Filed 10/30/14 P. v. Mora CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039941
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SSC110174A)
v.
FERNANDO MORA,
Defendant and Appellant.
I. INTRODUCTION
Defendant Fernando Mora appeals after a jury convicted him of discharging a
firearm in a grossly negligent manner (Pen. Code, § 246.3, subd. (a)),1 unlawful firearm
activity (former § 12021, subd. (c)(1)2), criminal contempt/disobedience of a protective
order (§ 166, subd. (c)(1)), and destroying evidence (§ 135). Defendant was placed on
probation for three years.
On appeal, defendant contends the prosecutor committed misconduct by eliciting
testimony that had been excluded during motions in limine, and that trial counsel was
ineffective for failing to press for a ruling when he objected to that testimony. Defendant
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
The crime of unlawful firearm activity (i.e., possession of a firearm by a person
previously convicted of a specified misdemeanor) is now proscribed by section 29805.
(See Stats. 2010, ch. 711 (S.B. 1080), § 6.76, operative Jan. 1, 2012.)
1
also contends that trial counsel was ineffective for failing to object to prosecutorial
misconduct during closing argument. Defendant contends, and the Attorney General
concedes, that the trial court erred by imposing a probation condition prohibiting
defendant from using or possessing alcohol and controlled substances. We will modify
the judgment to strike the challenged probation condition, and we will affirm the
judgment as modified.
II. BACKGROUND
A. The Shooting Incident
Dennis Dunne lived in the area of Metz Road in Soledad. On August 25, 2011, at
about 7:00 p.m., Dunne heard about 10 rounds being rapidly fired. He heard more shots
and ricochets flying, so he called 911. Other people in the area also reported hearing
shots.
Monterey County Sheriff’s deputies responded to a residence on Metz Road.
They observed fresh shell casings at that location and a blue Camaro parked at the rear of
the residence. Deputies set up a perimeter and ordered the people inside the residence to
come out.
Three females exited the residence: Paulina Vasquez, her sister Diana Alapisco,
and 15-year-old Narda P. Alapisco’s five-year-old son was inside the residence. Inside
the master bedroom of the residence, deputies found a Colt brand Super model .38-
caliber semiautomatic handgun. The gun was in an unsecured floor vent. Deputies also
found a .38-caliber magazine containing nine Super P .38-caliber bullets. The magazine
was in an accordion file found in the master bathroom. Outside, near the front porch,
deputies found an empty box of Super P .38-caliber 130-grain full metal jacket bullets.
Deputies found 30 casings in a dirt area between the residence and the front yard
fence. There was a two or three foot tall retaining wall in the area. Deputy Nicholas
Kennedy opined that in that area, there was no safe direction to shoot, since a .38-caliber
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bullet could travel long distances. Deputy Kennedy had previously shot .38-caliber
bullets a distance of 1,800 feet. There were “[a] lot” of homes within 1,800 feet of the
location. Metz Road was a major thoroughfare and was also within 1,800 feet of the
location.
Deputy Kennedy took oral statements from each of the three females and then had
them provide written statements. Vasquez and Narda admitted they had fired the gun
with defendant. They had been shooting at an Arizona ice tea can.
Deputy Kennedy asked Vasquez to call defendant from her cell phone. When
defendant answered, he asked, “[A]re the cops still there?” Deputy Kennedy took the
phone and spoke to defendant, telling him about the evidence and suggesting that
defendant turn himself in. Defendant agreed.
Deputy Kennedy looked at the text messages on Vasquez’s phone. There was a
text at 7:46 p.m. that night that said, “Hey, don’t tell them my name.” Another text
message sent that night stated, “Tell them Jason was there and he left the car there
yesterday. No contact with me. Change the story. . . .” Deputy Kennedy established that
the message had been sent from defendant, who had the same phone number as the
sender.
B. Defendant’s Arrest
Defendant was arrested at a location in Soledad about an hour and a half after the
incident. He was sweaty at the time of his arrest. Defendant was tested for gunshot
residue. A criminalist found “a lot of particles,” indicating defendant had discharged a
firearm, been very close to a firearm that had discharged, or had touched a surface that
had gunshot residue on it.
While in jail following his arrest, defendant spoke to Vasquez by phone. During
the call, defendant admitted knowing that the gun was stolen. He asked Vasquez if she
had told the police that the gun was his. When Vasquez described how the police had
picked up the bullet shells, defendant said, “All of them have my fucking prints.”
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C. Trial Testimony
Narda P. testified that on the night of the incident, defendant was at her residence.
