IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Siskiyou)
September 12, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
HUPERT HENRY FERREIRA, JR., DEFENDANT AND APPELLANT.
(Super. Ct. No. MCYKCRF091806)
The opinion of the court was delivered by: Mauro , J.
P. v. Ferreira
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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 defendant abstain from the use of alcohol.
Defendant argues that the condition of probation requiring him to abstain from the use of alcohol must be struck because it is not reasonably related to his offense, his personal history, or the purposes of probation. We disagree.
The trial court may impose any "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 . . . ." (§ 1203.1, subd. (j).) The trial court has broad discretion in setting the terms and conditions of probation. (People v. Olguin (2008) 45 Cal.4th 375, 379.)
"'[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.' [Citation.] '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.] 'This test is conjunctive -- all three prongs must be satisfied before a reviewing court will invalidate a probation term.'" (In re T.C. (2009) 173 Cal.App.4th 837, 845-846, italics omitted.)
"Whether an alcohol-use condition of probation is an abuse of the trial court's discretion is determined by the particular facts of each case." (People v. Lindsay (1992) 10 Cal.App.4th 1642, 1644.) Several cases have found the condition valid when the defendant has a history of drug abuse and the current offense involves drugs. (People v. Beal (1997) 60 Cal.App.4th 84; People v. Lindsay, supra, 10 Cal.App.4th 1642; People v. Smith (1983) 145 Cal.App.3d 1032; see also People v. Balestra (1999) 76 Cal.App.4th 57 [drug testing upheld for a defendant whose offense involved alcohol]; cf. People v. Burton (1981) 117 Cal.App.3d 382 [no-alcohol condition invalid because offense was not alcohol related and no evidence defendant had been convicted of an alcohol-related offense].) As one court explained: "[E]mpirical 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. [Citation.] Presumably for this very reason, the vast majority of drug treatment programs . . . require abstinence from alcohol use." (People v. Beal, supra, 60 Cal.App.4th at p. 87.)
On the other hand, a no-alcohol probation condition was held invalid in People v. Kiddoo (1990) 225 Cal.App.3d 922, a case involving a conviction for possession of a controlled substance. However, in that case, the defendant reportedly became involved in the sale of drugs to support his gambling habit, maintaining he was a social drinker and used methamphetamine only sporadically. The appellate court struck the condition, concluding there was no evidence that alcohol use by the defendant was "reasonably related to future criminal behavior." (Id. at p. 928.) Kiddoo has been criticized in subsequent cases for its "fundamental assumptions . . . 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." (People v. Beal, supra, 60 Cal.App.4th at p. 87; People v. Balestra, supra, 76 Cal.App.4th at p. 68.)
Unlike the defendant in Kiddoo, in the present matter defendant's history reflects repeated problems with substance abuse. He was convicted of driving under the influence of alcohol, he was ordered in 1998 to abstain from drugs and alcohol and to submit to testing, and he repeatedly violated his probation by testing positive for methamphetamine.
Although the record does not indicate that defendant's current offense was drug or alcohol related, his criminal history evidences a nexus to drug use. In view of the recognized connection between drug use and alcohol consumption, a probation condition proscribing the use of alcohol was reasonably related to future criminality. The trial court did not abuse its broad discretion in requiring defendant to abstain from using alcohol.*fn2
The judgment is affirmed.
We concur: NICHOLSON , Acting P. J. ROBIE , J.