Filed 8/24/20 P. v. Cruz Cruz CA1/5

                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,
                                                                        A157385
         Plaintiff and Respondent,
v.                                                                      (Marin County
                                                                        Super. Ct. No. SC208441A)
BRAYAN ALEXANDER CRUZ
CRUZ,
         Defendant and Appellant.



         Appellant Brayan Alexander Cruz Cruz challenges the trial court’s
imposition of “marijuana-related conditions of probation.” Based on the test
articulated in People v. Lent (1975) 15 Cal.3d 481 (Lent), the conditions are
invalid. Accordingly, we strike them.
                       FACTUAL AND PROCEDURAL BACKGROUND
         On March 28, 2019, a police officer in San Rafael, California, responded
to the reported theft of a vehicle. The victim’s coworker told the officer that
he saw someone in the victim’s vehicle whom he did not recognize. The
coworker called the victim, who confirmed his vehicle was stolen. The
coworker approached the vehicle, but the occupant drove away, and the
coworker followed but lost sight of him.


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      Five days later, on April 2, 2019, the victim located his vehicle, but
there was someone sitting in the driver’s seat. The victim’s friend used his
vehicle to block the stolen vehicle. Several officers responded to the scene
and detained the person in the stolen vehicle, who was later identified as
appellant.
      Inside the vehicle, police officers located appellant’s El Salvadorian
passport. Appellant had an outstanding felony warrant for taking a vehicle
without the owner’s consent. Police transported appellant to the San Rafael
police station, where he admitted he stole the vehicle. Appellant stated it
was unlocked and the keys were in the ignition. Appellant had been sleeping
in the vehicle, he acknowledged wrongdoing, and he regretted taking it.
      On April 3, 2019, the People filed a complaint against appellant
alleging he took a vehicle without the owner’s consent (Veh. Code, § 10851,
subd. (a); count 1),1 and he received a stolen vehicle (Pen. Code, § 496d, subd.
(a); count 2). On April 15, 2019, appellant pled guilty to the first count, and
the trial court dismissed the remaining count.
      The probation report explained that appellant, who was 21 years old at
the time of his arrest, was born in El Salvador, and he came to the United
States when he was 16. Appellant had “a difficult childhood,” he “grew up in
a country surrounded by violence,” and he witnessed the killing of his uncle
when he was seven years old. Although unemployed, appellant sometimes
worked in construction.
      The probation report described appellant’s use of alcohol and drugs as
“[m]oderate.” Appellant drank alcohol on social occasions, and “he last
drank . . . two months prior to his arrest.” Appellant reported “he first used
marijuana at the age of 19. He stated he used it occasionally and for the past


      1   Undesignated statutory references are to the Vehicle Code.

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year he has been smoking marijuana twice a month. [Appellant] stated he
last smoke[d] marijuana on the day he was arrested.”
      The probation report contained proposed conditions including that
appellant “shall not use, consume, possess or transport alcohol . . . [or]
marijuana . . . .” Other conditions required appellant to submit to chemical
testing and complete a drug assessment.
      On May 9, 2019, the court suspended imposition of sentence and placed
appellant on three years of probation. Regarding the proposed drug
conditions, defense counsel objected that alcohol and marijuana are legal
substances, that appellant’s offense was not related to drug use, and “it
doesn’t seem like [appellant] has an extensive history with drugs or a drug
problem; [or] anything but occasional use of legal drugs, alcohol and
marijuana.”
      The probation officer responded that appellant “admitted that on the
day of the arrest, he smoked marijuana.” The district attorney submitted on
the objection to the no-alcohol condition, but argued “the marijuana
prohibition would be appropriate given his statement . . . that he had last
used on the date of the arrest when he was in possession of the stolen
vehicle.” The court asked whether the probation department was “able to
determine that he was under the influence of marijuana or simply that he
had smoked it sometime that day?” The probation officer responded that if
appellant smoked marijuana on the day of his arrest, then he was likely still
“intoxicated” at the time of his arrest.
      The trial court struck the no-alcohol condition, but imposed a condition
prohibiting appellant from using or consuming marijuana, stating that “given
that he was using marijuana on the day of the incident, there’s a more than
adequate basis to include that in the conditions.”



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      In imposing the conditions of probation, the court stated: “You are not
to use, consume, possess or transport marijuana, prescribed or not, or any
nonprescribed or illegal drugs or intoxicants of any kind or associated
paraphernalia, unless specifically authorized by the Court, during the
probationary period. [¶] You are to submit to chemical testing at the request
of any peace officer or probation officer to determine drug content. [¶] You
are to complete a drug assessment and follow through with treatment as
directed by probation.” Appellant timely filed a notice of appeal.
                                  DISCUSSION
      Appellant argues the marijuana-related probation conditions are
invalid under Lent, supra, 15 Cal.3d at p. 486. We agree.
      I.    The Lent Test
      A sentencing court has broad discretion to fashion appropriate
conditions of probation that facilitate rehabilitation and foster public safety.
(People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) We review the conditions
imposed for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375,
379.) A condition of probation 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.” ’ ” (In re Ricardo P. (2019) 7 Cal.5th 1113,
1118 (Ricardo P.), quoting Lent, supra, 15 Cal.3d at p. 486.) “The Lent test ‘is
conjunctive—all three prongs must be satisfied before a reviewing court will
invalidate a probation term.’ ” (Ricardo P., at p. 1118.)
      II.   The Marijuana-Related Probation Conditions Are Invalid
       Appellant argues the marijuana-related probation conditions “are
unreasonable because they regulate lawful conduct and are not reasonably
related to the crime of which appellant was convicted or to his future