He showed his gun to Narda, Vasquez, and Alapisco, then offered to shoot with them.
They went into the front yard, where defendant, Vasquez, and Narda shot the gun. They
placed a can on a stand that was four or five feet high. The retaining wall and a tree were
behind the can. The retaining wall was higher than the can, but not higher than a person.
They stopped shooting when a neighbor passed by in a car.
Narda testified that defendant did not shoot rapidly, wildly, up in the air, or toward
a moving car. On the night of the incident, she told Deputy Kennedy that defendant had
fired the gun up in the air and that he had been firing it rapidly and wildly.
Vasquez likewise testified that defendant showed her the firearm and that she
participated in shooting at the can in the front yard along with defendant and Narda, until
a neighbor drove by. When defendant was shooting, the gun was “going fast.”
At trial, Vasquez denied that defendant fired the gun up in the air. However, on
the night of the incident, she told Deputy Kennedy that defendant had fired the gun up in
to the air. She had also said that the neighbor’s car would have been in the line of fire if
they had continued shooting.
Defendant did not testify.
D. Restraining Order and Prior Conviction
On December 17, 2009, a criminal protective order was issued. The protected
person was Vasquez; the restrained person was defendant. The restraining order did not
expire until December 17, 2012.
The parties stipulated that defendant had previously been convicted of a
misdemeanor offense within 10 years of the charged offenses.
E. Charges, Verdicts, and Sentencing
Defendant was charged with discharging a firearm in a grossly negligent manner
(count 1; § 246.3, subd. (a)), unlawful firearm activity (count 2; former § 12021,
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subd. (c)(1)), criminal contempt/disobedience of a protective order (count 3; § 166,
subd. (c)(1)), and destroying evidence (count 4; § 135).
At trial, Defendant argued he was not guilty of count 1 because he did not
discharge the firearm in a reckless manner. He “submit[ted] the matter” as to the other
three charges.
At the sentencing hearing held on June 28, 2013, defendant was placed on
probation for three years.
III. DISCUSSION
A. Prosecutorial Misconduct/Ineffective Assistance: Excluded Testimony
Defendant contends the prosecutor committed misconduct by eliciting testimony
from Deputy Kennedy about a photograph depicting defendant holding two assault rifles,
because that testimony had been excluded during motions in limine. Defendant also
contends that trial counsel was ineffective for failing to press for a ruling after he
objected to the testimony.
1. Motion in Limine and Ruling
During the preliminary hearing, Deputy Kennedy explained how he determined
that defendant was the sender of the text messages on Vasquez’s cell phone. He
described how a cell phone user can include a photograph with another person’s contact
information, so that the photograph will “pop up” when the other person calls. Deputy
Kennedy stated that he observed defendant’s photograph in the contact information
associated with the text messages, and that in the photograph defendant “was holding
what appeared to be an assault rifle . . . .”
During motions in limine, defendant moved to exclude “testimony of a photograph
of [defendant] allegedly holding two rifles.” Defendant explained the photograph had
been taken about one month before the charged offenses. He argued the photograph had
“limited relevance” and was “very prejudicial.”
5
The prosecutor clarified that the weapons in the photograph were two assault
rifles. He argued that the photograph was relevant to the restraining order violation and
the fact that defendant had fired the firearm “in a sort of very brash showoffy way.”
The trial court found that the evidence “does create substantial danger of undue
prejudice in that this is the defendant allegedly holding the two assault rifles within a
month of this offense . . . .” The trial court excluded “the fact that there is a photograph
. . . involving [two] firearms.”
2. Trial Proceedings
When Deputy Kennedy testified about looking at the text messages on Vasquez’s
phone, the prosecutor asked if the deputy had been able to identify the sender. When
Deputy Kennedy said, “Yes,” the prosecutor asked, “And how did you do that? What
was the process?” Deputy Kennedy explained that at the top of the messages, the sender
was identified as “ ‘baby.’ ” Deputy Kennedy then looked at the contact photograph. He
“immediately noticed it was a guy with two assault rifles.”
Defendant objected. The prosecutor then asked Deputy Kennedy, “Now, did you
establish [the sender’s identity] via phone number on the text messages?” Deputy
Kennedy stated, “Yes. I was drawn to the contact photo. I went to contacts to see --.”
The prosecutor interrupted, stating, “Let me approach.” The trial court then took the
morning recess.
After the recess, Deputy Kennedy testified that he determined defendant had the
same phone number as the sender of the text messages.
