Filed 3/30/21 P. v. Pena CA4/1 CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

LARRY PENA,

Defendant and Appellant.

 D076480

 (Super. Ct. No. SCD277208)

APPEAL from a judgment of the Superior Court of San Diego County, 

Charles G. Rogers, Judge. Affirmed as modified.

Kenneth J. Vandevelde, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. 

Sevidal, Andrew S. Mestman and Elizabeth M. Kuchar, Deputy Attorneys 

General, for Plaintiff and Respondent.
2

I.

INTRODUCTION

Defendant Larry Pena committed multiple theft-related offenses at 

stores in the San Diego area. After having charged Pena with two felonies 

and three misdemeanors,1 the People amended the charging document to 

charge Pena with a single felony and three misdemeanors; on that same date, 

Pena entered a plea of guilty to all of the charges. Pena admitted that he 

committed the offenses while out on bail in another case, and further 

admitted that he had suffered four prison priors. According to the record, 

Pena’s “plea to the sheet” was in exchange for the trial court’s commitment 

that the court would resentence him in a separate case, combining the 

sentence for that case with the sentence for Pena’s current offenses, and that 

the court would impose an overall sentence not to exceed seven years four 

months, split between no more than five years in custody and two years four 

months on mandatory supervision. The court sentenced Pena to seven years 

four months, and imposed a single one-year prison prior enhancement for one 

of Pena’s prison priors, and struck the other three prison priors.

After Pena was sentenced and while an appeal was pending, Senate 

Bill No. 136 became effective; the legislation amended Penal Code2 section 

667.5, subdivision (b) to eliminate the one-year enhancement for nonsexually 

violent prison priors.

1 In the first charging document filed in this case, the People charged 

Pena with a single felony and a single misdemeanor; approximately two 

months later, the complaint was amended to charge Pena with two felonies 

and three misdemeanors.

2 Further statutory references are to the Penal Code unless otherwise 

indicated.
3

On appeal, Pena contends that the one-year prison prior enhancement 

that the court imposed pursuant to section 667.5, subdivision (b) must be 

stricken, because his prison prior was for a nonsexually violent offense, which 

no longer qualifies for the prison prior enhancement. Pena also challenges 

several conditions of his mandatory supervision under People v. Lent (1975) 

15 Cal.3d 481 (Lent), and on constitutional vagueness and overbreadth

grounds.

The People concede that the one-year prison prior term imposed must 

be stricken, and we agree. We further conclude that Pena’s arguments 

regarding the conditions of his mandatory supervision are without merit.

We therefore strike the section 667.5 subdivision (b) enhancement from 

Pena’s sentence and affirm the judgment as modified.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background3

On April 30, 2018, while Pena was out of custody on bail on a grand 

theft case from Riverside County (case No. SWF1800214), Pena entered the 

Home Depot store located on Sports Arena Boulevard in San Diego. Pena 

placed an air compressor, which was valued at less than $950, inside his cart, 

and left the store without paying for the air compressor. Pena loaded the air 

compressor into his vehicle. While driving through the parking lot, Pena 

stopped next to a customer’s pickup truck, which had several tools in the bed 

of the truck. Pena got out of his vehicle and took $1,838 worth of tools, 

including cordless drills and cordless hammers, from the truck bed.

3 Because Pena pled guilty to the offenses, we take the factual 

background from the evidence presented at the preliminary hearing and the 

facts admitted by Pena during his guilty pleas.
4

Just over two months later, on July 8, 2018, Pena entered a Dixieline 

Lumber store located on Lomas Santa Fe Drive in Solana Beach. Pena took a 

$300 Sawzall power tool and ran out of the store without paying for the item. 

Once outside of the store, Pena got into the rear passenger seat of a silver 

sedan that had been parked in front of the store. Pena fled the scene in the 

silver sedan. Approximately thirty minutes later, Pena entered another 

Dixieline Lumber store. Pena grabbed two $380 Dewalt grinder tool kits and 

walked toward the front doors of the store, where he knelt down behind a 

display near the checkout counter. While Pena was crouched down, a silver 

Chrysler sedan pulled up to the front of the store. An unknown man got out 

of the sedan, opened both passenger side doors and began to walk toward the 

store. Pena motioned toward the man while still in a crouched position. Just 

as the man entered the store, Pena ran out of the store, still holding both 

grinder tool kits, and got into the silver sedan, which was being driven by an 

unidentified woman. He fled the scene in the silver sedan.

