P. v. Caylao
Filed 6/28/12 P. v. Caylao CA6
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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOE CAYLAO,
Defendant and
Appellant.
H037354
(Santa Clara
County
Super. Ct.
No. C1102791)
Joe Caylao
was convicted by plea of one count of grand
theft in violation of Penal Code sections 484-487, subdivision (a).
and ordered to serve 300 days in jail.
The court imposed various terms of probation, among them that he refrain
from possessing or consuming alcohol or knowingly being in any place where
alcohol is the primary item of sale.
Caylao challenges this probation term on appeal, contending that it was
not reasonably related to the crime of which he was convicted. On this record, which reveals that Caylao has
a criminal history involving drug related
charges, we reject the challenge and affirm the judgment.
STATEMENT
OF THE CASE
I. Factual
Background
title="">[2]
On January 14, 2011, Caylao had been
staying for three of four days in the family home of Darrell Matos, whom he had
known for quite some time from church.
Matos had offered to rent Caylao a room in the house for about $400 per
month as Caylao needed a place to stay.
That evening, Caylao borrowed Matos’s truck, ostensibly to retrieve some
money with which to pay rent. When Matos
got into the truck the next day, he found a syringe and concluded that Caylao
had a drug problem. Because of this, Matos
asked him to leave the house, saying, “we both know why,” referring to the
syringe. Matos encouraged Caylao to get
help for his drug problem. Without
admitting to drug use, Caylao left but asked Matos if he could return later to
pick up his belongings, to which Matos agreed.
The
following week, Caylao phoned Matos and made arrangements to retrieve his
things. Matos asked his sister-in-law to
come to his house while he was at work to let Caylao in. She did so, watching Caylao remove a couple
of boxes and assisting him in moving a couch.
After Caylao took his belongings, Matos’s sister-in-law locked up the
house and left, observing Caylao lingering in front of the house as she drove
away. The next morning, Matos’s wife
discovered that her laptop, which she had left on the kitchen table where it
remained when Matos’s sister-in-law left the house, was missing. Matos’s wife also discovered that her cell
phone was missing. She called Matos,
who, in turn, called Caylao and accused him of stealing these things. Caylao denied having stolen anything and
insisted that Matos would owe him an apology, but still offered that he may
have taken the cell phone by accident.
When Matos got home later that day, he confirmed the items missing,
which included a pair of his shoes, and he discovered that the screen on the
bathroom window had been damaged.
Matos
obtained a printout of telephone calls made from his wife’s stolen cell phone,
which revealed a long distance call to Modesto,
and he contacted police. San Jose Police
Officer Jolliff investigated the case.
As part of his investigation, he called the Modesto
telephone number listed on the printout and spoke with a man named Abdo Obaid,
who told the officer that he had bought a laptop from Caylao, for which he had
paid $100. Obaid also said that he knew
Caylao from numerous transactions in the past.
Officer Jolliff directed Matos to Obaid in Modesto,
where Matos went and retrieved the laptop.
II. Procedural
Background
After being
bound over for trial, Caylao was charged by amended information filed July 20,
2011, with first degree burglary in violation of sections 459-460, subdivision
(a) (count 1) and grand theft in violation of sections 484-487, subdivision (a)
(count 2). That day, Caylao waived his
rights and pleaded no contest to count 2 on the conditions that count 1 be
dismissed and that he serve no more than 300 days in jail.
At
sentencing on August 26, 2011,
the court suspended sentence and placed Caylao on probation. He was ordered to serve 300 days in the
county jail, with credit for time served.
The waived referral report generally recommended that because of
Caylao’s “extensive criminal history involving drug-related charges,” that
conditions of probation include chemical testing and substance abuse
counseling, and it specifically recommended conditions relating to the
prohibited use of illegal drugs and the requirement that Caylao enter into a
substance abuse treatment program. A
second set of recommendations included those same conditions along with an
additional condition that defendant “not possess or consume alcohol or illegal
drugs, or knowingly be anywhere illegal drugs are used or sold or alcohol is
the major item of sale.”
Caylao’s
counsel objected to the proposed specific conditions of probation concerning
substance abuse and chemical testing (numbers 6, 8, & 9 of the recommended
conditions), including the one that precluded his use of both alcohol and
drugs, as “not being related to the facts of the case” or the criminal
allegations. The court responded that it
had seen the police report, which had referenced that defendant was asked to
leave Matos’s house because of his heroin use.
