People v. Malago

Filed 2/27/17

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D069858

Plaintiff and Respondent,

v. (Super. Ct. No. SCS281872 )

FELIPE MALAGO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Garry G.

Haehnle, Judge. Affirmed.

Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant

and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and

Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

Felipe Malago appeals certain mandatory supervision conditions related to alcohol

consumption, alcohol testing, alcohol treatment, and substance abuse treatment. To this

end, Malago contends the superior court abused its discretion when it did not rule on his
objections to these conditions, but instead, deferred any rulings to the mandatory

supervision judge. He also argues that the conditions are unreasonable and invalid

because they are unrelated to Malago's current offense or future criminality.

We agree that the superior court erred in failing to rule on Malago's objections to

the mandatory supervision conditions. However, we conclude that Malago suffered no

prejudice as the conditions are reasonable and valid. Thus, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 5, 2016, Malago pled guilty to one count of importing a controlled

substance (Health & Saf. Code, § 11352, subd. (a)). On February 18, 2016, the superior

court sentenced Malago to a five-year split sentence composed of 30 months in county

jail and 30 months of mandatory supervision. As part of the terms of mandatory

supervision, the court ordered Malago: Not to knowingly use or possess alcohol if

directed by the probation officer (condition 5b); to attend self-help meetings if directed

by the probation officer (condition 5c); to submit to any chemical test of blood, breath, or

urine to determine blood alcohol content (condition 5f); to surrender his driver's license

to the court for forwarding to the DMV (condition 5g); not to drive a motor vehicle

unless licensed and insured (condition 5i); to participate in, comply with, and bear all

costs associated with a continuous alcohol monitoring device if directed by probation

(condition 5j); and to complete a program of residential drug treatment and aftercare if

directed by probation officer (condition 6a).1

1 In the respondent's brief, the People stated that Malago challenged condition 6c
below. However, Malago's counsel clearly stated that she believed 6c was appropriate,
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 Malago's counsel objected to all the alcohol related conditions (referring to them

as "Condition 5"), and condition 6a, contending there was no nexus between the

conditions and the crime. The court noted the objections but did not rule on them,

deferring any ruling on the objections to the "mandatory supervision judge." The

challenged conditions were imposed in the order granting mandatory supervision.

Malago timely appealed.

DISCUSSION

As a threshold matter, the People insist that Malago has forfeited his challenge to

the mandatory supervision conditions in the instant matter. Although they acknowledge

that Malago objected to these conditions below, the People claim that Malago forfeited

the issue because he did not secure a ruling from the superior court on the objections.

(See People v. Rowland (1992) 4 Cal.4th 238, 259 ["In other words, when, as here, the

defendant does not secure a ruling, he does not preserve the point. That is the rule."].)

Although we do not view the People's forfeiture argument as particularly persuasive on

the record before us, we decline to address that contention and instead exercise our

discretion to address the issues raised here on the merits. (People v. Williams (1998) 17

Cal.4th 148, 161-162, fn. 6.)

At Malago's sentencing hearing, Malago's counsel objected to several of the

proposed conditions for Malago's mandatory supervision. Specifically, arguing no nexus

between the condition and the crime, counsel objected to conditions 5b, 5c, 5f, 5g, 5i, 5j,

but challenged 6a. On appeal, Malago does not challenge condition 6c, but instead,
challenges 6a. We therefore assume the People made a typographical error and intended
to discuss condition 6a.
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and 6a.2 The court responded that it was its "policy" not to rule on the objections, but

instead, to note the objections and allow the mandatory supervision judge to rule on the

objections at some point in the future. The court explained that it had "no idea what the[]

goals are going to be" to keep Malago "in line" during his mandatory supervision.

Despite not ruling on Malago's objections, the court's order granting mandatory

supervision imposed conditions 5b, 5c, 5f, 5g, 5i, 5j, and 6a.

We review a superior court's ruling regarding mandatory supervision and its terms

and conditions under an abuse of discretion standard. (People v. Martinez (2014) 226

Cal.App.4th 759, 764 (Martinez).) Here, Malago argues the superior court abused its

discretion by failing to rule on the objections. Alternatively stated, Malago asserts the

court failed to exercise the discretion vested in it by law. (People v. Penoli (1996) 46

Cal.App.4th 298, 302.) In response, the People claim the court did not delegate its

responsibilities, but merely left "these important decisions for a future judge who would

oversee [Malago] and be in a better position to make determinations regarding the

conditions [Malago] would need." Malago has the better argument.