B. Procedural background

On June 11, 2019, the San Diego County District Attorney filed an 

amended information charging Pena with grand theft of personal property 

(§ 487, subd. (a), count 1), and three counts of misdemeanor shoplifting 

(§ 459.5, counts 2, 3 & 4). The amended information alleged that Pena 

committed count 1 while he was out on bail in a Riverside County case 

(§ 12022.1, subd. (b)), and further alleged that Pena had suffered four prison 

priors (§ 667.5, subd. (b)).4

As described by both parties, on the same day that the District 

Attorney amended the information, Pena entered into a “negotiated plea 

4 The parties agree that Pena’s four prison priors were for nonsexually 

violent offenses.
5

agreement” with the trial court, rather than with the prosecutor. Pena pled 

guilty to all charges and admitted all of the allegations in exchange for 

certain sentencing commitments from the court––i.e., that the court would 

resentence Pena on the two grand theft convictions in his Riverside County 

case (case No. SWF1800214) by combining them with the counts in the 

current case, pursuant to California Rules of Court, rule 4.452(a), such that 

the overall sentence would not exceed seven years four months, to be split 

between no more than five years in custody and two years four months on 

mandatory supervision, and Pena would receive all of the custody credits that 

he had accrued in both cases.

The trial court imposed the maximum sentence contemplated by the 

plea agreement––i.e., seven years four months, split between five years in 

custody and two years four months of mandatory supervision with several 

terms and conditions. In reaching this sentence, the court imposed the upper 

term of three years on the first grand theft count and one-third the middle 

term of eight months on the second grand theft count in the Riverside County 

case. With respect to the San Diego County case, the court imposed a 

consecutive sentence of one-third the middle term of eight months for the 

grand theft count, plus two years for the out-on-bail enhancement and one 

year for one prison prior enhancement. The court struck Pena’s three 

remaining prison prior enhancements in the interest of justice (§ 1385), and 

sentenced Pena to credit for time served on the misdemeanor shoplifting 

counts.

Pena filed a timely notice of appeal in conjunction with a request for a 

certificate of probable cause. The trial court denied Pena’s request for a 

certificate of probable cause.
6

III.

DISCUSSION

A. The parties agree that the trial court’s imposition of a one-year 

enhancement imposed under section 667.5, subdivision (b) must be 

stricken pursuant to a recent change in the law

Pena contends that the trial court’s imposition of a one-year prison 

prior enhancement under section 667.5, subdivision (b) must be stricken

because Senate Bill No. 136 amended the law to eliminate the one-year 

prison prior enhancement except with respect to certain sexually-violent 

offenses. The People concede that the one-year enhancement imposed under 

section 667.5, subdivision (b) must be stricken pursuant to Senate Bill No. 

136.5

On October 8, 2019, after Pena was sentenced, the Governor signed 

Senate Bill No. 136, which amended section 667.5, subdivision (b). (People v. 

Lopez (2019) 42 Cal.App.5th 337, 340.) Under the amendment to section 

667.5, subdivision (b), the one-year enhancement in that provision applies 

only if the defendant’s prior prison term was “for a sexually violent offense as 

defined in subdivision (b) of Section 6600 of the Welfare and Institutions 

Code.” (Stats. 2019, ch. 590, § 1.) Senate Bill No. 136’s amendment to 

5 At the time the parties were briefing this case, there was an existing 

split of authority as to whether a defendant who pled guilty and was 

sentenced pursuant to a plea agreement had to obtain a certificate of 

probable cause in order to be able to challenge that sentence based upon a 

subsequent retroactive change in the law. Despite this split of authority, the 

People took the position that Pena was not required to obtain a certificate of 

probable cause to seek the ameliorative effect of Senate Bill No. 136. After 

the People filed a respondent’s brief, the Supreme Court issued an opinion in 

People v. Stamps (2020) 9 Cal.5th 685 (Stamps), in which the Supreme Court 

determined that no certificate is required when a defendant who pled guilty 

appeals from his or her sentence based upon a subsequent beneficial 

retroactive change in the law. (Id. at p. 698.)
7

section 667.5, subdivision (b) became effective on January 1, 2020. (People v. 