3. Applicable Law
“ ‘A prosecutor has the duty to guard against statements by his [or her] witnesses
containing inadmissible evidence. [Citations.] If the prosecutor believes a witness may
give an inadmissible answer during his [or her] examination, [the prosecutor] must warn
the witness to refrain from making such a statement.’ [Citation.]” (People v. Leonard
(2007) 40 Cal.4th 1370, 1406 (Leonard).) If the prosecutor asks a question that is likely
6
to elicit a reference to inadmissible evidence, the question is misconduct “even if the
prosecutor did not intend to elicit such a reference. [Citations.]” (Id. at p. 1405.)
“ ‘ “A prosecutor’s misconduct violates the Fourteenth Amendment to the United
States Constitution when it ‘infects the trial with such unfairness as to make the
conviction a denial of due process.’ [Citations.] In other words, the misconduct must be
‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’
[Citation.] A prosecutor’s misconduct that does not render a trial fundamentally unfair
nevertheless violates California law if it involves ‘the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.’ [Citations.]” ’ [Citation.]
‘A defendant’s conviction will not be reversed for prosecutorial misconduct, however,
unless it is reasonably probable that a result more favorable to the defendant would have
been reached without the misconduct. [Citation.] Also, a claim of prosecutorial
misconduct is not preserved for appeal if defendant fails to object and seek an admonition
if an objection and jury admonition would have cured the injury. [Citation.]’ [Citation.]”
(People v. Tully (2012) 54 Cal.4th 952, 1009-1010 (Tully).)
“To prevail on a claim of ineffective assistance of counsel, the defendant must
show counsel’s performance fell below a standard of reasonable competence, and that
prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct
appeal, and the record does not show the reason for counsel’s challenged actions or
omissions, the conviction must be affirmed unless there could be no satisfactory
explanation. [Citation.] Even where deficient performance appears, the conviction must
be upheld unless the defendant demonstrates prejudice, i.e., [a reasonable probability]
that ‘ “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’ ” ’ [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543,
569 (Anderson); see also Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.)
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4. Analysis
Defendant contends the prosecutor committed misconduct by failing to admonish
Deputy Kennedy about the motion in limine ruling and by eliciting testimony excluded
by the ruling. (See Leonard, supra, 40 Cal.4th at p. 1406.)
Since Deputy Kennedy testified about the photo at the preliminary hearing, the
prosecutor had “reason to believe” Deputy Kennedy might give the same testimony at
trial, and should have admonished him not to do so. (Leonard, supra, 40 Cal.4th at
p. 1406.) When the prosecutor asked Deputy Kennedy how he had identified the person
who sent Vasquez text messages on the night of the incident, his questions—“And how
did you do that? What was the process?”— were not designed to elicit a reference to the
contact photograph. Although the record does not show what the prosecutor said to
Deputy Kennedy before he testified, had he been admonished by the prosecutor, we
assume Deputy Kennedy would not have testified that the contact photo depicted “a guy
with two assault rifles.” We note that the prosecutor attempted to redirect Deputy
Kennedy after he provided that response. Nevertheless, for purposes of our discussion,
we will assume the prosecutor failed to properly guard against statements containing
inadmissible evidence. (See ibid.)
Although defendant objected below, he did not seek a curative instruction. Thus,
defendant’s claim of prosecutorial misconduct is not preserved for appeal if a “ ‘jury
admonition would have cured the injury. [Citation.]’ [Citation.]” (Tully, supra,
54 Cal.4th at p. 1010.) Defendant contends that the evidence was so prejudicial that the
prosecutor’s misconduct could not have been cured by an admonition, thus excusing
defense counsel’s failure to request an admonition. (See People v. Arias (1996) 13
Cal.4th 92, 159 (Arias).)
Defendant asserts that Deputy Kennedy’s reference to the photograph was
“incurably harmful.” However, defendant does not support his argument by citing any
cases in which an admonition could not have cured the harm caused by prosecutorial
8
miconduct. “A jury will generally be presumed to have followed an admonition to
disregard improper evidence or comments, as ‘[i]t is only in the exceptional case that “the
improper subject matter is of such a character that its effect . . . cannot be removed by the
court’s admonitions.” [Citation.]’ [Citation.]” (People v. Pitts (1990) 223 Cal.App.3d
606, 692 (Pitts); see Arias, supra, 13 Cal.4th at p. 159 [“we find no misconduct so
serious that a curative admonition would have been ineffective”]; People v. Price (1991)
1 Cal.4th 324, 460 [rejecting claim that prosecutors committed misconduct during
argument on the basis that “any prejudice could have been averted by an admonition”].)
