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Filed 11/12/20 P. v. Stewart CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

THE PEOPLE,

Plaintiff and Respondent,

v.

STEVEN MATTHEW STEWART,

Defendant and Appellant.

 A157857

 (Napa County Super. Ct. No.

 19CR000855)

Steven Matthew Stewart was placed on probation after pleading no 

contest to one count of assault by means likely to result in great bodily injury. 

He contends the trial court abused its discretion in imposing a probation 

condition requiring him to refrain from using marijuana, a condition 

appellant sees as unrelated to his offense or future criminality. We affirm.

BACKGROUND

Napa County Police Officer Colton Adams testified at the preliminary 

hearing that on March 25, 2019, he was dispatched to an unrelated incident 

and flagged down by J.R., who told him she had just been assaulted by her 

ex-boyfriend, identified as appellant. J.R.’s hands were “fidgety,” she “wasn’t 

able to stop moving” and she “seemed hysterical” and appeared to have been 

crying. She said she and appellant had been arguing and appellant 

threatened to “bash her face in using his head,” then as the argument 

continued he “headbutted her in the face.” Adams did not notice visible 
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injuries, but J.R. reported that she felt pain. Adams did not have an opinion 

whether J.R. was high on methamphetamine.1

A witness told Adams that as appellant and J.R. were arguing, 

appellant threatened to “beat her down,” then attempted to punch her in the 

face with his left hand, missed the punch, and immediately headbutted her in 

the face. Another witness saw appellant suddenly headbutt J.R. as appellant

and J.R. were arguing. 

Appellant told Adams that he and J.R. were currently dating and had a 

five-year-old daughter together. He denied any physical altercation, saying 

the argument was all verbal. Appellant told Adams he and J.R. had been 

arguing for the past few days and, on the day of the incident, J.R. threatened 

to “put him in jail, because he needed to go to a program.” He said he wanted 

her to go to a program with him. Adams testified that appellant was 

cooperative and calm. 

Appellant was initially charged on March 27, 2019, with one count of 

felony making criminal threats (Pen. Code, § 422)2 and one count of 

misdemeanor battery (domestic violence) (§ 243, subd. (e)(1)), with an 

allegation that appellant had a prior conviction for which he served a prison 

term (§ 667.5, subd. (b).) Following a preliminary hearing, appellant was 

held to answer, an information was filed stating the same charges, and 

appellant pled not guilty and denied the special allegations. Subsequently, 

an amended information added a third count of felony assault by means 

likely to cause great bodily injury (§ 245, subd. (a)). Pursuant to a negotiated 

1 As described in the probation report, the police report related 

appellant having said J.R. was “high on methamphetamine.” 

2 Further statutory references are to the Penal Code unless otherwise 

indicated.
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agreement, appellant pled no contest to the third count and the others were 

dismissed with a Harvey3 waiver. On July 15, 2019, in accordance with the 

agreement, appellant was placed on probation for three years. The court 

imposed the terms and conditions recommended by the probation 

department, with a few modifications not relevant here. 

This appeal followed.4

DISCUSSION

At sentencing, defense counsel objected to imposition of the marijuana 

condition, arguing there was no indication drugs or alcohol were involved in 

the offense. On appeal, appellant contends the trial court abused its 

discretion in imposing this condition because it addresses conduct that is not 

illegal and is not reasonably related either to the offense or to future 

criminality. Two questions are presented: whether appellant can maintain 

this challenge to the probation condition after waiving his right to appeal as 

part of his plea bargain and, if so, whether the condition was properly 

imposed.

I.