Lopez, at p. 341.)

As the People concede, this amendment applies retroactively to all 

defendants whose judgments are not yet final as of that date under the 

authority of In re Estrada (1965) 63 Cal.2d 740, 745, given that the 

elimination of the one-year enhancement for offenses other than sexually 

violent offenses constitutes an ameliorative change in the law. (Cf. Stamps, 

supra, 9 Cal.5th at p. 699 [under authority of Estrada, beneficial change in 

the law regarding granting discretion to trial court to strike a serious felony 

enhancement in the interests of justice applies retroactively to judgments 

that are not yet final].) Pena’s prior offense for which the prison prior was

imposed was not a sexually violent offense. Pena is therefore entitled to 

retroactive application of the amended law.

The People further concede that under the particular circumstances of 

Pena’s plea, the proper remedy is for this court to strike the one-year 

enhancement because the trial court has no authority to impose a different 

sentence on remand. We agree with this assessment, and accept the People’s 

concession.6 We therefore strike the one-year prior prison enhancement that 

6 In Stamps, supra, 9 Cal.5th at p. 707, the Supreme Court concluded 

that where the defendant has entered into a plea agreement and has pled 

guilty in exchange for a specific prison term, and there is no indication that 

the Legislature “intended to overturn long-standing law that a court cannot 

unilaterally modify an agreed upon term [of the negotiated plea agreement] 

by striking portions of it” (id. p. 701), the proper remedy is to remand to allow 

the defendant to decide whether to seek the trial court’s exercise of its newly 

granted discretion to strike the serious felony enhancement; if, on remand, 

the defendant seeks the trial court’s exercise of its discretion and the court 

decides to strike the enhancement, the prosecution should be offered the 

option to accept the modification of the plea bargain to reflect the lower 

sentence or to withdraw from the agreement entirely. (Id. at pp. 706‒707.)

In addition, if the trial court decides to strike the serious felony 
8

was imposed pursuant to section 667.5, subdivision (b) and order the 

sentence modified accordingly.

B. Pena’s challenges to various conditions of supervised release

Pena challenges a number of conditions of the mandatory supervision 

order that the trial court imposed on him pursuant to his term of release. 

Specifically, Pena challenges condition 1(m) (the electronics search 

condition);7 condition 1(k) (the travel condition);8 condition 1(j) (the law 

enforcement contact condition);9 and condition 5(h), which prohibits Pena 

enhancement, the court may also choose to withdraw its approval of the plea 

agreement. (Id. at p. 708.) This case does not involve a plea agreement for 

which a stipulated sentence is one of the material terms of the negotiated 

agreement between the prosecution and the defendant. Rather, the trial 

court set a maximum term to which Pena could be sentenced, or a “lid,” in 

exchange for Pena’s agreement to plead guilty to the entirety of the 

information. Because this case does not involve a plea agreement with a 

stipulated sentence, we conclude that the portion of Stamps discussing the 

appropriate remedy in a situation that involves a plea agreement with a 

stipulated sentence is inapplicable. Therefore, no remand is necessary. We 

accept the People’s concession that the appropriate remedy in this case is to 

strike the prison prior enhancement on appeal.

7 Condition 1(m) requires that Pena “[s]ubmit person, vehicle, residence, 

property, personal effects, computers, and recordable media — including cell 

phones [—] to search at any time with or without a warrant, and with or 

without reasonable cause, when required by [a probation officer (P.O.)] or law 

enforcement officer.”

8 Condition 1(k) requires that Pena obtain his parole officer’s approval 

prior to traveling outside San Diego County.

9 Condition 1(j), requires that Pena “[p]rovide true name, address, and 

date of birth if contacted by law enforcement,” and “[r]eport contact or arrest 

in writing to the P.O. within 7 days” with “the date of contact/arrest, charges, 

if any, and the name of the law enforcement agency.”
9

from being in bars, liquor stores, or other places where alcohol is the “main 

item for sale.”10

Although Pena did not obtain a certificate of probable cause prior to 

appealing and challenging certain conditions of his mandatory supervision 

period, the People concede that Pena was not required to obtain a certificate 

of probable cause in order to challenge these conditions, because neither his 

plea agreement with the court nor the appellate waiver that he signed, 

specified the terms of the mandatory supervision that the court would 

impose. We agree with the People’s analysis and accept the People’s 

concession that Pena was not required to obtain a certificate of probable 

cause in order to challenge the conditions of his mandatory supervision. 

