Filed 12/11/13 P. v. Perez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H038895
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1074952)

         v.

FATIMA YOLANDA PEREZ,

         Defendant and Appellant.


         Defendant Fatima Yolanda Perez was placed on probation in two separate cases
for public assistance-related fraud and driving under the influence. On appeal, she
challenges the alcohol-related probation conditions imposed in the felony fraud case only.
Finding no error, we will affirm the judgment.
                                               I. BACKGROUND
         On August 21, 2012, pursuant to a negotiated disposition, defendant entered no
contest pleas in two criminal cases. In CC943198, defendant admitted to driving with a
blood alcohol level of .15 or higher (Veh. Code, §§ 23152, subd. (b), 23578) and driving
without a valid license (Veh. Code, § 12500, subd. (a)), misdemeanors occurring on April
9, 2009. At that hearing, the court found a factual basis for the plea, noting that
defendant’s blood alcohol level was .15 according to the blood test results.
         In C1074952, the subject of this appeal, defendant pleaded to fraud in obtaining
CalWorks and food stamps, a felony occurring between August 2007 and January 2009.
(Welf. & Inst. Code, § 10980, subd. (c)(2).) This offense involved defendant
misrepresenting her employment status and the number of children in her custody to the
Department of Social Services, resulting in the overpayment of public assistance.
       On October 11, 2012, the trial court suspended imposition of sentence in both
cases and placed defendant on concurrent formal probation for three years. With respect
to defendant’s driving under the influence conviction, the probation report contained
several alcohol-related recommendations: That defendant (1) submit to chemical testing
as directed by the probation officer; (2) not possess or consume alcohol, or knowingly go
places where alcohol is the primary item of sale; and (3) enter and complete a substance
abuse treatment program as directed by the probation officer. At the sentencing hearing
the probation department requested that these alcohol-related conditions be added to the
terms of defendant’s probation for the welfare fraud case. The department requested the
alcohol conditions in both cases “to keep them consistent.”
       Counsel for defendant voiced her position that the alcohol-related probation
conditions were appropriate for the driving under the influence case but not the welfare
fraud case. The trial court disagreed, citing People v. Lopez (1998) 66 Cal.App.4th 615,
626 (recognizing gang association prohibition as promoting Penal Code section 1203.1’s
rehabilitation and public safety goals by forbidding conduct reasonably related to future
criminal activity). The court explained that an important and rational relationship existed
between the alcohol-related conditions and defendant’s rehabilitation given defendant’s
DUI conviction.
       Defendant filed a timely notice of appeal challenging those probation conditions.
                                    II. DISCUSSION
       Penal Code section 1203.1, subdivision (j), vests the trial court with discretion to
“impose and require . . . [such] reasonable [probation] 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 . . . .” Although the court’s discretion is broad, a probation condition is
invalid if “ ‘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 . . . .’ ” (People v. Lent (1975) 15
Cal.3d 481, 486 (Lent).) Phrased differently, if a condition of probation forbids conduct
which itself is not criminal, as is the case here, that condition is valid if it either is
reasonably related to the crime defendant committed or to defendant’s future criminality.
       We review the imposition of probation conditions for an abuse of discretion.
(People v. Carbajal (1995) 10 Cal.4th 1114, 1120-21.) We look to whether the
sentencing court’s determination is arbitrary, capricious, or exceeds the bounds of reason,
considering all the circumstances. (Id., at p. 1121.)
       Defendant does not challenge the three alcohol-related conditions-chemical
testing, substance abuse treatment, and the prohibition against consuming alcohol or
frequenting alcohol establishments-as they relate to her probation for driving under the
influence of alcohol. As applied to the welfare fraud matter, however, defendant argues
that the alcohol-related conditions fail the Lent test. She also argues that the challenged
conditions unlawfully impinge on her constitutional rights because they are not rationally
related to rehabilitation or public safety.
       Defendant’s assertion that the alcohol-related conditions meet the first and second
prongs of Lent is not disputed by the People. The record does not show that alcohol use