The plea form appellant signed on June 14, 2019, included a section 

entitled “Plea Bargain,” which stated, “The following promises have been 

made to me as a condition of my plea(s) . . . ,” followed by a handwritten list 

of terms. Among these handwritten terms was “waive appeal.” Appellant 

3 People v. Harvey (1979) 25 Cal.3d 754.

4 Appellant filed a notice of appeal on the day he was sentenced, July 

15, 2019, but did not request a certificate of probable cause. In December, he 

filed a motion in this court for permission to request a late certificate of 

probable court, which we granted over respondent’s opposition. Appellant 

filed an amended notice of appeal and request for a certificate of probable 

cause in the trial court on January 2, 2020, and the trial court granted the 

certificate of probable cause the same day. 
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initialed this section of the plea form.5 He argues, however, that this general 

waiver of appeal was not knowing and intelligent as to the marijuana 

condition because the plea bargain did not expressly contemplate the court 

imposing this condition. Respondent disagrees.

“To be enforceable, a defendant’s waiver of the right to appeal must be 

knowing, intelligent, and voluntary.” (People v. Panizzon (1996) 13 Cal.4th 

68, 80 (Panizzon).) A “ ‘general waiver’ ”—one that “is nonspecific, e.g., ‘I 

waive my appeal rights’ or ‘I waive my right to appeal any ruling in this 

case’ ” (id. at p. 85, fn. 11)—“ordinarily includes error occurring before but not 

after the waiver because the defendant could not knowingly and intelligently 

waive the right to appeal any unforeseen or unknown future error. (In re 

Uriah R. (1999) 70 Cal.App.4th 1152, 1157.) Thus, a waiver of appeal rights 

does not apply to ‘ “possible future error” [that] is outside the defendant’s 

contemplation and knowledge at the time the waiver is made.’ ([Panizzon], at 

p. 85; see also People v. Sherrick (1993) 19 Cal.App.4th 657, 659; People v. 

Vargas (1993) 13 Cal.App.4th 1653, 1662.)” (People v. Mumm (2002) 98 

Cal.App.4th 812, 815.)

People v. Patton (2019) 41 Cal.App.5th 934, 940–941 (Patton), held that 

a defendant’s waiver of the right to appeal did not bar his challenge to a 

later-imposed condition of probation that was not referenced in the plea 

agreement. Respondent distinguishes Patton as involving a specific waiver: 

The defendant agreed to waive his right to appeal “any sentence stipulated 

herein,” which Patton construed as applying to “the specifics of the stipulated 

sentence specified in his plea agreement” and “not encompass[ing] provisions 

5 Appellant also initialed a printed section of the form stating, “I 

understand I have the right to appeal the judgment of the court by filing a 

notice of appeal . . . .” 
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(such as particular conditions of probation) that were to be determined in 

future proceedings.” (Id. at pp. 942–943.) 

Respondent correctly notes that Patton referred to the waiver in that 

case as “limited” in scope, whereas the waiver in the present case is general. 

But that distinction begs the question: As stated above, a general waiver of 

the right to appeal does “not include error occurring after the waiver” that is 

not “within defendant’s contemplation and knowledge at the time the waiver 

was made.”6 (People v. Vargas, supra, 13 Cal.App.4th at pp. 1653, 1662.) 

Appellant maintains that is the situation here.

Respondent argues the marijuana condition was not an unforeseen or 

unknown error outside the scope of the appeals waiver because the plea 

6 Appellant expends considerable effort anticipating respondent’s 

reliance on People v. Espinoza (2018) 22 Cal.App.5th 794, which held that a 

certificate of probable cause was required for an appeal challenging a 

probation condition where the defendant’s plea bargain included a waiver of 

the right to appeal “the judgment and rulings of the court.” The court 

reached this conclusion because it viewed the challenge to a condition of 

probation as in substance a challenge to the appellate waiver and, therefore, 

to the validity of the plea. As Espinoza summarized its holding, “when a 

defendant waives the right to appeal as part of a plea agreement, and the 

waiver’s terms encompass the issue the defendant wishes to raise, the 

defendant must obtain a certificate of probable cause to avoid dismissal of the 

appeal. With a certificate of probable cause in hand, the defendant may 

argue that the waiver is not enforceable as to the issue raised, whether 

because the waiver was not knowing and intelligent or for some other reason. 

