless search of a probationer’s apartment, pursuant to a probation search condition and based on reasonable suspicion, did not violate the Fourth Amendment of the United States Constitution. Knights held, “[w]hen an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.” (Knights, at p. 121.)
Appellant argues that because the alcohol condition of his probation is continuously in effect, as opposed to a probation search condition which only becomes executable in certain circumstances, imposition of the alcohol condition must meet at a minimum the constitutional standard for conducting a probation search. Based on Knights, supra, 534 U.S. at page 121, appellant argues that before a probation condition can be imposed, there must be “sufficient evidence that there is a ‘sufficiently high probability that the criminal conduct’ it seeks to prevent might occur.” That is not the case here, he maintains, because there was no proof appellant either used a false name or drove under the influence in the Stockton case. According to appellant, the trial court imposed the alcohol condition “simply as a matter of course, or routine.”
Appellant does not explain how the Knights holding, based on the Fourth Amendment and applicable to the manner in which a probation condition executed, compels a revision of the long established standards for evaluating the validity of imposition of a probation condition. Although framed as a constitutional issue, appellant’s complaint is, again, that the court used the Stockton incident as a basis for imposing the alcohol condition. As we have explained, the court’s reliance on this incident was not improper and there was ample evidence in appellant’s criminal history that alcohol use was related to the present offense and future criminality. The record belies appellant’s assertion that the alcohol condition was imposed as a matter of routine: As described above, the court was initially inclined not to impose the condition, then changed its view after rereading the probation report.
The judgment is affirmed.
We concur:, Haerle, J., Lambden, J.