P. v. Hollins















Filed 5/13/13 P. v. Hollins CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT




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THE PEOPLE, Plaintiff and Respondent, v. RHUBEN DREW HOLLINS, Defendant and Appellant.

H037521 (Santa Clara County Super. Ct. No. C1198450)

Defendant
Rhuben Drew Hollins pled guilty to a charge of falsely impersonating another,
thereby exposing the victim to liability, in violation of Penal Code section
529. The trial court placed him on
probation on the condition, among others, that he refrain from using alcohol
and avoid places where alcohol is sold.
On appeal he objects to this condition on the ground that there was no
evidence that consumption of alcohol has played any role in past href="http://www.fearnotlaw.com/">misconduct by him and no reason to
believe it has any bearing on the risk of future criminality. We find this objection sound. In imposing the condition the trial court was
apparently laboring under the false impression that defendant had sustained a
prior conviction for public drunkenness.
In fact there is no evidence in this record that defendant has ever
abused alcohol or any other drug; the only evidence of any use of intoxicants
is two prior convictions based upon the possession of marijuana. We do not find in this history a reasonable
basis to conclude that the inhibition-lowering effects of alcohol would
significantly affect the risk of future criminal conduct by defendant. Accordingly, we will strike the alcohol
prohibition and affirm the judgment as modified.

Background

According
to police reports, defendant was involved in a traffic accident on June 28, 2009.href="#_ftn1" name="_ftnref1" title="">>[1] He identified himself to officers as Edward
Casey Hollins, which is actually the name of his brother. A citation for the incident was issued to the
latter, eventually leading to the suspension of his driver’s license. He reported to police that he had been the victim
of identity theft. The fingerprint on
the citation led officers to defendant.

On January 10, 2011, a felony complaint
was filed charging defendant with false personation exposing the victim to
liability (Pen. Code, § 529). On
September 6, 2011, he pled guilty to the charge, on the understanding that he
would receive a sentence of “90 days on the weekend-work program” and that
after he paid “full restitution” he could “get a section 17,” i.e., the offense
would be designated as a misdemeanor.
(See Pen. Code, § 17.)

Prior to
sentencing the probation department filed a “[w]aived [r]eferral” report
stating that defendant had been convicted of three other offenses on July 15, 2011: two counts of driving with a suspended
license, a misdemeanor (Veh. Code, § 14601.1, subd. (a)), and one count of
possession of less than an ounce of marijuana, an infraction (Health & Saf.
Code, § 11357, subd. (b)).

At the
commencement of the sentencing hearing
on October 14, 2011, a
representative of the probation department proposed to add six conditions of
probation not included in its written report.
Among these were that defendant would “submit to chemical test as
directed by the probation officer,” that he was “not to possess or consume
alcohol or illegal controlled substances,” and that he would “enter and
complete a substance treatment program.”
Defense counsel expressed the belief that the “tests and alcohol
conditions” were based on “a 647(f) conviction” sustained by defendant in
2010. The probation department
representative, however, added, “He does have an 11357(b) misdemeanor in July
as well,” whereupon the court remarked, “So he’s had alcohol and drugs in the
last year.” The court proceeded to place
defendant on three years’ probation subject to conditions including one
transcribed as follows: “Cannot possess,
consume alcohol or illegal drugs or go to places where alcohol is the primary
item of sale or that illegal drugs, that he knows are being used or sold.”

Defendant
brought this timely appeal.

Discussion

Defendant
contends that the trial court’s injunction against using alcohol possesses all
three of the characteristics that will render a probation condition invalid,
i.e., it lacks any relationship to the crime of which defendant was convicted,
it regulates conduct that is not itself criminal, and it “requires or forbids
conduct which is not reasonably related to future criminality
. . . .” (>People v. Lent (1975) 15 Cal.3d 481,
486.) Respondent does not seriously
contest the presence of the first two characteristics, and we are unable to see
how they could be contested. The record
contains no evidence that defendant was using alcohol at the time of the
underlying traffic collision, and the use of alcohol by an adult “is not in
itself criminal.” The only real question
is whether the trial court could find that a prohibition on using alcohol, or
being in places where it is “the primary item of sale,” was “reasonably related
to future criminality.”