And if the reviewing court determines that the waiver is not enforceable, it 

will reach the merits of the defendant’s underlying claim.” (Id. at p. 803.) 

Appellant takes issue with the Espinoza court’s view that a challenge 

to a probation condition imposed after a plea amounts to a challenge to the 

plea itself. That view is not directly at issue here, as appellant did obtain a 

certificate of probable cause. For this reason, and because respondent does 

not rely on Espinoza, we do not find it necessary to address appellant’s 

argument that the case was wrongly decided.
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agreement clearly contemplated appellant would be placed on probation with 

conditions, and several references in the agreement indicate the parties 

contemplated the waiver would apply to future error with respect to 

“conditions prohibiting the use of certain substances.” 

The plea form specified that the following promises had been made as 

part of the plea bargain: “C.T.S. at sentencing, 3 yrs. Formal prob., 52 wks.

Bat. Prog., no early term. of prob., search & test clause, all 1203.097 terms, 

no early termination of probation, waive appeal, no 17(b) @ sentencing, 

restitution (if any).” The agreement thus specified that appellant would be 

placed on probation for three years and expressly stated several conditions to 

be imposed: A batterer’s program, a search clause, a substance testing 

clause, and “all 1203.097 terms.” Section 1203.097 requires certain terms of 

probation for domestic violence offenses. One of these is that the defendant 

complete a batterer’s program (§ 1203.097, subd. (a)(6)), and respondent 

notes that one of the components the batterer’s program must include is a 

“requirement that the defendant attend group sessions free of chemical 

influence.” (§ 1203.097, subd. (c)(1)(E).) Additionally, respondent maintains 

appellant’s express agreement to a “search & test” clause put him on notice 

that he would be prohibited from possessing and using certain substances. In 

respondent’s view, appellant would have understood a standard test clause 

could include alcohol, illegal drugs and marijuana and, therefore, “[t]hese 

specified terms were not outside of appellant’s contemplation at the time the 

waiver was made.” 

We are not convinced. “The right of appeal should not be considered 

waived or abandoned except where the record clearly establishes it.” (People 

v. Vargas, supra, 13 Cal.App.4th at p. 1662.) Appellant’s plea bargain 

expressly referred to the section 1203.097 probation terms for domestic 
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violence offenders, but the term respondent relies upon as relevant to 

substance abuse mandates only that the defendant attend a batterer’s 

program that requires attendance at group sessions free of chemical 

influence. This term does not imply a general prohibition against all use of 

“chemical substances,” much less all use of marijuana. And while the 

specification in the agreement that appellant would be subject to search and 

test conditions may reasonably be construed as implicitly acknowledging he 

would be prohibited from possessing and using illegal substances, the same is 

not necessarily true for legally possessed substances such as alcohol and 

marijuana as allowed under Health and Safety Code section 11362.1.

In Patton, the court explained that the fact the defendant knew at the 

time of his plea that “some unspecified ‘reasonable’ restrictions or 

requirements could be imposed as a condition of his probation does not mean 

he was agreeing to accept anything the court decided to include, regardless of 

how unreasonable he thought it was.” (Patton, supra, 41 Cal.App.5th at 

p. 940.) Similarly, although appellant’s appellate waiver was broader than 

the one in Patton, we cannot find it was “ ‘knowing, intelligent, and 

voluntary’ ” with respect to a later-imposed condition of probation that was 

not among the specific terms of probation referenced in the plea bargain. 

(Panizzon, supra, 13 Cal.4th at pp. 80, 85.) Accordingly, we conclude 

appellant’s waiver does not prevent him from challenging imposition of the 

marijuana condition.

II.

Appellant argues the trial court abused its discretion in imposing the 

probation condition prohibiting him from possessing or using marijuana.

