Opinion
NOT TO BE PUBLISHED
Received for posting 5/14/10
Marin County Super. Ct. No. S.C. 160188.
McGuiness, P.J.
Defendant Alan David Lerman pleaded guilty to one felony offense of driving under the influence of alcohol or drugs, and three misdemeanor offenses of driving with a suspended or revoked license. The court suspended imposition of sentence and placed defendant on supervised probation for a term of three years. Over defendant’s objection, the court imposed the following probationary condition: compliance with all directions of his mental health worker, including taking medications as directed. Defendant now renews his argument that the trial court should not have imposed the mental health condition. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 13, 2008, a San Rafael Police Officer stopped defendant regarding an earlier complaint received by the police that defendant appeared to be driving under the influence of alcohol. Defendant told the officer that he had driven his car for a short distance, that his license was suspended, that he had consumed one quart of beer over the course of ten hours, and “he had numerous medications and pills that he took.” Defendant was arrested after he refused to take a preliminary alcohol screening test and failed to perform field sobriety tests as explained and demonstrated by the officer.
On September 30, 2008, after a preliminary hearing, the court held defendant to answer on one count of driving while under the influence of alcohol, as a felony offense, and three misdemeanor counts of driving with a suspended or revoked license. At that time, defendant’s counsel moved to reduce the felony charge to a misdemeanor. In support of the request, defense counsel informed the court that defendant “has been accepted into [a] residential treatment program and he is more than willing to do that program.” Defense counsel also asserted defendant was under the care of doctors in Marin County. Defense counsel “actually contacted Marin Community Clinic and [defendant] also has a record with Marin Community Mental Health. But he is getting treated and has been under medications for his mental health conditions. So this isn’t someone who is avoiding help [or] avoiding treatment.” After hearing opposing argument by the prosecutor, and further argument from defense counsel, the court denied the motion to reduce the felony offense to a misdemeanor.
On October 14, 2008, the district attorney filed an information charging defendant with the felony offense of driving under the influence of alcohol or drugs with prior alcohol and driving related convictions and sentence enhancements for refusal to submit and willful failure to complete chemical tests (Veh. Code, §§ 23152, subds. (a), (b), 23550, subd. (a), 23577, 23578, 23612); and the misdemeanor offenses of driving with a license previously suspended or revoked for driving under the influence of alcohol and a drug, with an habitual offender sentence enhancement, (Pen. Code, § 193.7; Veh. Code, §§ 14601.2, subd. (a), 14601.3, subd. (e)(3), 23546, 23550, subd. (b), 23550.5, subd. (b), 23566, subd. (d)), driving with a license previously suspended or revoked for driving with excessive blood alcohol (Veh. Code, § 14601.5, subd. (a)), and driving with a license previously suspended or revoked for failing to provide proof of completion of a DUI program (Veh. Code, § 14601.1, subd. (a)). On November 13, 2008, defendant pleaded guilty to all charges and admitted the sentence enhancements.
Before sentencing, the court received a probation department report and an “alcohol/drug assessment” memorandum from Bay Area Community Resources, which had been requested by the probation department. The report and memorandum indicated the current felony offense for driving under the influence of alcohol was the fourth conviction suffered by the then 53 year-old defendant in the preceding 10 years. He also had prior convictions for domestic violence and fraud, and had been incarcerated in federal prison. His prior performance on probation was marginal, and he continued to commit new offenses while on probation. Defendant reported he had graduated college, owned and operated a mortgage company from 1979 to 1998, and a fishing resort and bar from 1992 to 1999. In 1999, defendant was convicted of misdemeanor domestic violence. His life became unmanageable, he lost his home, his job and all his assets, and he had been mostly homeless and unemployable since that time. Before the current offense, defendant reported he had been under a doctor’s care for “insomnia” and “bi-polar, ” and he had received treatment through Marin Community Mental Health. He also reported he had “several diagnoses as a child and adult, depression, bi-polar and anxiety attacks. He stated that he [had] been prescribed, Wellbutrin, Neurontin, [and] Seroquel daily for three-and-a-half years. He also was prescribed Zyprexa, Remadin, Valium and Ambien. [He] reported that he was not taking any of these prescribed medications since entering the in-custody treatment program” in September 2008. Defendant tried to obtain employment during the preceding decade but his severe impairment from his mental illness caused him to lose jobs. As to his future plans, defendant wanted to enter a residential treatment program, noting that before his current incarceration he attended AA meetings regularly, he had a sponsor, he had been “trying to work the 12 steps, ” and while incarcerated he was attending meetings. He hoped to receive government benefits for his financial support and to continue in an alcohol recovery program. He had a “ ‘slip’ ” on the day of the current offense, but knew what he should do. He had “obtained treatment for his bi-polar illness and [would] continue this treatment once released.”