was related to defendant’s welfare fraud and the probation conditions do not forbid
criminal activity. Defendant focuses on the third Lent prong, arguing that the alcohol-
related conditions are “ ‘not reasonably related to future criminality . . . .’ ” (Lent, supra,
15 Cal.3d at p. 486.) According to defendant, the record forming the welfare fraud case
provides no indication of substance abuse and thus no basis for imposing substance abuse
conditions to protect against future criminal activity. Defendant contends that the
drinking and driving offense also is an insufficient basis to impose the alcohol-related
probation conditions based on future criminality because the police report for the driving
under the influence offense shows nothing more than an “isolated” incident of drinking
and driving.
       In support of her position, defendant cites People v. Kiddoo (1990) 225
Cal.App.3d 922 (Kiddoo), where the trial court imposed “no alcohol” probation terms for
a methamphetamine possession conviction. The appellate court struck the condition
because nothing in the record showed that alcohol was related to Kiddoo’s conviction, or
was reasonably related to future criminal behavior. (Id., at pp. 927-928.) Characterizing
the April 2009 DUI offense as “remote,” Defendant insists that the record here, like in
Kiddoo, “lacks any indication of prior arrests or convictions involving drinking” which
could establish future criminality.
       Defendant also argues that the facts of her case are distinguishable from People v.
Lindsay (1992) 10 Cal.App.4th 1642 (Lindsay) and People v. Beal (1997) 60 Cal.App.4th
84 (Beal), both cases in which the appellate court upheld “no alcohol” probation
conditions for controlled substance convictions. In Beal, the defendant was selling drugs
to support a drug habit. (Id., at p. 86, fn. 1.) Rejecting the reasoning in Kiddoo, the court
concluded that a sufficient nexus existed between the effects of alcohol use and the
probationer’s reduced ability to avoid drugs. (Id., at p. 87.) In Lindsay, the defendant
acknowledged having an alcohol problem and an addictive personality. (Lindsay, supra,
10 Cal.App.4th at p. 1645.)
       The People disagree with defendant’s characterization of her driving under the
influence offense as being “isolated” and “remote” and not warranting rehabilitative
measures, pointing to defendant’s erratic driving and her .15 blood-alcohol level. The
People also argue that the unexplained lapse between defendant’s driving under the
influence arrest and her conviction does not negate the relationship between the alcohol-
related conditions and defendant’s future criminality.
       We agree with the People. The time passage of three years lapse between
defendant’s DUI arrest and her conviction does not defeat the relationship between the
DUI and the need to rehabilitate defendant and to protect her and the public from future
criminality. While we appreciate the absence of intervening arrests for alcohol-related
conduct, “ ‘it has been reliably estimated that only one of every 2,000 drinking drivers is
apprehended.’ ” (Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1340.) Defendant may not
have admitted to an alcohol problem as in Lindsay or have been selling drugs to support a
drug habit as in Beal. But defendant cannot escape the fact that she drove with a high
blood alcohol content endangering the community. Further, at the time of sentencing
defendant had not served any term of probation for the DUI. Indeed, she had not
participated in the first offender program or been evaluated for further treatment.
       The trial court properly relied on defendant’s DUI offense and conviction to
fashion conditions aimed at preventing future criminality involving or influenced by
alcohol use. The conditions at issue are reasonably related to fostering defendant’s
rehabilitation and protecting the public and thus do not infringe on defendant’s
constitutional rights. (People v. Lopez, supra, 66 Cal.App.4th at p. 624.) Accordingly,
we find no error in imposing the alcohol-related probation conditions in defendant’s
welfare fraud case.
                                  DISPOSITION
      The judgment is affirmed.



                                     ____________________________________
                                     Grover, J.




I CONCUR:




____________________________
Mihara, J.
PREMO, Acting P.J., Dissenting
       I respectfully dissent on the discrete issue of imposing alcohol restrictions in a
probation order that results from a welfare fraud conviction. Nothing related to that
conviction suggests that alcohol use, or abuse, was at play in those circumstances.




                                   ______________________________________
                                                         Premo, Acting P.J.




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