The sentencing court has broad statutory discretion in deciding whether to grant

supervised release and any accompanying conditions. (Martinez, supra, 226 Cal.App.4th

at p. 764.) Here, the court exercised its discretion in granting supervised release to

Malago and imposing certain conditions. However, the court refused to rule on Malago's

2 Below, Malago objected in general to the alcohol related conditions by arguing,
"Condition 5 should not be imposed." Malago did not address any specific alcohol
conditions during his sentencing hearing. The court imposed six of the alcohol
conditions (5b, 5c, 5f, 5g, 5i, & 5j). On appeal, Malago does not address conditions 5g
and 5i. Thus, we consider any objection to those two conditions waived.
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objections to those conditions, noting the objections but delegating a ruling on them to

the future mandatory supervision judge. In fact, the court indicated that this was his

"policy." The court's policy represents not a case specific application of sentencing

discretion, but a preconceived determination applicable to all cases in which a defendant

objects to mandatory supervision conditions. Observance of this practice constituted an

erroneous failure to exercise the discretion vested in the court by law. (See People v.

Jasper (1983) 33 Cal.3d 931, 935; People v. Penoli, supra, 46 Cal.App.4th at p. 303.)

Despite our conclusion that the superior court erroneously failed to use its

discretion to rule on Malago's objections, we need not reverse the order unless we find

prejudice. On the record before us, we do not.

"[T]he Legislature has decided a county jail commitment followed by mandatory

supervision imposed under [Penal Code] section 1170, subdivision (h), is akin to a state

prison commitment; it is not a grant of probation or a conditional sentence." (People v.

Fandinola (2013) 221 Cal.App.4th 1415, 1422.) Therefore, "mandatory supervision is

more similar to parole than probation." (Id. at p. 1423.) Courts analyze the validity of

the terms of supervised release under standards "parallel to those applied to terms of

parole." (Martinez, supra, 226 Cal.App.4th at p. 763.)

"The fundamental goals of parole are to help ' "individuals reintegrate into society

as constructive individuals" [citation], "to end criminal careers through the rehabilitation

of those convicted of crime" [citation] and to [help them] become self-supporting.' "

(Martinez, supra, 226 Cal.App.4th at p. 763.) To further these goals, "[t]he state may

impose any condition reasonably related to parole supervision." (In re Stevens (2004)

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119 Cal.App.4th 1228, 1233.) These conditions "must be reasonably related to the

compelling state interest of fostering a law-abiding lifestyle in the parolee." (Id. at

p. 1234.)

"The validity and reasonableness of parole conditions is analyzed under the same

standard as that developed for probation conditions." (Martinez, supra, 226 Cal.App.4th

at p. 764.)

"A condition of [parole] 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.] Conversely, a condition of [parole] 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." (People v. Lent

(1975) 15 Cal.3d 481, 486, fn. omitted.)

"In general, the courts are given broad discretion in fashioning terms of supervised

release, in order to foster the reformation and rehabilitation of the offender, while

protecting public safety." (Martinez, supra, 226 Cal.App.4th at p. 764.) Thus,

imposition of mandatory supervision conditions is reviewed for abuse of discretion.

(Ibid.) A superior court abuses its discretion when the condition "is arbitrary, capricious

or exceeds the bounds of reason under the circumstances." (Ibid.)

As an initial matter, we observe the superior court declined to rule on Malago's

objections to the conditions, but imposed the conditions nonetheless. Thus, under the

case law discussed above, we analyze whether the conditions imposed were valid,

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treating the court's failure to rule on the objections as an implicit rejection of those

objections.

Here, Malago insists none of the challenged conditions is related to the crime for

which he was committed. To this end, he observes he was convicted of transportation,

not possession or being under the influence of any type of controlled substance. As such,

Malago contends the required nexus between his crime and the conditions does not exist.

We agree with Malago that conditions 5b, 5c, 5f, 5j, and 6a are not directly related to

Malago's offense here because there is no indication in the record that Malago was drunk

or high at the time he was transporting controlled substances. However, we find the

conditions are valid because they are reasonably related to future criminality. (People v.

Balestra (1999) 76 Cal.App.4th 57, 65 (Balestra).)

