1

Filed 9/21/20 P. v. Arce 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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.

STEPHANIE ARCE,

 Defendant and Appellant.

 

 A158967

 (Marin County

 Super. Ct. No. SC208641A)

 

Defendant and appellant Stephanie Arce appeals from an 

order modifying the terms and conditions of her probation to add 

a drug testing condition. She contends the condition must be 

stricken because no changed circumstances justify the 

modification. We agree and reverse the order.

I. BACKGROUND

While working as a medical assistant at a neurology clinic, 

appellant stole prescription pads, forged the signature of the 

doctor she worked for, and wrote oxycodone prescriptions for an 

“Angela Garcia.” She pled guilty to forging and issuing a 

prescription. (Health & Saf. Code, § 11368.) 
2

A sentencing hearing was held October 17, 2019, and 

appellant was placed on felony probation for three years subject 

to various terms and conditions. The conditions included a 

search term, a requirement that she not consume any 

nonprescribed substances without the court’s permission, a 

requirement that she participate in any treatment or therapy 

ordered by the probation department, and a requirement that she 

obey all laws. 

On November 14, 2019, a hearing was held on a request by 

the probation department to modify probation to include a drug 

testing condition. Defense counsel objected and noted that 

although this case involved the potential possession of 

prescription medications, there was no showing appellant ever 

had a drug problem or that the use of intoxicants was what led to 

her criminality. The probation department responded that the 

lack of a drug testing condition “was just an overlook at the time 

of sentencing.” The court noted that appellant had tested clean 

for 11 months on a previous grant of probation and that she did 

not report any significant drug or alcohol history. Although 

indicating that the defense objection was “very reasonable,” it 

found a basis for the drug testing condition and ordered her 

probation modified to include it. 

II. DISCUSSION

“ ‘[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.’ ” (In re Ricardo P. (2019) 7 
3

Cal.5th 1113, 1118, quoting People v. Lent (1975) 15 Cal.3d 481, 

486.) Although appellant argues that a drug testing condition 

was not reasonably related to the crime of which she was 

convicted or to future criminality because her personal history 

does not include a drug problem, we assume without deciding

that given the nature of the offense, the trial court could have 

imposed drug testing as a condition of appellant’s original 

probation. However, due to inadvertence, a drug testing 

condition was not imposed. This precipitated the probation 

department’s request to modify the terms and conditions of 

appellant’s probation to add a drug testing condition.

“A court may revoke or modify a term of probation at any 

time before the expiration of that term.” (People v. Cookson

(1991) 54 Cal.3d 1091, 1095 (Cookson), citing Pen. Code, 

§ 1203.3.) But “a change in circumstances is required before a 

court has jurisdiction to extend or otherwise modify probation.” 

(Cookson, at p. 1095.) “ ‘An order modifying the terms of 

probation based on the same facts as the original order granting 

probation is in excess of the jurisdiction of the court, for the 

reason that there is no factual basis to support it.’ ” (Ibid. at 

p. 1095; see also People v. Medeiros (1994) 25 Cal.App.4th 1260, 

1263.)

The only change in circumstances between appellant’s 

sentencing hearing and the probation department’s request for 

modification was the discovery that the department had failed to 

request, and the trial court had failed to impose, a drug testing 

condition. The department did not assert that appellant had 
4

violated any originally imposed term or condition, nor did it offer 

any other new fact showing a change in circumstances. It simply 

claimed a drug testing condition would be helpful in enforcing the 

original terms and conditions.

The People contend the trial court’s belated awareness that 

it failed to impose a drug testing condition at the time of 

sentencing constituted a change in circumstances, citing Cookson, 

supra, 54 Cal.3d 1091. In Cookson, the trial court placed the 

defendant on three years’ probation on the condition that he pay 

restitution as determined by the probation department. (Id. at 

p. 1093.) The department determined total restitution to be 

$12,000 and ordered the defendant to make monthly payments 

over the course of his probation, but although the defendant 

made all these payments, at the end of three years he had paid 

only part of the restitution owing because the department had 

miscalculated the payment schedule. (Ibid. & fn. 3.) 

The trial court granted the department’s motion to extend 

probation for two years to secure the defendant’s full payment of 

restitution. (Cookson, supra, 54 Cal.3d at p. 1094.) The Supreme 

Court upheld the modification on the ground the lower courts had 

“correctly determined that a change in circumstance could be 

found in a fact ‘not available at the time of the original order,’ 

namely, ‘that setting the pay schedule consistent with 

defendant’s ability to pay had resulted in defendant’s inability to 

pay full restitution as contemplated within the original period of 

probation.’ ” (Id. at p. 1095.) It was not the court’s discovery that 

authorities had miscalculated the defendant’s restitution 
5

payment schedule that constituted the change of circumstances. 

The change was the miscalculation itself and the defendant’s 

inability to make full restitution before the end of the 

probationary period. Those circumstances arose after the court 

had granted probation and were facts not available when 

probation was first granted.

Here, respondent does not argue the drug testing condition 

was mandatory or that its omission at the time the court 

originally granted probation resulted in an unauthorized 

sentence. (People v. Cates (2009) 170 Cal.App.4th 545, 549 

[failure to impose mandatory probation condition was 

unauthorized sentence that can be corrected at any time].) There 

was no change in circumstances or failure to comply with the 

terms originally imposed. On the record before us, the trial court 

erred in modifying the terms and conditions of appellant’s 

probation to include a drug testing condition.

We have considered whether the imposition of the drug 

testing condition can be affirmed as a nunc pro tunc order. It 

cannot, because “a nunc pro tunc order is generally limited to 

correcting clerical errors” and “cannot declare that something 

was done which was not done.” (People v. Borja (2002) 95 

Cal.App.4th 481, 487 [jail time imposed as condition of probation 

cannot be reduced nunc pro tunc from 365 days to 364 days].) 

“ ‘The distinction between clerical error and judicial error is 

‘whether the error was made in rendering the judgment, or in 

recording the judgment rendered.” ’ ” (People v. Kim (2012) 212 

Cal.App.4th 117, 124.) This is not a situation where, for example, 
6

the court imposed the drug testing condition, but the clerk forgot 

to write it down.

We note that one of the original terms of probation required 

appellant to participate in any treatment or therapy ordered by 

the probation department. Should the probation department 

order participation in a program that requires drug testing as a 

component, nothing in our opinion should be construed to limit 

her participation in that program or in the drug testing.

III. DISPOSITION

The order modifying the terms and conditions of appellant’s 

probation is reversed and the drug testing condition is ordered 

stricken.
7

NEEDHAM, J. 

We concur.

JONES, P.J.

SIMONS, J.

People v. Arce / A158967