P. v. Haynes

Filed 9/28/06 P. v. Haynes CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Jeremiah Haynes appeals from the imposition of drug- and alcohol-related conditions of probation following his guilty plea to a charge of felony failure to appear. In the underlying case in which he failed to appear, he was charged with receiving stolen property, possession of methamphetamine for sale, and transportation of methamphetamine. He contends the court erred in including as conditions of his probation alcohol-related abstinence and testing requirements since there was no proof that alcohol was involved in his charged offenses, or that he had a problem with alcohol. Defendant also objects to a requirement that he undergo a drug and alcohol assessment to determine whether he should be ordered to participate in drug court. We agree that the drug and alcohol assessment condition, and related reservation of jurisdiction to order defendant into drug court, were unauthorized and must be stricken. In all other respects, we affirm the judgment.

I. BACKGROUND

In case No. CRF 05-9543, defendant was charged by complaint with felony failure to appear (Pen. Code, § 1320, subd. (b)). In the case in which defendant failed to appear, case No. CRF-05-9233, he was charged with possession of methamphetamine for sale (Health & Saf. Code, § 11378), transportation of methamphetamine (Health & Saf. Code, § 11379), and receiving stolen property (Pen. Code, § 496, subd. (a)).

On March 16, 2005, Crescent City police were informed that a possible stolen trailer had been seen at 2550 Old Mill Road. Officers found a trailer at that address that had recently been painted and had various identifying markers removed from it. A California license plate on the trailer was registered to a different person than the owner of the stolen trailer. The police questioned defendant, who was staying in a nearby camp trailer. He first claimed the trailer belonged to him and that he had bought the frame in Oregon and built it from the ground up. An officer present found defendant to be uncooperative and argumentative and to be exhibiting disjointed thought processes.

In a nearby woodpile, the officers found a name plate that matched the manufacturer of the stolen trailer and the license plate from the stolen trailer. The owner’s son identified the trailer as the one stolen from his father’s property. Defendant was arrested and read his Miranda[1] rights. After his arrest, defendant claimed that the trailer belonged to a “Drew Roberts,” and offered to go find Roberts. While booking defendant into jail, officers found a small clear baggie containing a white powder in his pants pocket. Defendant admitted to the probation department that the substance was methamphetamine.

On June 24, 2005, defendant failed to appear for a scheduled hearing in case No. CRF-05-9233 after he had been released on his own recognizance. He told the probation department that he slept through the court appearance because the friend with whom he was staying failed to wake him in the morning as he had promised to do.

On August 5, 2005, defendant pleaded guilty to felony failure to appear in case No. CRF 05-9543 and to misdemeanor receiving stolen property in case No. CRF-05-9233. Imposition of a two-year midterm sentence on the failure to appear was suspended and the court placed defendant on three years’ formal probation. Over defendant’s objections, the probation conditions included drug and alcohol testing, a ban on possessing or consuming alcohol, a ban on being in places where alcohol is the chief item of sale, and a mandatory drug and alcohol assessment to determine if a referral to drug court was appropriate.

Defendant timely appealed from certain of probation conditions imposed by the court.

II. DISCUSSION

On a series of grounds, defendant challenges the conditions of probation that he: (1) not possess or consume alcohol, or enter into places where alcohol is the chief item of sale; (2) submit to chemical testing for drugs and alcohol on demand; (3) submit to a blood, breath, urine, or field sobriety test on demand of any probation or peace officer; and (4) participate in a drug and alcohol assessment to determine whether he would be ordered to participate in drug court. With the exception of the drug and alcohol assessment condition, we hold that the trial court acted within its discretion in imposing the challenged conditions.

A. Application of the Lent[2] Test

Penal Code section 1203.1, subdivision (j) states that the trial court may impose all “reasonable conditions [of probation], 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 . . . .”

Defendant contends that the alcohol-related probation conditions imposed on him fall outside the trial court’s broad discretion under Penal Code section 1203.1. He asserts that these conditions violate the test set forth in Lent, supra, 15 Cal.3d 481: “The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. (Pen. Code, § 1203 et seq.) 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.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.” (Lent, supra, 15 Cal.3d at p. 486, fn. omitted.)

According to defendant, no evidence in the record links him to alcohol or alcohol use, or establishes a connection between alcohol and his crime of failure to appear or his misdemeanor offense of receiving stolen property. Since alcohol use is not criminal, the only arguable issue under Lent, in defendant’s view, is whether alcohol-related restrictions are reasonably related to future criminality on the facts of his case.[3] In support of the restrictions, the People cite the following circumstances shown in the record: Defendant admitted to the probation department that he was in possession of methamphetamine when he was arrested. The arresting officers noticed that defendant was uncooperative, argumentative, and exhibiting disjointed thought processes at the time of his arrest--behaviors that the trial court noted were characteristic of drug offenders. The court also noted that theft is often used to support a drug habit. Defendant had a prior theft conviction in 1996.