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criminality.” The Attorney General concedes the conditions prohibit lawful
conduct and therefore satisfy the second prong of the Lent test. We focus on
the first and third prongs.
             A.    Appellant Satisfies the First Prong of the Lent Test
      The first Lent prong requires a relationship between the probation
condition and the crime of which the defendant was convicted. (Lent, supra,
15 Cal.3d at p. 486.) Here, appellant pled guilty to taking a vehicle without
the owner’s consent, a crime that by its express terms does not involve
marijuana. (See § 10851, subd. (a).) Appellant admitted he smoked
marijuana on the day of his arrest, but the probation report indicates he stole
the vehicle five days earlier, on March 28, 2019. The officers who arrested
appellant did not report that he appeared under the influence of marijuana.
      The Attorney General claims that “it cannot be concluded that the use
of marijuana had absolutely no relationship to the offense,” and that
appellant’s “judgment may have been impaired by his use of marijuana.” But
there is nothing in the record to indicate that appellant’s use of marijuana
played a role in his decision to steal the vehicle, and it is not even clear he
was under the influence of marijuana at the time of his arrest, while still in
possession of the vehicle. The marijuana-related probation conditions have
no relationship to the crime of which appellant was convicted.
             B.    Appellant Satisfies the Third Prong of the Lent Test
      Appellant argues the marijuana-related probation conditions are not
reasonably related to preventing his future criminality. Appellant points out
he “has never been accused of or convicted of” a drug-related offense, “he does
not currently suffer from a substance abuse problem,” and he has “never had
to undergo prior interventions” for drug-related abuse. We agree with
appellant.



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      Lent’s third prong does not require a “nexus” between the probation
condition and the offense, but there must be “more than just an abstract or
hypothetical relationship between the probation condition and preventing
future criminality.” (Ricardo P., supra, 7 Cal.5th at pp. 1122, 1121.) In
addition, the condition’s infringement on the probationer’s liberty must not
be “substantially disproportionate to the legitimate interests in promoting
rehabilitation and public safety.” (Id. at p. 1129.)
      Here, appellant told the probation officer he smoked marijuana
twice a month, and he last did so on the day of his arrest. The Attorney
General argues that appellant’s “self-described conduct in smoking
marijuana . . . twice a month . . . placed him in an increased risk category
for future criminality,” that marijuana remains listed in the Health and
Safety Code as a “ ‘hallucinogenic substance,’ ” and that “the trial court could
reasonably determine that it should limit appellant’s use of marijuana to help
him exercise good judgment, and foster his reformation and rehabilitation.”
      But these arguments could be made in every case in which the
probationer admits to occasional use of marijuana, a legal substance. (See
Health & Saf. Code, § 11362.1 [making it lawful for persons 21 years of age or
older to possess up to 28.5 grams of marijuana].) What is missing is some
indication that appellant is predisposed or more likely to commit crimes
when under the influence of marijuana. (People v. Burton (1981) 117
Cal.App.3d 382, 390 [striking condition prohibiting consuming alcoholic
beverages because “there [was] no evidence in the record that appellant had
ever been convicted of an alcohol-related offense . . . or that he had
manifested a propensity to become assaultive while drinking”]; In re D.G.
(2010) 187 Cal.App.4th 47, 53 [modifying condition prohibiting defendant
from coming within 150 feet of any school “[b]ecause there is nothing in his



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past or current offenses or his personal history that demonstrates a
predisposition to commit crimes near school grounds . . . , or leads to a
specific expectation he might commit such crimes”]; People v. Balestra (1999)
76 Cal.App.4th 57, 61–62, 68–69 [upholding alcohol and drug testing
conditions because probationer had “ ‘an alcohol problem’ ” and smelled of
alcohol when she committed the crime].)
      We conclude the marijuana-related probation conditions are not
reasonably related to preventing appellant’s future criminality. Because
appellant satisfies all three prongs of the Lent test, the marijuana-related
probation conditions are invalid. Accordingly, we strike them.
                                DISPOSITION
      We strike the following probation conditions, as stated in the probation
report: “The defendant shall not use, consume, possess or transport
marijuana (prescribed or not) or any non-prescribed or illegal drug or
intoxicant of any kind (or associated paraphernalia) unless specifically
authorized by the court during his probationary period. [¶] Submit to
chemical testing at the request of any peace officer or probation officer to
determine drug content. [¶] Defendant is to complete a drug assessment and
follow through with treatment as directed by Probation.” We otherwise
affirm.




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                                _________________________
                                Jones, P. J.


WE CONCUR:


_________________________
Simons, J.


_________________________
Needham, J.




A157385




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