“ ‘The primary goal of probation is to ensure “[t]he safety of the 

public . . . through the enforcement of court-ordered conditions of probation.” 
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(Pen. Code, § 1202.7.)’ (People v. Carbajal (1995) 10 Cal.4th 1114, 1120

(Carbajal).) Accordingly, the Legislature has empowered the court, in 

making a probation determination, to impose any ‘reasonable 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. . . .’ (Pen. Code, 

§ 1203.1, subd. (j).)” (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).)

“Generally, ‘[a] condition of probation will not be held invalid unless 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 . . . .”

[Citation.]’ ([People v.] Lent [(1975)] 15 Cal.3d [481,] 486.) This test is 

conjunctive—all three prongs must be satisfied before a reviewing court will 

invalidate a probation term. (Id. at p. 486, fn. 1; see also People v. 

Balestra (1999) 76 Cal.App.4th 57, 68–69 (Balestra).) As such, even if a 

condition of probation has no relationship to the crime of which a defendant 

was convicted and involves conduct that is not itself criminal, the condition is 

valid as long as the condition is reasonably related to preventing future 

criminality. (See Carbajal, supra, 10 Cal.4th at 1121.)” (Olguin, supra, 45 

Cal.4th at pp. 379–380.)

Appellant argues the marijuana condition is invalid because it has no 

relationship to his offense, relates to conduct that is not in itself criminal,

and is not reasonably related to future criminality. The first two points are 

not at issue: As respondent agrees, it does not appear that appellant was 

under the influence of any controlled substance at the time of the assault or 

that marijuana or other drugs were otherwise involved in the offense, and 
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adult possession and use of up to 28.5 grams of marijuana is legal, subject to 

various conditions. (§ 11362.1.) 

The question is whether the condition is reasonably related to future 

criminality. Appellant argues it is not, as he has no history of use or abuse of 

marijuana and there is “no indication that marijuana use would trigger 

alcohol use or affect his mental health.” Respondent maintains the condition 

was reasonably imposed based on appellant’s history of using other drugs and 

the risk of marijuana inhibiting his mental health treatment by interfering 

with medication appellant was taking for bipolar disorder. 

According to the probation officer’s presentence report, appellant, 42 

years of age, reported that he drank alcohol heavily from ages 22 to 30 and 

sustained four convictions for driving under the influence (DUI). The 

probation report lists three such convictions, for offenses in 1994, 1998, and 

2006.

7 Appellant reported that he was currently consuming alcohol only once 

a month and it is “no longer a problem.” He reported past use of 

hallucinogens, “mushrooms” once a month from age 16 to 24, and “acid” 

“every couple of months” from age 20 to 26. He had never engaged in 

substance abuse treatment. His criminal history includes a conviction for 

unauthorized possession of a controlled substance (Health & Saf. Code, 

§ 11377, subd. (a)) in 2015. 

In addition, appellant’s history includes convictions for assault with a 

deadly weapon (§ 245, subd. (a)) in 2004; resisting a peace officer in 2016 

(§ 148.1, subd. (a)) and in 1995 (§ 148.10 [resulting in death or serious bodily 

7 The report additionally lists, under “DMV Record,” five convictions for 

driving while driving privilege has been suspended or revoked for a 

conviction of driving under the influence. (Veh. Code, § 14601.2, subd. (a).) 

Several of these are for more recent offense dates—2015, 2016, and 2017—

and the report states that appellant’s driver’s license is “suspended/revoked.” 
10

injury]); and driving in a willful or wanton manner while evading a pursuing 

peace officer (Veh. Code, § 2800.2, subd. (a)) in 2001 and 2017. 

Appellant was diagnosed with bipolar disorder in 2003, for which he 

takes medication. He has been hospitalized approximately five times and 

used to attend monthly therapy but had not seen a therapist in two years. 

The probation officer stated, “Abstention and testing are recommended to 

encourage a sober lifestyle. If he cannot maintain sobriety on his own while 

on probation, he should complete an alcohol and drug assessment in his 

county of residence and engage in the recommended level of treatment. 