The case law has recognized that there are significant interrelationships among illicit drug use, drinking alcohol, and criminality, and that requiring abstinence from both drugs and alcohol is reasonably related to deterring future criminality, property theft, and drug crimes. For example, the Court of Appeal in People v. Beal (1997) 60 Cal.App.4th 84 (Beal) upheld an alcohol abstinence requirement for a defendant convicted of methamphetamine possession offenses on this ground. The appellate court cited “empirical evidence show[ing] that there is a nexus between drug use and alcohol consumption” and “well documented [evidence] 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.” (Id. at p. 87.)

In People v. Balestra (1999) 76 Cal.App.4th 57 (Balestra), the appellate court upheld drug and alcohol-related probation conditions for a defendant convicted of physically abusing her mother. (Id. at pp. 60--62, 68.) The victim reported that her daughter had come home smelling of alcohol the evening of the attack. (Id. at p. 61.) The defendant specifically challenged the references to drugs in conditions requiring her to submit to drug and alcohol testing and searches at the behest of her probation officer. (Id. at p. 62.) In partial reliance on Beal, the Court of Appeal in Balestra found that the imposition of drug-related conditions fell within the trial court’s broad discretion to fashion conditions to aid the probation officer in ensuring that the probationer complied with the “fundamental probation condition[] to obey all laws.” (Id. at p. 69.)

Defendant relies primarily on People v. Kiddoo (1990) 225 Cal.App.3d 922 (Kiddoo) (disapproved on other grounds in People v. Welch (1993) 5 Cal.4th 228, 237). In Kiddoo, the Court of Appeal rejected the imposition of alcohol-abstinence conditions on a 33-year-old probationer convicted of possessing methamphetamine, who had used alcohol and illicit drugs since he was 14 years old, and reported being a social drinker and “sporadic” methamphetamine user who had had “ ‘no prior problem.’ “ (Kiddoo, at p. 927.) Nothing in the record indicated that alcohol was related to the crime for which defendant was convicted. (Ibid.) Without any extended analysis, the Kiddoo panel held that the alcohol-abstinence condition was invalid because “[t]here is no factual indication in the record that the proscribed behavior, in defendant’s case, is reasonably related to future criminal behavior.” (Id. at p. 928; see also, People v. Burton (1981) 117 Cal.App.3d 382, 389--391 [striking alcohol-related conditions for probationer convicted of assault, citing lack of evidence of prior convictions for alcohol-related offenses or of any propensity by defendant to become assaultive when using alcohol].)

In our view, Kiddoo is not persuasive. As the appellate panel stated in Beal, “we disagree with the fundamental assumptions in Kiddoo that alcohol and drug abuse are not reasonably related and that alcohol use is unrelated to future criminality where the defendant has a history of substance abuse.” (Beal, supra, 60 Cal.App.4th at p. 87.) Kiddoo‘s approach to the issue came in for further criticism in Balestra: “Kiddoo . . . is simply inconsistent with a proper deference to a trial court’s broad discretion in imposing terms of probation . . . .” (Balestra, supra, 76 Cal.App.4th at p. 69.)

In this case, the record supported an inference that defendant had a drug habit. He was found in possession of methamphetamine, which is a highly addictive drug. He exhibited behaviors at the time of his arrest that are characteristic of drug users. He had committed a type of theft crime that is often used to support a drug habit, and was previously convicted of theft in 1996. Since there is a proven nexus between drug use and alcohol consumption, and between the conjunction of these habits with the commission of other crimes, the trial court did not exceed its discretion under Penal Code section 1203.1 by imposing reasonable drug and alcohol abstention, testing, and search requirements as conditions of defendant’s probation.

B. Use of Dismissed Charges

Defendant contends that the trial court was precluded from using the facts underlying the methamphetamine charge as a basis for probation conditions because that charge had been dismissed as part of his plea agreement, and he had not waived his rights under People v. Harvey (1979) 25 Cal.3d 754 (Harvey).

Harvey held that the facts underlying charges dismissed in a plea bargain cannot generally be used by the trial court to impose a harsher sentence. (Harvey, supra, 25 Cal.3d at pp. 757--758.) However, Harvey recognizes an exception to the general rule: If the dismissed charges are transactionally related to the admitted offenses, the facts pertaining to them may be used for sentencing purposes. (Id. at p. 758.) The Harvey rule and its exception apply to probation conditions. (People v. Beagle (2004) 125 Cal.App.4th 415, 420--421.) A transactional relationship exists between the dismissed and admitted charges if there are facts from which it may at least be inferred that some action of the defendant giving rise to the dismissed count was also involved in the admitted count. (Id. at p. 421.)

By this standard, defendant’s possession of stolen property was transactionally related to his possession of methamphetamine. Based on the facts discussed earlier, the trial court inferred that defendant was a drug user and that he committed the theft offense because of his drug habit. Thus, defendant’s drug use gave rise to both the dismissed drug possession offense and, inferentially, to the admitted offense of receiving stolen property. (See People v. Bradford (1995) 38 Cal.App.4th 1733, 1739 [possession of guns transactionally related to cultivating marijuana since it is common knowledge that narcotics sellers keep weapons available to guard their contraband].) Consideration of the fact that defendant was in possession of methamphetamine was thus proper in fashioning probation conditions, notwithstanding that the possession charge had been dismissed.

