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People v. Bouma6/10/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Michael James Bouma entered a negotiated guilty plea to unlawfully taking or driving a motor vehicle. (Veh. Code, § 10851, subd. (a).) The court suspended imposition of sentence and placed him on three years' probation including conditions he serve 180 days in custody and comply with a series of drug- and alcohol-related provisions. Bouma contends the trial court erred in imposing six of the drug- or alcohol-related conditions.
FACTS
On May 6, 2002, Jesus Cruz's pickup truck was stolen. On May 22, while San Diego County sheriff officers were surveiling a home in Lakeside for possible drug activity they saw Cruz's pickup arrive at the home and leave within a few minutes. They contacted Bouma who admitted he was driving the truck knowing it was stolen.
Bouma has a 1985 conviction of driving with .08 percent or more alcohol in his blood (§ 23152, subd. (b)), had criminal proceedings suspended and was diverted in 1989 on a charge of possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a); Pen. Code, § 1000), has a 1991 conviction of driving under the influence of alcohol or drugs (§ 23152, subd. (a)), and in 2000 was convicted of possessing a hypodermic needle (Bus. & Prof. Code, § 4140) and had scars on his arms.
DISCUSSION
A condition of probation is invalid if it: (1) has no relationship to the crime of which the defendant was convicted; (2) relates to conduct which is not in itself criminal ; and (3) requires or forbids conduct that is not reasonably related to future criminality. (People v. Dominguez (1967) 256 Cal.App.2d 623, 627.) The Dominguez test is properly stated in the conjunctive. (People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1.) All three prongs of the test must apply before a condition will be found to be invalid. "Conversely, 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." (Id. at p. 486.) A trial court has broad discretion in imposing conditions of probation. In applying this standard, the rehabilitative and deterrent effects of the condition should be considered. (Ibid.) Absent a clear showing the decision is arbitrary or irrational, it is presumed the trial court acted to achieve legitimate sentencing objectives. (People v. Giminez (1975) 14 Cal.3d 68, 72.) A decision affecting probation will be upheld absent a clear showing the trial court's determination is arbitrary or capricious. (See People v. Welch (1993) 5 Cal.4th 228, 233.)
Here, Bouma argues the probation conditions are arbitrary that require him to attend and complete a drug or alcohol counseling program if directed by the probation officer, authorize a counselor to provide reports to the probation officer if requested, complete a residential treatment program if directed by the probation officer, attend Alcoholics/Narcotics Anonymous meetings if directed by the probation officer, submit to testing for drugs or alcohol, abstain from using alcohol, and not frequent places where alcohol is the main item of sale. He argues these conditions should be stricken because they are not related to his present offense. However, given Bouma's history of drug and alcohol problems, the trial court was not arbitrary in finding the drug a
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