Here, Deputy Kennedy testified he saw a contact photograph associated with
defendant’s text messages that depicted “a guy with two assault rifles.” Under the
circumstances, the jury likely inferred that the person in the picture was defendant.
However, the improper testimony was “relatively brief” (see Arias, supra, 13 Cal.4th at
p. 161) and, under the circumstances, not uncurably prejudicial. The evidence at trial
overwhelmingly established (via the statements and testimony of Vasquez and Narda)
that defendant possessed and shot a semiautomatic firearm on the night of the shooting
incident, despite being prohibited from doing so. In light of that evidence, a reference to
defendant’s prior possession of two assault rifles was not “ ‘ “of such a character that its
effect” ’ ” could not have been “ ‘ “removed” ’ ” by an admonition. (Pitts, supra,
223 Cal.App.3d at p. 692 .)
Defendant also claims that trial counsel was ineffective for failing to press for a
ruling on his objection. Defendant contends that if trial counsel had pressed for a ruling,
the trial court could have admonished the jury to disregard the evidence or granted a
mistrial.
Defendant contends there was no tactical reason for counsel’s failure to press for a
ruling. (See Anderson, supra, 25 Cal.4th at p. 569 [ineffective assistance is shown where
there “could be no satisfactory explanation” for counsel’s performance].) However, right
after trial counsel said, “Objection,” the prosecutor attempted to redirect Deputy Kennedy
9
by asking whether he had connected defendant to the text messages “via phone number.”
Trial counsel could have reasonably determined that the prosecutor had essentially cured
the harm and that a request for a ruling on the objection could have served to emphasize
the improper testimony. (See Pitts, supra, 223 Cal.App.3d at p. 692 [“in some situations
an admonition will actually exacerbate the prejudice to the defendant”].)
Moreover, there is no reasonable probability that defendant would have obtained a
more favorable result had trial counsel pressed for a ruling on the objection. (See
Anderson, supra, 25 Cal.4th at p. 569.) It was essentially undisputed that defendant had
possessed a semiautomatic firearm on the night of the shooting incident, despite being
prohibited from doing so, and that he shot it multiple times. The only issue for the jury
was whether defendant had acted with gross negligence. The evidence of gross
negligence was very strong: it included Deputy Kennedy’s opinion that there was no safe
direction to shoot from the location, evidence that the residence was in a populated area
near a busy road, Deputy Kennedy’s testimony that both Narda P. and Vasquez said
defendant had been shooting the gun rapidly and up in the air, and evidence that a
neighbor driving by would have been in the line of fire if defendant had not stopped
shooting. Under the circumstances, even if trial counsel had no reasonable tactical basis
for failing to press for a ruling and admonition, there is no reasonable probability that the
jury would have reached a different result or that the trial court would have declared a
mistrial. (See ibid.)
B. Ineffective Assistance: Prosecutor’s Closing Argument
Defendant contends that trial counsel was ineffective for failing to object to
prosecutorial misconduct—a reference to facts not in evidence and appeals to the jury’s
passions and prejudice—during closing argument.
1. Proceedings Below
In closing argument, the prosecutor asserted that defendant had fired the gun into
the air. He argued, “Anyone with . . . even a basic understanding of gravity knows
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what’s going to happen. It’s coming back down. Every New Year’s Eve you always
hear about some[one] taking a bullet in the head because people fire in the air.”
Later in his closing, the prosecutor argued, “I think it’s fair to say that any rational
person would have not -- would not have wanted to have been in that area of homes on
that day at that time. They wouldn’t have wanted to have been there themselves. They
wouldn’t have wanted to have been driving by on Metz Road. They wouldn’t have
wanted their children outside. Why? Because of the high danger that was ignored by the
defendant in this case.”
The prosecutor further argued, “So I’m going to ask you to . . . just inform this
defendant you can’t do that, you can’t do that. Got to think. You got to think about [the]
consequences. You have got to think down the road. Think of the obvious possibilities.”
2. Applicable Law
As the California Supreme Court explained in People v. Hill (1998) 17 Cal.4th
800, it is misconduct for a prosecutor to argue facts not in evidence “because such
statements ‘tend[ ] to make the prosecutor his [or her] own witness—offering unsworn
testimony not subject to cross-examination. It has been recognized that such testimony,
“although worthless as a matter of law, can be ‘dynamite’ to the jury because of the
special regard the jury has for the prosecutor, thereby effectively circumventing the rules
of evidence.” [Citations.]’ [Citations.] ‘Statements of supposed facts not in evidence . . .
are a highly prejudicial form of misconduct, and a frequent basis for reversal.’ ” (Id. at
p. 828.)