C. Constitutional Claims

Defendant contends that the conditions requiring him to (1) submit to chemical testing and (2) stay away from places that primarily sell alcohol violate his constitutionally-based rights to privacy and freedom of association and travel.

The government may impose conditions of probation that qualify or impinge upon constitutional rights when the circumstances require it. (People v. Pointer (1984) 151 Cal.App.3d 1128, 1137.) To pass constitutional muster, an otherwise valid probation condition must be “carefully tailored, ‘ “reasonably related to the compelling state interest in reformation and rehabilitation . . . .” ‘ [Citations.]” (People v. Bauer (1989) 211 Cal.App.3d 937, 942.) A requirement that defendant submit to chemical testing is necessary in order to make the alcohol- and drug-abstention conditions of defendant’s probation effective. (See Balestra, supra, 76 Cal.App.4th at p. 67 [warrantless search requirement serves valid rehabilitative purpose by ensuring compliance with probation conditions].) For the reasons discussed earlier, the abstention conditions are reasonably related to future criminality, and thus the chemical testing requirement serves the state’s compelling interest in reformation and rehabilitation.

The condition precluding defendant from entering bars and liquor stores does not violate his constitutional rights of travel, association, or assembly. It does not prevent defendant from traveling anywhere, from associating with whoever he pleases, or from assembling with others anywhere except in a bar or liquor store. The condition does not banish defendant from his home or limit his right to travel to other neighborhoods. (Cf. People v. Beach (1983) 147 Cal.App.3d 612, 620--623.) Defendant fails to cite any precedent holding such a limited restriction to be an infringement on constitutionally protected interests.

In any event, the condition prohibiting defendant from being in places where alcohol is the chief item of sale would pass muster even if it did incidentally impinge on a constitutional interest of defendant’s. As the People point out, the condition helps give effect to the no-alcohol condition by keeping defendant away from places where there is little or no reason to be present except to purchase or consume alcohol. For the reasons discussed earlier, the no-alcohol condition in turn furthers the goal of preventing defendant from committing future drug and property crimes. Thus, the condition requiring defendant to avoid places principally devoted to the sale of alcohol serves the state’s compelling interest in rehabilitation without unduly infringing any constitutional interest of defendant’s.

D. Drug and Alcohol Assessment

The trial court ordered defendant to undergo a county drug and alcohol assessment as a condition of probation, and reserved jurisdiction to order defendant to participate in a drug court program if warranted by the assessment results. Defendant contends that this condition is unauthorized by law. We agree.

Penal Code section 1000.5 sets statewide guidelines for preguilty plea drug court programs.[4] The statute authorizes the adoption of such programs for defendants charged with violating specified drug statutes who meet other criteria established by section 1000 et seq. of the Penal Code. (Pen. Code, §§ 1000.5, subd. (a) & 1000, subd. (a).)

By its terms, Penal Code section 1000.5 does not authorize the court to order a defendant who has already pleaded guilty to submit to a drug court assessment as a condition of probation, nor to order such defendant into a drug court program. The basic precondition for the application of a drug court program--that the criminal proceedings be suspended without a plea of guilty--never existed in this case. Although defendant might have been considered for the drug court program under section 1000.5 during earlier phases of the prosecution, that opportunity had passed by the time the trial court pronounced the terms of defendant’s probation.

The People contend that a drug and alcohol assessment condition was still proper after defendant’s plea because he could have been allowed to withdraw his guilty pleas if referral to a drug court program was found to be appropriate after the assessment. (See Pen. Code, § 1018.) But this argument rests on sheer speculation that defendant would have withdrawn his plea after the assessment notwithstanding his objection to being forced to undergo it. At the time the condition was imposed, the trial court clearly contemplated that it could order defendant into drug court without regard to any voluntary change of plea on his part. We find no statutory authorization for using probation conditions to obtain that result.

The drug court assessment condition and language reserving jurisdiction to order defendant’s participation in drug court must therefore be stricken from the probation conditions.

III. DISPOSITION

The judgment is modified to delete the probation condition that defendant submit to a drug and alcohol assessment and the language reserving jurisdiction to order defendant to participate in drug court. In all other respects, the judgment is affirmed.

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Margulies, J.

We concur:

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Marchiano, P.J.

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Stein, J.

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

[2] People v. Lent (1975) 15 Cal.3d 481 (Lent).

[3] The requirement that defendant submit to a drug and alcohol assessment to determine his suitability for drug court participation presents different issues, and is analyzed separately post.

[4] Penal Code section 1000.5, entitled “Establishment of Preguilty Plea Drug Court Program; Guidelines,” provides in pertinent part: “The presiding judge of the superior court, or a judge designated by the presiding judge, together with the district attorney and the public defender, may agree in writing to establish and conduct a preguilty plea drug court program pursuant to the provisions of this chapter, wherein criminal proceedings are suspended without a plea of guilty for designated defendants.” (Pen. Code, § 1000.5, subd. (a).)