Filed 9/21/20 P. v. Arce CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A158967
v.
STEPHANIE ARCE, (Marin County
Super. Ct. No. SC208641A)
Defendant and Appellant.
Defendant and appellant Stephanie Arce appeals from an
order modifying the terms and conditions of her probation to add
a drug testing condition. She contends the condition must be
stricken because no changed circumstances justify the
modification. We agree and reverse the order.
I. BACKGROUND
While working as a medical assistant at a neurology clinic,
appellant stole prescription pads, forged the signature of the
doctor she worked for, and wrote oxycodone prescriptions for an
“Angela Garcia.” She pled guilty to forging and issuing a
prescription. (Health & Saf. Code, § 11368.)
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A sentencing hearing was held October 17, 2019, and
appellant was placed on felony probation for three years subject
to various terms and conditions. The conditions included a
search term, a requirement that she not consume any
nonprescribed substances without the court’s permission, a
requirement that she participate in any treatment or therapy
ordered by the probation department, and a requirement that she
obey all laws.
On November 14, 2019, a hearing was held on a request by
the probation department to modify probation to include a drug
testing condition. Defense counsel objected and noted that
although this case involved the potential possession of
prescription medications, there was no showing appellant ever
had a drug problem or that the use of intoxicants was what led to
her criminality. The probation department responded that the
lack of a drug testing condition “was just an overlook at the time
of sentencing.” The court noted that appellant had tested clean
for 11 months on a previous grant of probation and that she did
not report any significant drug or alcohol history. Although
indicating that the defense objection was “very reasonable,” it
found a basis for the drug testing condition and ordered her
probation modified to include it.
II. DISCUSSION
“ ‘[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.’ ” (In re Ricardo P. (2019) 7
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Cal.5th 1113, 1118, quoting People v. Lent (1975) 15 Cal.3d 481,
486.) Although appellant argues that a drug testing condition
was not reasonably related to the crime of which she was
convicted or to future criminality because her personal history
does not include a drug problem, we assume without deciding
that given the nature of the offense, the trial court could have
imposed drug testing as a condition of appellant’s original
probation. However, due to inadvertence, a drug testing
condition was not imposed. This precipitated the probation
department’s request to modify the terms and conditions of
appellant’s probation to add a drug testing condition.
“A court may revoke or modify a term of probation at any
time before the expiration of that term.” (People v. Cookson
(1991) 54 Cal.3d 1091, 1095 (Cookson), citing Pen. Code,
§ 1203.3.) But “a change in circumstances is required before a
court has jurisdiction to extend or otherwise modify probation.”
(Cookson, at p. 1095.) “ ‘An order modifying the terms of
probation based on the same facts as the original order granting
probation is in excess of the jurisdiction of the court, for the
reason that there is no factual basis to support it.’ ” (Ibid. at
p. 1095; see also People v. Medeiros (1994) 25 Cal.App.4th 1260,
1263.)
The only change in circumstances between appellant’s
sentencing hearing and the probation department’s request for
modification was the discovery that the department had failed to
request, and the trial court had failed to impose, a drug testing
condition. The department did not assert that appellant had
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violated any originally imposed term or condition, nor did it offer
any other new fact showing a change in circumstances. It simply
claimed a drug testing condition would be helpful in enforcing the
original terms and conditions.
The People contend the trial court’s belated awareness that
it failed to impose a drug testing condition at the time of
sentencing constituted a change in circumstances, citing Cookson,
supra, 54 Cal.3d 1091. In Cookson, the trial court placed the
defendant on three years’ probation on the condition that he pay
restitution as determined by the probation department. (Id. at
p. 1093.) The department determined total restitution to be
$12,000 and ordered the defendant to make monthly payments
over the course of his probation, but although the defendant
made all these payments, at the end of three years he had paid
only part of the restitution owing because the department had
miscalculated the payment schedule. (Ibid. & fn. 3.)
The trial court granted the department’s motion to extend
probation for two years to secure the defendant’s full payment of
restitution. (Cookson, supra, 54 Cal.3d at p. 1094.) The Supreme
Court upheld the modification on the ground the lower courts had
“correctly determined that a change in circumstance could be
found in a fact ‘not available at the time of the original order,’
namely, ‘that setting the pay schedule consistent with
defendant’s ability to pay had resulted in defendant’s inability to
pay full restitution as contemplated within the original period of
probation.’ ” (Id. at p. 1095.) It was not the court’s discovery that
authorities had miscalculated the defendant’s restitution
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payment schedule that constituted the change of circumstances.
The change was the miscalculation itself and the defendant’s
inability to make full restitution before the end of the
probationary period. Those circumstances arose after the court
had granted probation and were facts not available when
probation was first granted.
Here, respondent does not argue the drug testing condition
was mandatory or that its omission at the time the court
originally granted probation resulted in an unauthorized
sentence. (People v. Cates (2009) 170 Cal.App.4th 545, 549
[failure to impose mandatory probation condition was
unauthorized sentence that can be corrected at any time].) There
was no change in circumstances or failure to comply with the
terms originally imposed. On the record before us, the trial court
erred in modifying the terms and conditions of appellant’s
probation to include a drug testing condition.
We have considered whether the imposition of the drug
testing condition can be affirmed as a nunc pro tunc order. It
cannot, because “a nunc pro tunc order is generally limited to
correcting clerical errors” and “cannot declare that something
was done which was not done.” (People v. Borja (2002) 95
Cal.App.4th 481, 487 [jail time imposed as condition of probation
cannot be reduced nunc pro tunc from 365 days to 364 days].)
“ ‘The distinction between clerical error and judicial error is
‘whether the error was made in rendering the judgment, or in
recording the judgment rendered.” ’ ” (People v. Kim (2012) 212
Cal.App.4th 117, 124.) This is not a situation where, for example,
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the court imposed the drug testing condition, but the clerk forgot
to write it down.
We note that one of the original terms of probation required
appellant to participate in any treatment or therapy ordered by
the probation department. Should the probation department
order participation in a program that requires drug testing as a
component, nothing in our opinion should be construed to limit
her participation in that program or in the drug testing.
III. DISPOSITION
The order modifying the terms and conditions of appellant’s
probation is reversed and the drug testing condition is ordered
stricken.
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NEEDHAM, J.
We concur.
JONES, P.J.
SIMONS, J.
People v. Arce / A158967
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