Caylao’s counsel replied that this was not “enough to impose drug
related probation conditions in a theft case.”
The prosecutor reiterated what the court had referenced about heroin in
the police report and went on to suggest that the report included information
to the effect that before asking Caylao to leave, Matos “confirmed [his]
history of drug use and substance abuse problems with friends and family” and that
while the prosecutor could not say for certain what had motivated this
particular crime, substance abuse problems often lead to theft. The court gave its view that “there’s enough
of a nexus” with Matos’s discovery of the syringe and imposed the recommended
substance abuse and alcohol related conditions of probation, along with other
standard terms.
Caylao
timely appealed, challenging the sentence or matters occurring after the plea
but not affecting its validity. (Cal.
Rules of Court, rule 8.304(b).)
DISCUSSION
I. The
Court Acted Within Its Discretion to Impose the Alcohol Condition
On appeal,
Caylao challenges the probation condition relating to his use of alcohol or
knowingly being in a place where that is the major item of sale.
because it is unrelated to the crime of which he was convicted. Anticipating respondent’s claim that the
issue is forfeited on appeal, he further contends that if this is so, his
counsel provided ineffective assistance by not specifically objecting below to
the alcohol condition, separate and apart from the general drug conditions to
which counsel did collectively object as being unrelated to the crime.
Preliminarily,
we readily dispense with respondent’s claim that Caylao’s objection to the
alcohol-related condition of probation is forfeited on appeal as not having
been raised below. Defense counsel
referred by number to the specific conditions to which objection was raised,
including the single condition that together referenced drug and alcohol use
and places where those substances are sold.
While counsel generally referenced the offending conditions as relating
to substance abuse, it was quite clear to what she was referring and on what
specific basis. Moreover, alcohol is a
substance that can be abused and falls under the rubric of “substance abuse”
even though it is not an illegal drug per se.
On this record, and because the manner in which the alcohol-related condition
was combined with the condition related to illegal drug use, Caylao’s objection
to the alcohol-related condition only has been sufficiently preserved for
appeal by his general objection to probation conditions relating to substance
abuse.
Under
section 1203.1, subdivision (j), a court granting probation may impose
“reasonable conditions, 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 . . . .” The “primary goal
of probation is to ensure ‘[t]he safety of the public … through the enforcement
of court-ordered conditions of probation.’
[Citation.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (
discretion to impose conditions to foster rehabilitation and to protect public
safety pursuant to . . . section 1203.1.
[Citations.]” (
of discretion. [Citations.]” (People
v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) As with any exercise of discretion, “the
sentencing court violates this standard when its determination is arbitrary,
capricious or ‘ “ ‘exceeds the bounds of reason, all of the circumstances being
considered.’ ” [Citations.]’ [Citation.]”
(Carbajal, supra, 10 Cal.4th
at p. 1121.)
“The trial
court’s discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose
specified in the statute. In addition,
we have interpreted . . . section 1203.1 to require that probation conditions
which regulate conduct ‘not itself criminal’ be ‘reasonably related to the
crime of which the defendant was convicted or to future criminality.’ ” (Carbajal,
supra, 10 Cal.4th at p. 1121, quoting
People v. Lent (1975) 15 Cal.3d 481,
486 (Lent).) Accordingly, a probation condition “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.]” (Lent,
supra, 15 Cal.3d at p. 486.) “This
test is conjunctive—all three prongs must be satisfied before a reviewing court
will invalidate a probation term. . . .
As such, even if a condition of probation has no relationship to the
crime of which a defendant was convicted and involves conduct that is not
itself criminal, the condition is valid as long as the condition is reasonably
related to preventing future criminality.”
(Olguin, supra, 45 Cal.4th at
pp. 379-380.)
Here, the
record contains no information that alcohol was involved in the grand theft
offense, and alcohol possession and use are legal for someone, like defendant,
who is over 21 years of age. The only
issue, therefore, is whether the no-alcohol condition forbids conduct that is
not reasonably related to future criminality.
This analysis is highly fact specific.
(People v. Lindsey (1992) 10
Cal.App.4th 1642, 1644 (Lindsey).)
Some courts
have found alcohol-related conditions reasonable where the record reveals a
factual basis to find that the defendant abused alcohol. For example, in Lindsey, the defendant had an “ ‘alcohol problem’ ” and an “
‘addictive personality’ ” and his crime involved selling drugs to support his
addiction. (Lindsey, supra, 10 Cal.App.4th at pp. 1644-1645.) The addiction to drugs, combined with
defendant’s alcohol problem, created a nexus between the potentially impaired
judgment resulting from alcohol use and an increase in the potential for a drug
use relapse in the future. (
reasonably related to future criminality.