According to the probation report, a juvenile court made a true finding that

Malago attempted to steal a vehicle in 2000 (Pen. Code, § 664; Veh. Code, § 10851,

subd. (a)) and that he was a disruptive presence on school grounds in 2001 (Pen. Code,

§ 626.8, subd. (a)(2)). When Malago was placed on probation as a juvenile, he failed to

successfully complete the terms of his probation. As an adult, Malago admitted

possessing a controlled substance for sale in 2009 (Health & Saf. Code, § 11378). In

2015, Malago was arrested after mailing packages containing controlled substances and

passing through the Otay Mesa port of entry with controlled substances in his vehicle.

In his probation report interview, Malago admitted he drinks six 12-ounce beers

twice per week, and that he began drinking when he was 15. He has experimented with

marijuana and cocaine in the past, and admitted using cocaine as recently as five years

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ago. There is no indication in the record that Malago has ever previously received drug

or alcohol treatment.

As part of the terms of mandatory supervision, the court ordered Malago: Not to

knowingly use or possess alcohol if directed by the probation officer (condition 5b); to

attend self-help meetings if directed by the probation officer (condition 5c); to submit to

any chemical test of blood, breath, or urine to determine blood alcohol content

(condition 5f); to participate in, comply with, and bear all costs associated with a

continuous alcohol monitoring device if directed by probation (condition 5j); and to

complete a program of residential drug treatment and aftercare if directed by probation

officer (condition 6a).

Based on Malago's past use of cocaine, marijuana, and alcohol coupled with his

inability to successfully complete probation, the superior court could have reasonably

concluded that Malago's sobriety and participation in substance abuse treatment

(condition 6a) and self-help meetings (condition 5c) were critical to his rehabilitation and

successful completion of mandatory supervision. As there is no indication in the record

that Malago ever participated in drug or alcohol treatment, a court could reasonably

conclude there exists the possibility that he does not appreciate the dangers of drug or

alcohol use or abuse.

Likewise, we determine the conditions dealing with alcohol consumption and

possession (condition 5b), chemical testing (condition 5f), and alcohol monitoring (5j) to

be valid as well. Malago admitted to drinking six 12-ounce beers on a biweekly basis.

"[E]mprical evidence shows that there is a nexus between drug use and alcohol

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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."

(People v. Beal (1997) 60 Cal.App.4th 84, 87 (Beal).) Therefore, it would be reasonable

to determine Malago's ability to avoid possessing, selling, and using drugs would be

increased if he avoids alcohol. In other words, considering Malago's criminal activity

and past use of drugs and current use of alcohol, a court could reasonably determine that

it would be best for Malago to avoid alcohol altogether. Accordingly, alcohol

consumption, chemical testing, and continuous alcohol monitoring conditions are

reasonably related to future criminality.

Nevertheless, Malago urges this court to follow People v. Kiddoo (1990) 225

Cal.App.3d 922 (Kiddoo) and find the challenged conditions invalid. In Kiddoo, Division

Two of this district reviewed a condition forbidding a narcotics offender from possessing

or consuming alcoholic beverages or frequenting those places where the sale of alcohol

was the primary business. Despite a probation report indicating that the defendant had

used illegal drugs and alcohol since he was 14 and was a current social drinker who

sporadically used methamphetamine, the appellate court determined the no alcohol

condition was not "reasonably related to future criminal behavior" and struck the

condition. (Id. at p. 928.)

This court has rejected the reasoning found persuasive by Division Two in

Kiddoo, supra, 225 Cal.App.3d 922, and explicitly declined to follow that case. (See

Balestra, supra, 76 Cal.App.4th at p. 69 ["Kiddoo . . . is simply inconsistent with a proper

deference to a trial court's broad discretion in imposing terms of probation, particularly

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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."]; Beal, supra,

60 Cal.App.4th at p. 87 ["[W]e disagree with the fundamental assumptions in Kiddoo that

alcohol and drug abuse are not reasonably related and that alcohol use is unrelated to

future criminality where the defendant has history of substance abuse."].) We thus again

decline to follow Kiddoo, and instead, find Balestra and Beal instructive. Here, Malago

has a history of drug related crimes. He admitted to using marijuana and cocaine in the

past. He divulged he regularly drinks alcohol. Against this backdrop, we do not believe

the court abused its discretion in imposing the challenged conditions.

DISPOSITION

The order is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

AARON, J.

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