Considering the defendant suffers from bipolar and takes prescription 

medication, ‘street’ drugs and/or alcohol may negatively interfere with his 

medication and can cause a disruption in his mental health regiment [sic]. It 

is recommended the defendant continue with mental health services.” 

The marijuana condition was one of several addressing potential 

substance use. Appellant was prohibited from using, consuming, or 

possessing “any marijuana or illegal drugs or substances, including 

nonprescribed controlled substances, unless specifically authorized by the 

court,” from possessing drug paraphernalia, and from drinking or possessing 

alcoholic beverages or being in places where alcohol is sold as the primary 

income of the business. He was required to submit to a blood, breath, or 

urine test if requested by law enforcement or a probation officer, and to 

submit to search and seizure by a probation officer or law enforcement at any 

time, with or without a warrant or reasonable suspicion.8

The court stated, “With regard to 20 and 21 [the marijuana and alcohol 

conditions], the defendant’s criminal history reflects a drug and alcohol 

8 Defense counsel objected to both the marijuana and alcohol 

conditions, but only the marijuana condition is challenged on this appeal.
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abuse. And then when you combine that with the mental health issues 

described in the report, I think that very much supports the abstain from 

marijuana.” 

Appellant argues any relationship between marijuana use or possession 

and prevention of future criminality is merely hypothetical, noting that no 

evidence was offered to support the probation officer’s opinion that use of 

“ ‘street drugs’ ” might interfere with appellant’s medication for bipolar 

disorder and arguing that a mental health issue does not have any 

relationship to potential future criminality. Appellant points to In re Ricardo 

P. (2019) 7 Cal.5th 1113, 1121 (Ricardo P.), which confirmed that “Lent’s

third prong requires more than just an abstract or hypothetical relationship 

between the probation condition and preventing future criminality.” 

Ricardo P. held that while there need not be a “ ‘nexus between the 

probation condition and the defendant’s underlying offense or prior 

offenses,’ ” there must be a “degree of proportionality between the burden 

imposed by a probation condition and the legitimate interests served by the 

condition.” (Ricardo P., supra, 7 Cal.5th at p. 1122.) The electronic device 

search in that case did not satisfy this requirement because nothing in the 

record indicated the minor had ever used an electronic device or social media

in connection with criminal conduct, the trial court imposed the condition 

based on indications the minor had previously used marijuana and a 

“generalization” that minors typically brag about their drug use on social 

media, and the “sweeping probation condition requiring Ricardo to submit all 

of his electronic devices and passwords to search at any time . . . significantly 

burdens privacy interests.” (Id. at pp. 1122–1123.)

The marijuana condition does not similarly implicate a fundamental 

interest, and its relationship to future criminality is supported by 
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considerably more than the generalization relied on in Ricardo P. Although 

there is no evidence appellant was under the influence of drugs or alcohol at 

the time of the offense, his history includes both alcohol and drug abuse, 

albeit not specifically marijuana. His comments to Officer Adams that J.R.

threatened to “put him in jail, because he needed to go to a program” and that 

he wanted her to go to a program with him suggest a contemporaneous issue 

with substance abuse. Appellant does not challenge the no-alcohol probation 

condition. Cases have recognized a connection between alcohol and drugs 

with respect to probation conditions, upholding alcohol prohibitions in cases 

where the defendant’s offense related to drug use because of alcohol’s similar 

effects in impairing judgment and the ability to control behavior. (People v. 

Smith (1983) 145 Cal.App.3d 1032, 1034–1035 [commenting on similarity of 

effects of alcohol to effects of marijuana and other drugs, including “lessening 

of internalized self-control”]; People v. Lindsay (1992) 10 Cal.App.4th 1642, 

1645 [impairment of judgment due to alcohol consumption could reduce drug 

addict’s willpower to refrain from drug use]; People v. Beal (1997) 60 

Cal.App.4th 84, 87 (Beal) [alcohol use related to future criminality where 

defendant has history of substance abuse]; People v. Malago (2017) 8 

Cal.App.5th 1301, 1308 [avoiding alcohol would increase defendant’s ability 

to avoid drug use].) Despite the legalization of recreational use of marijuana, 

it remains a controlled substance, classified as a hallucinogen. (Health & 

Saf. Code, § 11054, subd. (d)(13).) 