Also, “an appeal to the jury to view the crime through the eyes of the victim is
misconduct at the guilt phase of trial; an appeal for sympathy for the victim is out of
place during an objective determination of guilt. [Citations.]” (People v. Stansbury
(1993) 4 Cal.4th 1017, 1057, reversed on other grounds by Stansbury v. California
(1994) 511 U.S. 318.)
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3. Analysis
Defendant first contends trial counsel was ineffective for failing to object to the
prosecutor’s argument about people firing guns in the air on New Year’s Eve. He
contends there was no evidence introduced about that fact and that it is not a matter of
common knowledge that, every year on New Year’s Eve, bullets hit people in the head
because people fire guns into the air.
A similar remark was found not to be misconduct in People v. Franco (1994)
24 Cal.App.4th 1528. In that case, during jury voir dire, the prosecutor stated, “ ‘I think
we can all pretty much admit that there is a tremendous gang problem in Los Angeles
County, there is a lot of violence. [¶] There is not a day that goes by that you don’t open
up the Metro Section and read about some senseless drive-by shooting.’ ” (Id. at
p. 1535.) The court found that this “stated what is common knowledge.” (Ibid.) Here,
trial counsel could reasonably have determined that the prosecutor’s remarks about New
Year’s Eve shootings likewise were within the jury’s common knowledge and were not
facts outside the record, such that an objection would not have been successful.
Defendant next contends that the prosecutor’s other remarks—that a rational
person would not have wanted to be in the area at the time of the shooting and that
defendant needed to be told to think about the consequences of his actions—were
improper appeals to the jury’s passions and prejudices.
Defendant cites to People v. Pensinger (1991) 52 Cal.3d 1210, in which the
defendant was charged with murdering, kidnapping, and sexually assaulting a five-
month-old child. During closing argument, the prosecutor stated, “ ‘Suppose instead of
being [the mother’s] kid this had happened to one of your children.’ ” (Id. at p. 1250.)
The court found that this was misconduct. (Ibid.)
Pensinger is distinguishable. Here, defendant’s crime had no actual victim.
Defendant was charged with discharging a firearm with gross negligence. The prosecutor
did not commit misconduct by arguing that defendant acted with gross negligence
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because there were people in the neighborhood who would not have wanted to have been
hit by bullets, or by arguing that defendant should have known that one of the possible
consequences of his actions was hitting someone with a bullet.
Even assuming that the prosecutor’s remarks were improper, the jury was
instructed that the attorney’s statements were not evidence and that it should decide the
case based only on the evidence presented at trial.3 “In the absence of evidence to the
contrary, we presume the jury understood and followed the court’s instructions” and did
not base its verdicts on any statement by the prosecutor. (People v. Williams (2009)
170 Cal.App.4th 587, 635.) Moreover, as explained above, the only issue for the jury
was whether defendant had acted with gross negligence, and that evidence was very
strong. Thus, even assuming that trial counsel should have objected to the prosecutor’s
challenged remarks, there is no reasonable probability that defendant would have
obtained a more favorable result; trial counsel was not ineffective. (See Anderson, supra,
25 Cal.4th at p. 569.)
C. Probation Condition
Defendant contends, and the Attorney General concedes, that the trial court erred
by imposing a probation condition prohibiting defendant from using or possessing
alcohol.
1. Proceedings Below
The probation report reflected that defendant had a low risk for substance abuse
issues, noting that defendant said he had “experimented with alcohol and marijuana” at
3
At the beginning of trial, the jury was instructed, “You must decide what the
facts are in this case. You must use only the evidence that is presented in the courtroom.
Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence and
anything else I tell you to consider as evidence. [¶] . . . [¶] Nothing that the attorneys
say is evidence.” (See CALCRIM No. 104.) At the end of trial, the jury was instructed,
“You must decide what the facts are. It is up to all of you, and you alone, to decide what
happened, based only on the evidence that has been presented to you in this trial.” (See
CALCRIM No. 200.)
13
age 21 and that defendant denied using or experimenting with any other illicit substances.
Nevertheless, the probation report recommended imposition of a probation condition that
provided in part: “Do not knowingly use or possess alcohol, intoxicants, or controlled
substances without the prescription of a physician . . . .”