Similarly, in People v. Balestra
(1999) 76 Cal.App.4th 57 (Balestra),
the defendant smelled of alcohol when she committed elder abuse on her
mother. The trial court commented at the
plea hearing that the defendant “ ‘need[ed] treatment for what everybody
appears to agree is an alcohol problem . . . .’ ” (Id.
at p. 62.)
Other
courts have imposed a no-alcohol condition even when the defendant had no
history of alcohol abuse. In
(Smith), the court concluded that a
no-alcohol condition was reasonably related to the defendant’s conviction for
PCP possession and to his future criminality because he had an “extensive
involvement with drugs,” was “emotionally unstable,” and had “a poorly
integrated personality.” (
use and alcohol consumption,” and noted that “the physical effects of alcohol
are not conducive to controlled behavior.”
(Id. at p. 1035.) Smith
upheld conditions of probation forbidding alcohol use and presence at
alcohol-sale premises under the circumstances, concluding these conditions were
“reasonably related to . . . future criminality.” (Ibid.)
By
contrast, in People v. Kiddoo (1990)
225 Cal.App.3d 922 (Kiddoo),
disapproved on another point in People v.
Welch (1993) 5 Cal.4th 228, 237, on which defendant here relies, the court
of appeal invalidated a condition prohibiting the defendant from possessing or
consuming alcohol following his guilty plea to possession of
methamphetamine. The defendant had been
selling drugs to support a gambling habit; he had been using drugs and alcohol
since he was 14, but he considered himself only a “social drinker.” (Kiddoo,
at p. 927.) Because Kiddoo’s past drug
use had involved substances other than alcohol, the court believed the alcohol
conditions were not reasonably related to criminality. (Id.
at p. 928.) The court accordingly found
no facts to support the conclusion that the prohibited conduct was reasonably
related to future criminality, and it struck the condition.
In
(Beal), on the other hand, the court
of appeal disagreed with the implicit assumption in Kiddoo that alcohol use and drug abuse are not reasonably related. (Id.
at p. 87.) In Beal, the defendant pleaded guilty to possession for sale and
simple possession of methamphetamine.
Like the defendant in Kiddoo,
she described herself as a “social drinker,” but she did not view alcohol use
to be a problem for her. (
from chemical dependency, having used methamphetamine and other drugs for
several years. The Beal court expressed the view that “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.
[Citations.] Presumably for this
very reason, the vast majority of drug treatment programs, including the one
Beal participates in as a condition of her probation, require abstinence from
alcohol use.” (Ibid.) The court concluded
that the alcohol condition was reasonable because “alcohol use may lead to
future criminality where the defendant has a history of substance abuse and is
convicted of a drug-related offense.” (
In this case, there is no evidence that Caylao
had any history of alcohol abuse or that he even consumed alcohol. And his crime did not appear to involve
alcohol consumption. Nevertheless, as in
Beal and Smith, given his apparent history of drug charges and the presence
of the syringe, defendant appears to have a drug problem. Giving “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” (
68), we cannot say that the no-alcohol condition was unreasonable in the
circumstances presented.
We
acknowledge, as defendant points out, that the offense of which he was
convicted was not drug-related and in this, the case is distinct from
that because the record contains no evidence of a history of alcohol addiction
or abuse, the case is distinct from Lindsey
or Balestra, in which the defendants
apparently had a history of alcohol problems.
But based on defendant’s “extensive criminal history involving
drug-related charges” as noted in the waived referral report, the presence of
the syringe in the factual backdrop of the current conviction, and the
recognized connection between drug use and alcohol consumption, there is a
nexus to drug use here.
We
therefore conclude that a probation condition proscribing the use of alcohol
and the defendant’s knowing presence in places where alcohol is the major item
of sale is reasonably related to future criminality. The trial court accordingly did not abuse its
discretion in imposing the challenged probation condition.
DISPOSITION
The judgment is
affirmed.
Duffy,
J.
WE
CONCUR:
Rushing, P.J.
Premo, J.
People
v. Caylao
No.
H037354
name="_ftn1" title=""> [1]
Further unspecified statutory references are to the Penal Code.
name="_ftn2" title=""> [2]
We take the facts of the crime from the transcript of the preliminary hearing.
