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The People v. Hupert Henry Ferreira

September 12, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
HUPERT HENRY FERREIRA, JR., DEFENDANT AND APPELLANT.



(Super. Ct. No. MCYKCRF091806)

The opinion of the court was delivered by: Mauro , J.

P. v. Ferreira

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Hupert Henry Ferreira, Jr., pleaded guilty to failing to update his annual sex offender registration. He was placed on probation with the condition that he abstain from the use of alcohol. Defendant contends on appeal that the trial court erred in requiring abstention from alcohol as a probation condition.

Given defendant's prior criminal history, including a conviction for driving under the influence of alcohol and repeated probation violations for substance abuse, we conclude the probation condition was reasonably related to future criminality. The trial court did not abuse its broad discretion in imposing the probation condition that defendant abstain from using alcohol. We will affirm the judgment.

BACKGROUND

Defendant is 36 years old. When he was 20, he was convicted of driving under the influence of alcohol. Three years later, he was convicted of sexual battery (Pen. Code, § 243.4, subd. (a))*fn1 and placed on probation. He was required to register annually as a sex offender. In addition, he was required to abstain from alcohol and illegal drugs and submit to alcohol and drug testing. After repeated probation violations, he was committed to state prison.

In 2002, defendant was convicted of failing to register as a sex offender. He was also returned to prison four times between 2003 and 2006 for parole violations after testing positive for methamphetamine. Defendant went through a treatment program in prison and lived in a transition house after his release.

Defendant has not registered annually as a sex offender since 2006. During his probation interview, he said he had moved out of state and "should have been more committed to complying with registration requirements." But he asserted that since moving he had "turned his life around." He said he had not used methamphetamine in several years.

Defendant pleaded guilty to failing to update his annual sex offender registration. (§ 290.012, subd. (a).) In exchange, it was agreed that the remaining counts and an enhancement would be dismissed, execution of a three-year prison sentence would be suspended, and defendant would be granted probation. Defendant was sentenced in accordance with the plea agreement.

At the sentencing hearing, defendant's trial attorney objected to the probation officer's recommendation that defendant be required to abstain from the use or possession of alcohol as a condition of probation, claiming defendant had been "sober for quite some time" and there was no basis for imposing the condition aside from his driving under the influence conviction 15 years earlier.

The trial court agreed that a ban on possession of alcohol would be overbroad, but imposed as a condition of probation that ...


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