At the sentencing hearing, defendant objected to the above probation condition,
arguing, “There’s no evidence of any alcohol involvement in this matter. It’s not related,
there is no nexus.” The trial court imposed the condition, stating: “Do not knowingly
use or possess alcohol, intoxicants, or controlled substances without the prescription of a
physician.”
2. Applicable Law
“We review conditions of probation for abuse of discretion. [Citations.]
Generally, ‘[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.]’ [Citation.] This test is conjunctive—all
three prongs must be satisfied before a reviewing court will invalidate a probation term.
[Citations.] 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. [Citation.]” (People v. Olguin (2008) 45 Cal.4th 375, 379-380.)
3. Analysis
Defendant relies on People v. Kiddoo (1990) 225 Cal.App.3d 922 (Kiddoo)
(disapproved on other grounds in People v. Welch (1993) 5 Cal.4th 228, 236-237), in
which the court struck a probation condition that prohibited a narcotics offender from
possessing or consuming alcohol or frequenting places where alcohol was sold. In
Kiddoo, the probation report indicated that the defendant had used narcotics and alcohol
in the past, but that he “had ‘no prior problem,’ that he was a social drinker, and used
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methamphetamine sporadically.” (Id. at p. 927.) The probation report also indicated that
the defendant had two prior convictions, for unlawful taking or driving of a motor vehicle
and for possession of marijuana. Both of these prior convictions had occurred more than
10 years before the offense at issue. The appellate court found that there was nothing in
the record indicating that alcohol was related to the defendant’s narcotic offense, and it
found that the condition was not reasonably related to future criminality. (Id. at p. 927-
928.) Thus, the court found the alcohol-related probation condition was invalid. (Id. at p.
928.)
Cases have distinguished or criticized 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.” (People v. Beal
(1997) 60 Cal.App.4th 84, 87; see also People v. Balestra (1999) 76 Cal.App.4th 57, 69
[rejecting challenge to drug testing condition where there was evidence defendant was
under the influence of alcohol at the time of the offense]; People v. Lindsay (1992)
10 Cal.App.4th 1642, 1644-1645 [rejecting challenge to alcohol-related probation
condition where defendant sold cocaine and admitted he had an alcohol problem]; People
v. Smith (1983) 145 Cal.App.3d 1032, 1034-1035 [rejecting challenge to alcohol-related
probation condition where the defendant was convicted of possessing PCP and was under
its influence at the time of his arrest due to “the nexus between drug use and alcohol
consumption”].) However, in this case, defendant was not convicted of a drug offense,
there is no evidence he used drugs, and he had no history of substance abuse.
The Attorney General concedes the challenged condition should be stricken, citing
People v. Burton (1981) 117 Cal.App.3d 382. In that case, the defendant was convicted
of assault with a deadly weapon and by means of force likely to produce great bodily
injury after an “on-the-job dispute with a coworker.” (Id. at p. 389.) The trial court
imposed a probation condition that provided, “ ‘You are not to indulge in the use of
intoxicants or visit any place where intoxicants are sold as the primary income of the
15
business . . . .’ ” (Ibid.) The court struck the condition, explaining, “[T]he record is
completely devoid of any evidence that appellant had consumed alcoholic beverage prior
to, during, or after the assault for which he was convicted. . . . [¶] . . . [B]oth consuming
and purchasing alcoholic beverages are legitimate activities for adult persons . . . . [¶]
. . . [T]here is no evidence in the record that appellant had ever been convicted of an
alcohol-related offense and/or that he had manifested a propensity to become assaultive
while drinking.” (Id. at p. 390.)
In this case, the probation condition is not reasonably related to the crime of which
defendant was convicted or to future criminality. He has no alcohol- or drug- related past
offenses. He was not drinking or under the influence of alcohol before or during the
offense. The only evidence of appellant’s alcohol use in the record is defendant’s
statement to the probation officer that he “experimented with alcohol and marijuana”
when he was 21 years old. Defendant denied using or experimenting with any other
illicit substances. Thus, the probation condition is invalid to the extent it prohibits
defendant from using or possessing alcohol. We will modify the condition to eliminate
the reference to “alcohol[ and] intoxicants.”
IV. DISPOSITION
The probation condition providing, “Do not knowingly use or possess any alcohol,
intoxicants or controlled substances without the prescription of a physician” is modified
to read as follows: “Do not knowingly use or possess any controlled substances without
the prescription of a physician.” As modified, the judgment is affirmed.
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___________________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
MIHARA, J.