“The primary goal of probation is to ensure ‘[t]he
safety of the public . . . through the
enforcement of court-ordered conditions of probation.’ (Pen. Code, § 1202.7.)” (People
v. Carbajal (1995) 10 Cal.4th 1114, 1120.)
“In granting probation, courts have broad discretion to impose conditions to foster rehabilitation
and to protect public safety . . . .” (Id.
at p. 1120.) “The trial court’s
discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose
specified in the statute.” (>Id. at p. 1121.) “As with any exercise of discretion, the
sentencing court violates this standard when its determination is arbitrary or
capricious or ‘ “ ‘exceeds the bounds of reason, all of the
circumstances being considered.’ ”
[Citations.]’ ” (>Id. at p. 1121, quoting >People v. Welch (1993) 5 Cal.4th 228,
233; see People v. Olguin (2008) 45
Cal.4th 375, 379 [“We review conditions of probation for abuse of
discretion.”].)

Probation
conditions restricting alcohol use are inevitably troublesome because of the
paradoxical role alcohol plays in our culture.
It is on the one hand a common, if not ubiquitous, feature of American
social and recreational life. At the
same time, it plays a prominent role in many social ills, including traffic
accidents, child abuse and neglect, domestic violence, and various other forms
of antisocial conduct. Given alcohol’s
Jekyll-and-Hyde character, it is not surprising that probation conditions
restricting its use have received diverse appellate treatments. Defendant relies primarily on >People v. Kiddoo (1990) 225 Cal.App.3d
922 (Kiddoo) (disapproved on other
grounds in People v. Welch, supra, 5
Cal.4th 228, 236-237), where the court invalidated a condition closely
resembling the one before us. The
defendant there had been convicted of possessing methamphetamine for sale. The probation report indicated that he had
used various intoxicants, including alcohol, “since he was 14,” but that he “
‘had no problem’ ” and was a “social drinker.”
(Id. at p. 927.) Nothing in the record indicated that alcohol
“was related to the crime for which defendant was convicted.” (Ibid.) Since alcohol use itself was not criminal,
the validity of the condition turned on whether the condition was “reasonably
related to future criminal activity.” (>Id. at pp. 927-928.) The court found no “indication
. . . that the proscribed behavior, in defendant’s case, is
reasonably related to future criminal behavior.” (Id.
at p. 928.) The condition was therefore
invalid. (Ibid.)

Numerous
cases have distinguished or criticized Kiddoo. In People
v. Beal (1997) 60 Cal.App.4th 84 (Beal),
the defendant challenged a prohibition on alcohol use in her appeal from a
conviction for possession and sale of methamphetamine. The court observed that Kiddoo might be distinguished on the ground that the defendant
there professed to have “ ‘ “no problem” ’ ” with alcohol and to use
other substances only “ ‘sporadically,’ ” whereas the defendant in >Beal admitted she “suffered from
‘chemical dependency.’ ” (>Id. at p. 86, fn. 1, quoting >Kiddoo, supra, 225 Cal.App.3d at p. 927).)
However the court expressed “disagree[ment] with the fundamental
assumptions in Kiddoo that alcohol and drug use are not reasonably related and
that alcohol use is unrelated to future criminality where the defendant has a
history of substance abuse.” (>Id. at p. 87.) Rather, the court stated, “empirical evidence
shows . . . a nexus between drug use and alcohol consumption.” (Ibid.) Citing a 1992 case, which in turn cited a
1967 study, the court continued, “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.” (>Ibid., citing People v. Smith (1983) 145 Cal.App.3d 1032, 1034, citing Pollack,
Drug Use and Narcotic Addiction (1967) University of Southern California
Institute of Psychiatry and Law for the Judiciary, pp. 1-2, 4-5.) Thus, the court concluded, “substance abuse
is reasonably related to the underlying crime and that alcohol use may lead to
future criminality where the defendant has a history of substance abuse and is
convicted of a drug-related offense.” (Ibid.)

