P. v. Scoggins

Filed 2/26/10 P. v. Scoggins CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

Appellant Harold Lamar Scoggins challenges two conditions of probation imposed following his no contest plea to a charge of grand theft. (Pen. Code,  487, subd. (c).) He claims the trial court erred in conditioning probation on his agreement not to use alcohol, and that he submit to regular drug and alcohol testing at a cost not to exceed $10 each month.

We conclude that any objection to the first condition was waived by appellants failure to object at the time probation was granted. On the merits, we also conclude that imposition of the conditions was not an abuse of discretion.

II.

A.

A criminal complaint was filed by the Contra Costa County District Attorneys Office charging appellant with one count of second degree robbery (Pen. Code,  211, 212, subd. (c)) and one count of assault by force likely to produce great bodily harm (Pen. Code,  245, subd. (a)(1)).

On June 30, 2009, a negotiated plea was entered by appellant. Under the terms of the plea agreement, the prosecutor amended the complaint to add a third count of felony grand theft (Pen. Code,  487, subd. (c)), to which appellant pleaded no contest. In return, the prosecutor dismissed the original two counts of the complaint. It was noted at the time the plea was announced and entered that, as part of the agreement, three years felony probation would be granted, and that appellant would serve 120 days in county jail, subject to earned custody credits. The court inquired as to whether standard formal [probation] terms had been agreed, and the prosecutor replied in the affirmative.

After the plea was entered, the court recited the probation conditions, which included that appellant obey all laws, that he abstain from using alcohol or use or possess drugs (without a prescription), and that he subject himself to drug and alcohol use detection tests as directed by the probation department at a cost of no more than $10 per month. Defense counsel objected only to the alcohol and drug testing condition, to which the court responded, [s]tandard terms of formal probation.

B.

The facts underlying the charges are taken from the probation report:

On April 24, 2009, Richmond police officers were dispatched to the 300 block of South 24th Street in Richmond in response to a reported robbery, where they located an injured victim. The victim told the officers that he was walking to a convenience store while listening to music on his iPod, when he passed a group of five or six males. One of the group members, later identified as Dionel Franklin, ran up to the victim as he passed and punched him in the head and eye, causing him to fall down. Some members of the group then surrounded the victim and began kicking him in the head and face, while others in the group who were not kicking him reached into his pockets. Appellant was a member of the latter group. The victim looked directly at appellant and a juvenile suspect, who reached toward him and laughed. Appellant stated to the victim, aint nobody gonna help you, bitch, and took the victims wallet. When the victim reached out to recover his wallet, he was kicked in the face repeatedly, and the entire group then all ran away.

Appellant and Franklin were arrested later that day. After receiving his Miranda warnings,[1] appellant agreed to speak with law enforcement investigators. Appellant initially denied any involvement in the attack on the victim, and then admitted his participation. Franklin eventually admitted his participation as well, stating he was trying to enter a bar named Rudys at the time he was arrested, and also admitted that he was drunk at the time.

III.

Respondent points out, and the record confirms, that no objection was made to the imposition of the no alcohol probation condition in the trial court. A defendants failure to object to a probation condition as unreasonable at the time it is imposed waives a challenge to the term on appeal. (People v. Welch (1993) 5 Cal.4th 228, 230 (Welch); see also People v. Tillman (2000) 22 Cal.4th 300; People v. Woods (1999) 21 Cal.4th 668, 678, fn. 5.) The waiver doctrine applies, not only when the defendant claims the term is unreasonable, but also when it is asserted to be unconstitutionally vague or overbroad. (People v. Gardineer (2000) 79 Cal.App.4th 148, 151; In re Josue S. (1999) 72 Cal.App.4th 168, 170-171.)

The rationale for this rule is that a timely objection to a term of probation allows the court the opportunity to modify or delete an allegedly unreasonable condition, or to explain why it is necessary in the particular case. (Welch, supra, 5 Cal.4th at pp. 235-236.) Additionally, [a] rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce[s] the number of costly appeals brought on that basis. [Citations.] (Id. at p. 235.)

Therefore, appellants failure to object to the condition that he abstain from the use of alcohol was waived. Since that condition was validly imposed, so too was the condition that he submit to periodic testing, to ensure he was complying with the former term, a further condition of probation to which appellant did object.[2]

Even if not waived, there was no merit to appellants contention that the condition that he refrain from using alcohol was improper. First, at the time of making his plea, appellant was only 18 years old, and could not legally buy, possess, or consume alcohol. Thus, the agreement that he abstain from using alcohol is already imbedded in the more general probation condition that he obey all laws, another common condition of probation to which no objection was made below or on appeal.

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 . . . . (People v. Dominguez (1967) 256 Cal.App.2d 623, 627 . . . .) (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted (Lent).) Whether an alcohol-use condition of probation is an abuse of the trial courts discretion is determined by the particular facts of each case. [Citations.] (People v. Lindsay (1992) 10 Cal.App.4th 1642, 1644.)

We have already concluded that this condition was proper under Lent because it was itself criminal for appellant to use alcohol, the second factor referenced in Lent. Additionally, the condition also bore a direct relationship to the crime itself. Appellant and his codefendant Franklin both admitted that they were intoxicated at the time of the crime. Thus, the terms also satisfied the first factor referenced in Lent.

Lastly, given the obvious connection between the use of alcohol and the crime in this case, it is a reasonable inference for the court to make that restricting appellants future use of alcohol is also related to reducing the chances of his future criminality, the third factor in Lent.

IV.

DISPOSITION

The judgment, including the terms imposed for appellants grant of probation, is affirmed.

_________________________

RUVOLO, P. J.

We concur:

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REARDON, J.

_________________________

SEPULVEDA, J.

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[1]Miranda v. Arizona (1966) 384 U.S. 436.

[2] Not only was the objection waived, but the abstention condition was tacitly agreed to by all parties when the plea was entered. At that time, the court confirmed that the grant of probation was to include standard formal conditions, a group of customary probation terms which apparently included abstention from the use of alcohol.