Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM025886
DAVIS, J.
Pursuant to a plea bargain, defendant William Richard Tovar pleaded no contest to one count of possessing marijuana for sale. (Health & Saf. Code, § 11359.) On appeal, defendant challenges three special conditions of his placement on probation, two relating to alcohol and the other involving a sober environment generally. We modify two of the conditions to require that defendant must not knowingly violate them, but otherwise affirm.
Background
During a search of defendant’s and codefendant Marilyn Gunn’s residence and storage shed, law enforcement officers found approximately 30 pounds of marijuana, three firearms, and a triple beam scale. Defendant and Gunn had medical recommendations for marijuana use, but the amount they possessed exceeded Butte County guidelines.
In May of 2007, defendant was placed on probation for three years.
Discussion
Defendant challenges three special conditions of his probation: Nos. 5, 7 and 38.
Special condition No. 5 specifies: “Totally refrain from the use or possession of any alcoholic beverages and not enter any place of business or location where alcohol is the primary item for sale or use.” No. 7 states: “Submit to and pay for any expense (PC 1203.1ab) of drug, narcotic or alcohol use detection test as directed by any peace officer, probation officer or court.” (Defendant challenges only the alcohol use portion of No. 7.) And No. 38 provides: “Reside at a clean and sober living environment as approved by your probation officer.”
We will begin our discussion on a point of agreement. In a supplemental brief, defendant asserts that special condition Nos. 5 and 38 are unconstitutionally vague and overbroad because each fails to require that he have “knowledge.” (See In re Sheena K. (2007) 40 Cal.4th 875, 888, 891-892.) The People have no objection to modifying these two conditions to incorporate a knowledge requirement in the same manner that this court did for codefendant Marilyn Gunn’s case (People v. Gunn (Feb. 29, 2008, C055901 [nonpub. opn.] (Gunn)); neither do we. Accordingly, if these conditions survive defendant’s other legal challenge, they will be modified to incorporate that knowledge requirement.
Now we turn to the other legal challenge. A trial court has broad discretion to impose probation conditions that will foster rehabilitation and protect public safety, but these conditions must be “reasonable.” (Pen. Code, § 1203.1, subd. (j); People v. Beal (1997) 60 Cal.App.4th 84, 86 (Beal).) A probation condition is invalid only if (1) it has no relationship to the crime of which the defendant was convicted, and (2) it relates to conduct which is not itself criminal, and (3) it forbids conduct which is not reasonably related to future criminality. (People v. Kiddoo (1990) 225 Cal.App.3d 922, 927 (Kiddoo); People v. Lent (1975) 15 Cal.3d 481, 486; Beal, supra, 60 Cal.App.4th at p. 86.)
Defendant contends that special condition Nos. 5 and 7 are invalid under this three-part test and consequently unreasonable. Specifically, defendant argues that he “was convicted of possession of marijuana for sale. The probation report fails to document that [he] has ever had an alcohol abuse problem or that either the present crime or any of [his] prior convictions related to alcohol use in any way whatsoever. The probation conditions relating to alcohol are irrelevant to the facts of [his] crime and history and should be eliminated.”
Preliminarily, there is a procedural obstacle to this contention. Defendant failed to object to special condition Nos. 5 and 7 when they were imposed, thereby forfeiting the contention. (People v. Welch (1993) 5 Cal.4th 228, 230; People v. Torres (1997) 52 Cal.App.4th 771, 783.)
Recognizing this roadblock, defendant claims his counsel was ineffective in failing to object to these inapplicable, alcohol-based probation conditions. Therefore, we must consider defendant’s challenge to special condition Nos. 5 and 7 in the context of an ineffective assistance claim.
To establish his counsel acted ineffectively, defendant must show that counsel acted below a standard of reasonable competence, and that prejudice resulted (i.e., there is a reasonable probability the result would have been different had counsel objected to these alcohol-based probation conditions). (People v. Anderson (2001) 25 Cal.4th 543, 569; People v. Kelly (1992) 1 Cal.4th 495, 519-520.) Defendant cannot make this showing.
The appellate courts in Beal and in People v. Lindsay (1992) 10 Cal.App.4th 1642 (Lindsay) upheld alcohol-abstinence probation conditions similar to the abstinence condition here. In those two cases, the defendants were convicted of, respectively, possessing methamphetamine and selling cocaine, and had, respectively, substance abuse problems with these drugs. (Beal, supra, 60 Cal.App.4th at pp. 85-86, 87; Lindsay, supra, 10 Cal.App.4th at pp. 1643, 1644-1645.) Beal and Lindsay found these alcohol-abstinence probation conditions valid because the conditions related to these convictions and to future criminality. (Beal, supra, at pp. 85-86; Lindsay, supra, at pp. 1644-1645.) As Beal explained, “empirical evidence shows that there is a nexus between drug use and alcohol consumption. 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.” (Beal, supra, at p. 87; accord, People v. Smith (1983) 145 Cal.App.3d 1032, 1033-1035 (Smith) [involving, again, nonalcohol drug abuse problem and drug conviction, and upholding alcohol-abstinence probation condition].)
Defendant falls within the confines of Beal, Lindsay and Smith. Under those three decisions, alcohol-abstinence probation conditions have been upheld where the defendant has a (nonalcohol) drug conviction and drug abuse problem. That describes defendant’s situation. Defendant admitted in the probation report that he had smoked three to four “bowls” of marijuana daily for approximately 50 years (he is in his late 70s), that he is “most likely . . . addicted” to marijuana, and that he would probably benefit from a drug treatment program (which was also imposed as a probation condition). Defendant also had drug-related convictions in 1960, 1971, 1998, and 2001, two prison terms, two parole violations, and has been roughly a beer-a-day drinker for the past 40 years.
There is a decision that stands in contrast to the Beal-Lindsay-Smith triumvirate: Kiddoo, supra, 225 Cal.App.3d 922. But Kiddoo is distinguishable here. Kiddoo found an alcohol-abstinence probation condition invalid because the condition was not related to the crime at issue (methamphetamine possession) or to future criminality; the defendant in Kiddoo, though, used methamphetamine only “sporadically.” (Kiddoo, supra, 225 Cal.App.3d at pp. 927-928; see also Lindsay, supra, 10 Cal.App.4th at p. 1644.)
Defendant cannot show that his counsel rendered ineffective assistance by failing to object to the alcohol-abstinence special probation conditions. Any objection would have been futile, and therefore the lack of objection was not prejudicial.
Disposition
Special condition No. 5 is modified to require that defendant “Totally refrain from the use or possession of any alcoholic beverages and not knowingly enter any place of business or location where alcohol is the primary item for sale or use.” Special condition No. 38 is modified to require that defendant “Refrain from residing in a living environment that you know has not been approved by your probation officer as a clean and sober living environment.” (See Gunn, supra, C055901.) As so modified, the judgment (order of probation) is affirmed.
We concur: BLEASE, Acting P.J., BUTZ, J.