The probation officer recommended probation as the appropriate disposition: “The defendant could benefit from the support and structure of a residential treatment program and supervised probation to help him establish a life that will place him at low risk of future criminal offenses. [Defendant] needs to avail himself of community recovery resources and mental health treatment so that he can maintain a stable residence and prevent future relapses.” To facilitate defendant’s ability to comply with the other probationary terms and deter future criminality, the probation officer recommended that defendant successfully complete a residential treatment program. The probation officer also recommended the following mental health conditions: that defendant “comply with all directions of [his] mental health worker, including taking medications as directed, ” and that defendant consent to “release of information to allow Community Mental Health or other treatment staff to communicate with the [p]robation [d]epartment regarding participation in treatment, results of tests, compliance with medications, and any recommendations for additional treatment medication.”
At sentencing on December 10, 2008, defendant’s counsel objected to the mental health conditions. Despite earlier representations regarding defendant’s mental health conditions and his use of prescribed medications, defense counsel represented for the first time that defendant’s doctors were “trying to diagnose” the mental health conditions they believed he may have, and “trying to figure out” what medications he needed, if any. Defense counsel alternatively argued there was no reason to believe defendant needed to be ordered to take medications because he had been voluntarily getting help, and such an order would be appropriate only if he needed medication, was not compliant, and the court had a “psyche eval.” The court noted the probation report discussed a “bipolar condition, ” and defendant had been receiving help from Marin Community Mental Health. In response, defense counsel confirmed defendant had asked for help from Marin Community Mental Health, and he had to stop taking the prescribed medications because he had not been allowed to take medications while he participated in an in-custody treatment program. Nevertheless, defense counsel argued it was not appropriate or lawful to impose the mental health conditions because defendant was not currently taking medications, and there was no report of a “psyche eval, ” but just defendant’s “own reporting.” In response, the prosecutor argued the mental health conditions did not require defendant to take medication, but only required him to comply if a mental health worker determined medication was appropriate. Following argument, the court imposed the following conditions: “[¶] You must enter into and complete residential treatment program as directed by the probation officer. You must comply with all directions of a mental health worker in the event you have a mental health worker. [¶] You must sign an authorization for release of information to allow Community Mental Health, or other treatment staff, to communicate with probation in the event you have a mental health worker and there are matters that require such communications.”
After the court imposed the mental health conditions, defense counsel noted “for the record” that she believed the conditions would discourage defendant from participating in treatment because he would have to waive any confidentiality if he chose to pursue treatment. The court explained its reasons for imposing the mental health conditions: “[I]t’s the intent of the Court, during the time he’s on probation, that he have access to and support of... Community Mental Health resources. [¶] The Court did not order that he take medications and that he be tested for medications. But it does seem important to the Court, in the context of the information in the probation presentence report, that [defendant] have access to Community Mental Health and treatment staff, and I have so ordered.” The court rejected defense counsel’s argument that the mental health conditions were not necessary because defendant had been availing himself of such services without court intervention. The court believed the conditions were appropriate because “[i]n this case, we have some serious dangerous conduct going on that, clearly, involves some situations related to his mental health, ” based on the probation officer’s discussions with defendant concerning his severe mental health issues. This timely appeal ensued.
On appeal, defendant does not renew his argument challenging the condition requiring him to consent to the release of information about his mental health treatment to his probation officer.
DISCUSSION
Defendant challenges the probation condition that he comply with all directions of a mental health worker, including taking any prescribed medications, on the following grounds: (1) the court did not make an adequate inquiry or state findings regarding his mental health conditions; (2) there was no nexus between his mental health conditions and his prior or current convictions, or a showing that his mental health would contribute to future criminality, and (3) the condition was overbroad. We conclude defendant’s challenges are unavailing.
