Filed 5/30/18 P. v. Fisher CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

BRANDON SCOTT FISHER,

Defendant and Appellant.

F075416

(Super. Ct. No. 16CR-04939)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Jeanne Schechter, Judge.
David Elgin, Public Defender, and Armando Lope, Deputy Public Defender, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

 
Appellant Brandon Scott Fisher contends on appeal that the trial court exceeded its authority when it imposed alcohol prohibitions on appellant as a condition of his probation. The People concede and we agree. Accordingly, we remand the matter to the trial court with directions to strike probation condition Nos. 22, 24, 25 and 26.
STATEMENT OF THE CASE
Appellant was charged with two counts of corporal injury to a person with whom appellant had, or previously had, a dating or engagement relationship. (Pen. Code, § 273.5, subd. (a).)
On February 15, 2017, appellant pled no contest to count 1 and count 2 was dismissed. The trial court suspended imposition of sentence for three years, placed appellant on three years’ felony probation, and ordered him to serve 90 days in county jail. The following four alcohol-related probation conditions were imposed by the trial court:
“22. Totally abstain from the use or possession of intoxicating beverages. [¶] … [¶]
“24. Shall not enter any establishment where alcohol is the primary item for sale or use; not enter any vehicle where alcohol is present.
“25. Submit to alcohol breath testing as directed by any Probation or Peace Officer.
“26. If arrested for driving under the influence of alcohol in violation of section 23152 or 23153 of the Vehicle Code, shall not refuse to submit to a chemical test of your blood, breath or urine.”
On March 14, 2017, appellant appeared in court for further sentencing proceedings. Defense counsel requested the trial court strike alcohol-related probation condition Nos. 22, 24, 25, and 26. The court declined to strike the conditions.
On April 4, 2017, appellant filed a notice of appeal.
 
DISCUSSION
Appellant argues that the trial court exceeded its authority when it imposed alcohol prohibition Nos. 22, 24, 25 and 26 as a condition of appellant’s probation. Respondent concedes that these alcohol prohibitions should be stricken.
Respondent correctly argues as follows:
“A sentencing court has broad discretion to impose conditions of probation meant to protect the public and rehabilitate a defendant. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) A probation condition is invalid if it is: (1) unrelated to the crime; (2) related to conduct which is not in itself criminal; and (3) requires or forbids conduct which is not reasonably related to future criminality. (People v. Lent [(1975)] 15 Cal.3d 481, 486.) ‘[A]ll three prongs must be satisfied before a reviewing court will invalidate a probation term.’ (People v. Olguin (2008) 45 Cal.4th 375, 379, quoting People v. Lent, supra, at p. 486.) Imposition of a probation condition is reviewed for abuse of discretion. (People v. Snow (2012) 205 Cal.App.4th 932, 940.)
“Respondent agrees that the cases on which appellant relies, People v. Beal (1997) 60 Cal.App.4th 84, People v. Lindsay (1992) 10 Cal.App.4th 1642, and People v. [Kiddoo] (1990) 225 Cal.App.3d 922, support his argument that the alcohol-related probation conditions should be stricken.”
Respondent correctly concedes that appellant’s crime was unrelated to alcohol, the probation conditions prohibited conduct which is not criminal absent other factors not present in this case, and the record does not support a finding that alcohol use by appellant was related to future criminality.
Respondent correctly concludes that the alcohol-related probation conditions are not supported by the record and, “Respondent respectfully requests that this Court strike probation conditions 22, 24, 25 and 26, but otherwise affirm the judgment.”
DISPOSITION
This matter is remanded to the trial court with directions to strike probation condition Nos. 22, 24, 25 and 26. The judgment is otherwise affirmed.