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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 

ordered 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 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