In >People v. Balestra (1999) 76 Cal.App.4th
57, the defendant pleaded guilty to elder abuse based on evidence that upon
coming home one evening smelling of alcohol, she “terrorized” her mother for
two hours. (Id. at p. 61.) The probation
officer recommended that probation be conditioned on drug and alcohol testing;
the defendant’s attorney objected only insofar as the condition referred to
drugs. The court relied on >Beal to find Kiddoo “simply inconsistent with a proper deference to a trial
court’s broad discretion in imposing terms of probation, particularly where
those terms are intended to aid the probation officer in ensuring the
probationer is complying with the fundamental probation condition, to obey all
laws.” (Id. at p. 69.)

In >People v. Lindsay (1992) 10 Cal.App.4th
1642, 1644-1645 (Lindsay), the court
found no abuse of discretion in imposing a prohibition on alcohol use following
a conviction for sale of cocaine—an offense the defendant conceded committing
to support his own cocaine habit. It
also appeared that the defendant had used alcohol since the age of 10; he
acknowledged having “ ‘an addictive personality’ ” and that he had been “battling an alcohol
problem” for the preceding five years. (>Id. at p. 1645.) The court observed that alcohol use could
interfere with his abstention from cocaine since it could impair the willpower
needed “[a]s an addict” to refrain from drug use. (Ibid.)

In >People v. Smith (1983) 145 Cal.App.3d
1032, 1034-1035, the defendant was convicted of possessing PCP and was under
its influence at the time of his arrest.
The court held that he could properly be subjected to a no-alcohol
condition despite the absence of any indication that he used alcohol. The court wrote, that “ [d]rinking
. . . , even for the social, controlled drinker . . . , can
lead to a temporary relaxation of judgment, discretion, and
control. . . . [T]he
physical effects of alcohol are not conducive to controlled behavior. [¶]
. . . Given the nexus
between drug use and alcohol consumption, we find no abuse of discretion in the
imposition of the condition of probation relating to alcohol usage.”

Here there
is no evidence that defendant has ever had an alcohol problem, or indeed that
he has ever used alcohol. Nor was the
offense on which he was sentenced shown to have any relation to the use of
alcohol or any other intoxicating substance.
It is also questionable whether the record can be said to demonstrate
“substance abuse.” The only suggestion
of a history involving intoxicants is an allusion at sentencing to two prior
convictions, one described by defense counsel as “a 647(f) conviction in the
year of 2010,” and the other by the prosecutor as “an 11357(b) misdemeanor in
July,” apparently meaning July of 2011.
The record of this matter contains no reference to the 2010 conviction
and no information regarding the 2011 conviction beyond a statement in the
probation department’s “[w]aived [r]eferral” report that “[o]n July 15, 2011,
under case #C1081088, the defendant was convicted of a violation of Section
11357(b) of the Health and Safety Code, a misdemeanor at which time the
sentence was suspended.” Nonetheless the
trial court somehow formed the impression that, as it said at sentencing
“[H]e’s had alcohol and drugs in the last year.”

At defendant’s
request, we have taken judicial notice of records from the superior court files
in the cases alluded to at sentencing.
The files include police reports containing the only available accounts
of the underlying facts. According to
those, the earlier offense occurred on January 17, 2010, when an officer
observed defendant driving a car with no front license plate and with a rear
plate that was, according to dispatch, unassociated with any motor vehicle on
file. The officer stopped the car and,
upon speaking to defendant, noticed the scent of marijuana coming from inside
the vehicle. Defendant told the officer
he had smoked marijuana earlier but it was all gone. A consensual search yielded three pieces of
crumpled paper containing marijuana buds.
Upon their discovery defendant volunteered, “ ‘Look man I’m not a crook,
I just smoke weed. I take care of my
kid. I work at Toys R Us.’ ” Asked how much marijuana he thought there
was, he said “ ‘about an eighth’ ” and that he had paid $40 for it. The officer issued a citation, apparently for
possession of marijuana in violation of Health and Safety Code section 11357,
subdivision (b). Defendant signed it but
then asked for his marijuana back, saying it represented “ ‘half [his]
paycheck.’ ” Spurning this entreaty, the
officer booked the marijuana into evidence.
The marijuana and the “evidence package” in which it was booked had a
combined weight of 28.3 grams. On
June 4, 2010, defendant pled guilty to a violation of Penal Code
section 647, subdivision (f) (§ 647(f)), which makes it a form of
disorderly conduct—a misdemeanor—to be “found in any public place under the
influence of intoxicating liquor . . . [or] drug . . . , in
[such] a condition that [the defendant] is unable to exercise care for his or her
own safety or the safety of others . . . .”