(See People v. Patton (2019) 41 Cal.App.5th 934, 940, 942–943 (Patton)

[defendant did not need a certificate of probable cause to challenge a 

probation condition because his plea and appellate waiver did not specify the 

terms of probation].)

1. Legal standards on review from challenges to conditions of 

mandatory supervision

This case involves the imposition of a period of mandatory supervision 

under the Criminal Justice Realignment Act of 2011. The Criminal Justice 

Realignment Act of 2011 authorizes a trial court to impose a “split sentence,” 

in which a person convicted of certain “low-level” felony offenses (People v.

Scott (2014) 58 Cal.4th 1415, 1418), such as the ones Pena committed, serves 

a portion of his sentence in county jail and the remainder of the sentence in 

the community on mandatory supervision. (§ 1170, subds. (h)(5) & (7).) 

When a defendant serves a period of mandatory supervision, “the defendant 

10 Condition 5(h) prohibits Pena from being “in places, except in the 

course of employment, where you know, or a P.O. or other law enforcement 

officer informs you, that alcohol is the main item for sale.”
10

shall be supervised by the county probation officer in accordance with the 

terms, conditions, and procedures generally applicable to persons placed on 

probation.” (Id., subd. (h)(5)(B).)

Courts generally have “broad discretion in fashioning terms of 

supervised release, in order to foster the reformation and rehabilitation of the 

offender, while protecting public safety.” (People v. Martinez (2014) 226 

Cal.App.4th 759, 764 (Martinez).) A condition of mandatory supervision may 

be challenged on the same grounds as a condition of parole, which in turn, 

may be challenged based on the same standards for challenging probation 

conditions. (Id. at pp. 763–764.)11

A condition of mandatory supervision may be challenged on state-law 

grounds pursuant to the standards set forth in Lent, supra, 15 Cal.3d at 

p. 486. (Martinez, supra, 226 Cal.App.4th at p. 764.) Under Lent, a court 

abuses its discretion when it imposes a term or condition that “ ‘(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.’ ” (Lent, at p. 486.) 

“This test is conjunctive—all three prongs must be satisfied before a 

reviewing court will invalidate a . . . term.” (People v. Olguin (2008) 45 

Cal.4th 375, 379 (Olguin).) A trial court’s application of the Lent test is 

reviewed for abuse of discretion. (Olguin, at p. 379.)

11 The question whether the validity of a condition imposed pursuant to a 

term of mandatory supervision should be assessed in the same manner as a 

probation condition is currently pending before the California Supreme 

Court. (See People v. Bryant (2019) 42 Cal.App.5th 839, review granted Feb. 

19, 2020, S259956.) Until the Supreme Court comments on the issue, we will 

continue to apply the law as expressed in Martinez, supra, 226 Cal.App.4th at 

pages 763 to 764.
11

A condition of mandatory supervision may also be challenged on 

constitutional grounds, including principles prohibiting vagueness and 

overbreadth. “A probation condition ‘must be sufficiently precise for the 

probationer to know what is required of him, and for the court to determine 

whether the condition has been violated,’ if it is to withstand a challenge on 

the ground of vagueness. [Citation.] A probation condition that imposes 

limitations on a person’s constitutional rights must closely tailor those 

limitations to the purpose of the condition to avoid being invalidated as 

unconstitutionally overbroad.” (In re Sheena K. (2007) 40 Cal.4th 875, 890 

(Sheena K.).) “ ‘ “The essential question in an overbreadth challenge is the 

closeness of the fit between the legitimate purpose of the restriction and the 

burden it imposes on the defendant’s constitutional rights—bearing in mind, 

of course, that perfection in such matters is impossible, and that practical 

necessity will justify some infringement.” ’ ” (Patton, supra, 41 Cal.App.5th 

at p. 946.)