Defendant argues the mental health condition was unreasonable because it was not supported by a sufficient inquiry and related findings regarding his mental health. He refers us to United States v. Cope (9th Cir. 2008) 527 F.3d 944 (Cope) in which the federal appellate court held that before a sentencing court could compel a person to take antipsychotic medication, the court must, among other things, develop “medically-informed records” that permit the making of medically-grounded findings that court-ordered medication is necessary under one or more of the factors required for supervised release, and would impose no greater deprivation of liberty than is reasonably necessary. (Id. at pp. 954-955.) However, the Cope court based its decision on the procedural requirements of supervised release under the federal sentencing guidelines, “which of course do not govern our determination.” (In re Luis F. (2009) 177 Cal.App.4th 176, 187 (Luis F.).) In any event, “to the extent a ‘medically-informed’ record might be required, we believe this case provides one.” (Id. at p. 190.) The trial court could reasonably have found that defendant had been medically diagnosed with mental health conditions and prescribed medications for those conditions as substantiated by defendant’s statements and those of his defense counsel at the preliminary hearing and sentencing. At the time of his arrest, defendant was “under a doctor’s care for his mental health issues, ” and he had been taking prescribed medicines “for more than [three] years before the incident that brought him before the court, and the fact that he was already taking medications for his [mental health] conditions negates any claim that he... had a personal objection to his taking such [prescribed] drugs.” (Id. at p. 190.) Thus, on this record, we reject defendant’s contention that “medical testimony” was required before the court could impose the mental health condition as a probationary term. (But cf. People v. O’Dell (2005) 126 Cal.App.4th 562, 572 [order authorizing involuntary administration of medication to render defendant competent to stand trial held invalid where no medical evidence supported it].)
The Cope court noted the federal sentencing guidelines permitted the district court to require a defendant convicted of a sexual offense to participate in a sexual offender treatment program, ” but the guidelines were silent as to any of the medication requirements the district court included as part of Cope’s treatment program. (Cope, supra, 527 F.3d at p. 953, fn. 4.)
We also disagree with defendant’s assertion that the mental health condition is unreasonable because there is no nexus between his mental health and his past, current, or future criminality. “The California Legislature has given trial courts broad discretion to devise appropriate conditions of probation, so long as they are intended to promote the ‘reformation and rehabilitation’ of the probationer. (Pen. Code, § 1203.1, subd. (j).)” (Luis F., supra, 177 Cal.App.4th at p. 188.) “ ‘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.]’ [Citation.] This test is conjunctive-all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.]” (People v. Olguin (2008) 45 Cal.4th 375, 379.) “Insofar as a probation condition serves the statutory purpose of ‘reformation and rehabilitation of the probationer, ’ ([Pen. Code, ] § 1203.1[, subd. (j)]) it necessarily follows that such a condition is ‘reasonably related to future criminality’ and thus may not be held invalid whether or not it has any ‘relationship to the crime of which the offender was convicted.’ [Citation.]” (People v. Balestra (1999) 76 Cal.App.4th 57, 65.) On this record, the trial court reasonably concluded the mental health condition was rationally related to defendant’s reformation and rehabilitation. The probation officer’s recommendation of probation was specifically predicated on defendant’s availing himself of mental health treatment, and defendant had acknowledged his intention to continue his mental health treatment when he was released from incarceration. “The fact that [defendant’s] prescriptions may not have been successful in completely eliminating [any] negative effects of his mental health problems does not lead to the conclusion that [resuming] the medications recommended by his doctors would not enhance his reformation and rehabilitation.” (Luis F., supra, at p. 191.)
Finally, we reject defendant’s argument that the mental health condition should be stricken as overbroad because it requires him to comply with an unidentified mental health worker’s “directions, ” and “the implied open-ended possibility of forced medication inherent in the mental health condition.” When read in context, the mental health condition directs defendant to cooperate with a mental health worker at either a community-based treatment facility or in coordination with a residential treatment program. The mental health condition here is unlike the “entirely open-ended” condition that this court struck in People v. O’Neill (2008) 165 Cal.App.4th 1351, 1359 (O’Neill). The condition in O’Neill was found to be overbroad because it was “unlimited and would allow the probation officer to banish [O’Neill] by forbidding contact with his family and close friends, even though such a prohibition may have no relationship to the state’s interest in reforming and rehabilitating [him.]” (Id. at p. 1358.) In contrast, as we have previously discussed, the mental health condition here is rationally related to the state’s interest in reforming and rehabilitating defendant. Moreover, the mental health condition does not place defendant “completely at the mercy” of a mental health worker. (People v. Penoli (1996) 46 Cal.App.4th 298, 308.) If defendant is “concerned about particular risks” arising from the mental health conditions, he may “seek judicial intervention-by moving to modify the probation order...-if and when [a mental health worker] seeks to exercise the delegated authority. [Citation.]” (Id. at p. 308; see Pen. Code, § 1203.3, subd. (a).) On this record, we see no reason to set aside the mental health condition “based on the hypothetical possibility that [defendant] may want to decline medication in the future.” (Luis F., supra, 177 Cal.App.4th at p. 192.) We therefore conclude the trial court did not abuse its discretion by imposing the mental health condition as a term of probation.
Penal Code, section 1203.3, subdivision (a), states, in pertinent part: “The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence.”
DISPOSITION
The judgment is affirmed.
We concur: Pollak, J., Jenkins, J.