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Filed 8/24/20 P. v. Cruz Cruz 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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,

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

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 t hem.

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.2

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

a ppellant.
I nside the vehicle, police officers located a ppellant’s El Salvadorian passport. Appellant had an outstanding felony warrant for taking a vehicle without the owner’s consent. Police transported a ppellant 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 a ppellan t 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, a ppellant pled guilty to the first count, and
the trial court dismissed the remaining count. The probation report explained that a ppellant, 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 u p in a country surrounded by violence,” and he witnessed the killing of his uncle when he was seven years old. Although unemployed, a ppellant sometimes
worked in construction. The probation report described a ppellant’s use of alcohol and drugs as

“ [ m ] oder ate.” 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.3

year he has been smoking mariju ana twice a month. [Appellant] stated he last smoke[d] marijuana on the day he was arrested.” The probation report contained proposed conditions including that

a ppellant “shall not use, consume, possess or transport alcohol . . . [or] marijuana . . . .” Other conditions required a ppellant to submit to chemical testing and complete a drug assessment. On May 9, 2019, the court suspended imposition of sentence and placed

a ppellant on three years of probation. Regarding the proposed drug conditions, defense counsel objected that alcohol and marijuana are legal substances, that a ppellant’s offense was not related to drug use, and “it doesn’t seem like [ a ppellant] has an extensive history with drugs or a drug problem; [or] anything but occasional use of legal d rugs, alcohol and marijuana.” The probation officer responded that a ppellant “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 ask ed whether the probation department was “able to
determine that he was under the influence of ma rijuana or simply that he had smoked it sometime that day?” The probation officer responded that if

a ppellant 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

- alcoho l condition, but imposed a condition prohibiting a ppellant 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.”4

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 th e 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
direct ed 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. 4 86. 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 C al.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. 4 86.) “The Lent test ‘is conjunctive

— all three prongs must be satisfied before a reviewing court will invalidate a probat ion 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 future5

criminality.” The Attorney General concedes t he 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 prob ation condition and the crime of which the defendant was convicted. ( Lent , supra , 15 Cal.3d at p. 486.) Here, a ppellant pled guilty to taking a vehicle without the owner’s consent, a crime that by its express terms does not involve marijuana. (See § 108 51, 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

a ppellant 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

a ppellant’s “judgment may have been impaired by his use of marijuana.” But
there is not hing in the record to indicate that a ppellant’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 a ppellant 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

- re lated abuse. We agree with

a ppellant.6

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. 112 2, 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 s afety.” ( Id. at p. 1129.) Here, a ppellant 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 a ppellant’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 appel lant’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 & Sa f. Code, § 11362.1 [making it lawful for persons 21 years of age or older to possess up to 28.5 grams of marijuana].) W hat is missing is some
indication that a ppellant 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 his7

past or current o ffenses 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 a nd 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 a ppellant’s future criminalit y. Because

a ppellant 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 defe ndant 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.8 __ _______________________ Jones, P. J.

WE CONCUR:

_________________________ Simons, J.

_________________________ Needham, J.

A157385