When a condition of mandatory supervision is challenged on 

constitutional grounds, we apply a de novo standard of review. (Martinez, 

supra, 226 Cal.App.4th at p. 765.) Challenges to conditions of mandatory 

supervision ordinarily must be raised in the trial court, and if they are not, 

appellate review of those conditions is forfeited. (See People v. Welch (1993) 

5 Cal.4th 228, 234–235.) An exception applies to the forfeiture rule if the 

challenge presents a facial constitutional challenge presenting “a pure 

question of law, easily remediable on appeal by modification of the condition.” 

(Sheena K., supra, 40 Cal.4th at p. 888.) The forfeiture rule does not apply in 

such a case because a facial constitutional challenge “ ‘present[s] [a] “pure 

question[ ] of law that can be resolved without reference to the particular 

sentencing record developed in the trial court” ’ ” (id. at p. 889), and “does not 
12

require scrutiny of individual facts and circumstances but instead requires 

the review of abstract and generalized legal concepts—a task that is well 

suited to the role of an appellate court.” (Id. at p. 885.)

2. The electronics search condition

At sentencing, Pena objected to the electronics search condition on the 

ground that no nexus existed between the condition and the offenses of which 

he was convicted, and that the condition was unconstitutionally overbroad. 

The court rejected Pena’s argument and approved the electronics search 

condition.12

Pena extends his argument on appeal, contending that the electronics 

search condition requiring that he submit his “computers, and recordable 

media, including cellphones, to search at any time with or without a warrant, 

and with or without reasonable cause, when required by P.O. or law 

enforcement officer,” is unreasonable as applied in this case under the 

authority of Lent and In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). In 

the alternative, Pena contends that even if this court concludes that the 

imposition of the electronics search condition is reasonable under Lent, we 

should conclude that the condition is unconstitutionally overbroad as applied 

to him under the rationale of the dissenting opinion in Ricardo P.

12 The trial court initially mentioned to defense counsel that it appeared 

to the court that “a telephone was probably used” in the commission of one of 

the offenses in the current case because “the confederates pull up in the car 

outside just as he’s walking out [of the store] with this thing that he puts in 

the backseat of the car.” The prosecutor also noted that Pena had “18 theft 

convictions throughout his history,” and that “as a matter of common sense 

and practicality, . . . often those items are then sold and traded on the 

internet on — via text messages, via social media, et cetera. All of those 

things, that fencing, is . . . related to these offenses. And though it wasn’t 

charged or a part of the direct offense, it is reasonably related. And certainly, 

there is a sort of nexus in that regard.”
13

a. The electronics search condition is valid under Lent and 

Ricardo P.

As previously discussed, in Lent, the Supreme Court adopted a 

conjunctive three-part test for determining the reasonableness of a probation 

condition; only if all three prongs are satisfied will a condition be invalidated. 

(Olguin, supra, 45 Cal.4th at p. 379.) Thus, a condition of probation will be 

determined to be invalid only 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.’ ” (Lent, supra, 15 Cal.3d at p. 486.)

The People contend that the electronics search condition does have a 

relationship to the crimes for which Pena has been convicted and was 

sentenced. Specifically, the People contend that the trial court could 

reasonably infer that Pena utilized a cell phone to coordinate with his 

accomplice during the Dixieline theft that gave rise to count 4, given the 

precise timing of the accomplice pulling up to the front of the store just as 

Pena was reaching the front of the store. Pena argues that the evidence 

demonstrates that no cell phone was used, citing the fact that Pena used his 

hands to gesture toward one of his accomplices who was outside the store, 

and the lack of any reference to the use of a cell phone from the preliminary 

hearing testimony provided by an officer who reviewed surveillance footage 

from inside the store. However, the officer also testified that there was no 

surveillance footage of Pena taking the items from the shelves. Thus, the fact 

that the officer did not describe the use of a cell phone in the footage that he 

viewed does not suggest that no cell phone was used in the crime. Rather, 

given the precise timing of the accomplices to this theft that ensured that the 

get-away car was in front of the store waiting for Pena just as he reached the 

front of the store, the court could reasonably infer that Pena used some type 
14

of electronic communication with his accomplices to coordinate the timing. 