Appellant’s present offense reflects impaired judgment and loss of selfcontrol, as do some of his past offenses. It is neither unduly speculative nor 

unreasonable to view the use of substances that tend to impair judgment and 

ability to control behavior—whether alcohol or marijuana—as increasing the 

risk of future commission of offenses of this type. Nor is it unreasonable to 
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view use of such substances as potentially interfering with the efficacy of 

appellant’s mental health treatment, whether by adverse interaction with the

prescribed medication for his bipolar disorder or by undermining his

compliance with taking that medication. According to the probation report, 

based on a validated actuarial risk assessment tool for domestic violence 

offenders, appellant was considered to be at “high” risk to commit future 

domestic violence.9 The court did not abuse its discretion in imposing the 

marijuana condition as one measure to reduce the risk of future offense, in 

accordance with the probation department’s recommendation for 

“[a]bstention and testing . . . to encourage a sober lifestyle.” 

Appellant’s reliance upon People v Kiddoo (1990) 225 Cal.App.3d 922

(Kiddoo) (overruled on other grounds by People v. Welch (1993) 5 Cal.4th 228, 

237) is unavailing. Appellant likens his case to Kiddoo, which invalidated a 

probation condition prohibiting alcohol (id. at p. 927), and distinguishes it 

from Beal, supra, 60 Cal.App.4th at page 85, which upheld such a condition. 

Kiddoo found “no factual indication in the record that the proscribed 

behavior, in the defendant’s case, is reasonably related to future criminal 

behavior” because there was no indication alcohol was related to his offense

of possession of methamphetamine, despite the facts that the 33-year-old 

defendant had used marijuana, methamphetamine, amphetamine, cocaine,

and alcohol since age 14; said he was a social drinker and used 

methamphetamine sporadically; and had a prior conviction for possession of 

marijuana at age 22. (Kiddoo, at pp. 927–928.) 

The defendant in Beal, who pled guilty to methamphetamine 

possession and possession for sale, characterized herself as a social drinker

9 According to the probation report, a score of 7 or higher places an 

offender in the highest of 7 risk categories; appellant’s score was 8.
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and did not consider alcohol use a problem but admitted having become 

involved with methamphetamine at age 26, smoking marijuana and cocaine 

in her late 20s and experimenting with LSD, was selling methamphetamine 

to support her drug habit at the time of her arrest, and told the probation 

officer she “suffered from ‘chemical dependency.’ ” (Beal, supra, 60 

Cal.App.4th at p. 86.) Rejecting the defendant’s reliance upon Kiddoo, the 

Beal court stated: “Although an argument can be made that Kiddoo is 

factually distinguishable from this case (see People v. Lindsay, [supra,] 10 

Cal.App.4th [at p.] 1644), we disagree with the fundamental assumptions 

in Kiddoo that alcohol and drug abuse are not reasonably related and that 

alcohol use is unrelated to future criminality where the defendant has a 

history of substance abuse.” (Beal, at pp. 86–87, fn. omitted.) The same 

court reaffirmed this view, disagreeing with Kiddoo, in Balestra, supra, 76 

Cal.App.4th at pages 68–69, and People v. Malago, supra, 8 Cal.App.5th at 

page 1308, and we agree. In light of appellant’s history of alcohol and drug 

abuse, mental health issues and commission of a domestic violence offense 

reflecting inability to control his emotions and conduct, the marijuana 

condition is reasonably related to future criminality and not disproportionate.

DISPOSITION

The judgment is affirmed.
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_________________________

Kline, P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

People v. Stewart (A157857)