The second
offense alluded to at sentencing occurred on June 10, 2011, when, according to
the police report, an officer stopped defendant for driving without a seat
belt. Upon learning of an outstanding warrant,
the officer arrested defendant. In a
subsequent search of his car, the officer found a baggie containing marijuana
under the driver’s seat. The combined
weight of the marijuana, packaging, and evidence envelope was 23 grams. Defendant pled guilty to a violation of
Health and Safety Code section 11357, subdivision (b), on July 15, 2011.

It thus
appears that the two prior convictions rest on nothing more than defendant’s
having possessed marijuana. Because
there is no full probation report, there was no occasion to assess the extent
of defendant’s use of marijuana or any other intoxicant. The trial court’s apparent rationale for
restricting defendant’s access to alcohol was not that he was a substance abuser
in general but that “he’s had alcohol . . . in the last year.” There is no evidentiary basis for this
statement. The court was apparently under the mistaken impression that
defendant’s 2010 conviction of violating section 647(f) was based on
public drunkenness. But as the police
report clearly indicates, it was based entirely on his possession of
marijuana. Nor does the record of that
conviction suggest a degree of intoxication that might warrant an inference of
a “drug problem.” Although section
647(f) predicates guilt on a level of intoxication interfering with the ability
to exercise care for one’s own or others’ safety, nothing in the police report
so much as hints that defendant was found in such a state. At most the record shows that he had been
smoking marijuana in his car shortly before he was stopped. Had he been noticeably intoxicated—let alone
intoxicated to the point of inability to care for his own or others’ safety—the
officer might have been expected to arrest him for something more serious than
possession of marijuana. (See Veh. Code,
§ 23152, subd. (a) [unlawful to drive a vehicle “under the influence of
any alcoholic beverage” or drug]; >People v. Miller (2012) 202 Cal.App.4th
1450, 1453 [driving under influence of Valium, Vicodin, and possibly
marijuana].) Indeed, the officer might
have been under a duty to do so. (>People v. Lamb (1964) 230 Cal.App.2d 65,
68 [under prior statute making it unlawful to drive while addicted to drugs,
officer was under duty to arrest driver given knowledge of driver’s prior
narcotics use and observation of fresh injection marks on driver’s arms].) The officer’s failure to arrest defendant
thus supports a presumption that
defendant was not, or did not appear, intoxicated; for otherwise the officer
would presumptively have performed his duty and taken defendant into
custody. (See Evid. Code, § 664
[presumption that “official duty has been regularly performed”].) Instead, as the officer reported, he “issued
the suspect a criminal citation and released him at the scene.”

In any
event, this incident provided no support for the supposition, on which the
trial court apparently based the challenged condition, that alcohol was
involved. Nor is there any connection
between the present offense and alcohol use.
The record contains no evidence of an “addictive personality” (>Lindsay, supra, 10 Cal.App.4th at p. 1645) or “ ‘chemical dependency’ ”
(Beal, supra, 60 Cal.App.4th at p. 86, fn. 1), as have been held to
justify alcohol restrictions in the cases cited by respondent. We are not prepared to hold that the mere use
of marijuana, in and of itself, can sustain a prohibition on drinking alcohol,
let alone on being in places where alcohol is sold. On this record, no reasonable connection
appears between such a prohibition and the risk of future criminal conduct by
defendant. We will therefore modify the
judgment by striking the offending condition.

Disposition

The
challenged condition is modified by striking the references to alcohol and to
places where alcohol is sold, so as to provide as follows: “Defendant is prohibited from possessing or
consuming illegal drugs or going to places where he knows illegal drugs are
being used or sold.” As so modified, the
judgment is affirmed.







______________________________________

RUSHING, P.J.







WE CONCUR:







____________________________________

PREMO, J.







____________________________________

ELIA,
J.