Thus, the trial court could reasonably have concluded that there is a nexus 

between the use of an electronic device and Pena’s commission of at least one 

of the offenses for which he was convicted. Given this nexus, the condition 

that Pena submit his electronic devices, including cell phones, to search is 

reasonably related to one of the offenses for which Pena was sentenced. The 

condition thereby fails the first prong of the Lent analysis for invalidity, and 

we may uphold the condition on this basis.13

The record also demonstrates that even if an electronics search 

condition was not reasonably related to any of Pena’s current theft crimes, 

the imposition of such a condition fails the third prong of the Lent analysis 

for invalidity because the condition is reasonably related to preventing Pena’s 

future criminality, given Pena’s criminal record. (See Olguin, supra, 45 

Cal.4th at p. 380 [even if a condition is unrelated to the crime defendant was 

convicted of committing and relates to conduct, not itself criminal, “the 

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

future criminality”].) In Ricardo P., supra, 7 Cal.5th at p. 1119, the Supreme 

Court clarified the parameters of the Lent test’s third prong, i.e., whether the 

condition “ ‘ “requires or forbids conduct which is not reasonably related to 

future criminality.” ’ ” Ricardo P. involved a juvenile who was granted 

probation after admitting to two counts of burglary. The juvenile court 

imposed drug conditions because the minor had indicated that he had 

13 Although Pena relies heavily on the analysis in Ricardo P., supra, 

7 Cal.5th 1113, it is clear that Ricardo P. dealt not with the first prong of the 

Lent analysis, but with the third—i.e., whether a condition that is unrelated 

to the crime the defendant was convicted of committing and that relates to 

conduct that is itself not criminal, but is “ ‘ “reasonably related to future 

criminality.” ’ ” (Id. at p. 1119.)
15

previously smoked marijuana. The court also imposed a condition requiring 

that the minor “submit to warrantless searches of his electronic devices, 

including any electronic accounts that could be accessed through these 

devices.” (Id. at p. 1115.) However, nothing in the record indicated that the 

minor had ever used electronic devises to commit, plan, discuss or consider 

criminal conduct. In imposing the condition, the juvenile court relied on its 

own “observation that teenagers ‘typically’ brag about such drug use on social 

media.” (Id. at pp. 1117, 1119.)

The Ricardo P. court concluded that even if one were to accept as true 

the trial court’s premise about the tendency of teenagers to brag about drug 

use on social media, an abstract or hypothetical relationship between the 

probation condition and preventing future criminality was insufficient to 

demonstrate that the condition, which imposed a significant burden on the 

juvenile, was reasonably related to future criminality. (Ricardo P., supra, 

7 Cal.5th at pp. 1119–1120.) The third prong of the Lent test “contemplates a 

degree of proportionality between the burden imposed by a probation 

condition and the legitimate interests served by the condition.” (Ricardo P., 

at pp. 1122–1123.) The Ricardo P. court concluded that this condition 

significantly burdened the juvenile’s privacy interests, given how much 

sensitive and confidential information can be accessed on devices such as cell 

phones, and that the limited justification for the condition did not support 

such a significant burden. (Ibid.) Accordingly, the court concluded that the 

electronics search condition was not reasonably related to the juvenile’s 

future criminality and was therefore, invalid under Lent, supra, 15 Cal.3d 

481. (Ricardo P., at p. 1128.)

In reaching this conclusion, the Supreme Court expressly noted that its 

determination was not a blanket invalidation of all electronics search 
16

conditions and stated that there might be cases in which “the probationer’s 

offense or personal history may provide the . . . court with a sufficient factual 

basis from which it can determine that an electronics search condition is a 

proportional means of deterring the probationer from future criminality.” 

(Ricardo P., at pp. 1128–1129, italics added.) In this case, the record 

demonstrates that Pena has used an electronic device in connection with 

previous offenses. For example, in the past, Pena used an electronic device to 

access an online mobile application, OfferUp, to sell Nixon watches that he 

had stolen. Thus, unlike the record in Ricardo P., in which there was 

“nothing [to] suggest[ ] that Ricardo has ever used an electronic device or 

social media in connection with criminal conduct” (id. at p. 1122), the record 

here clearly shows that Pena, has, at a minimum, used an electronic device in 

connection with his criminal conduct in the past. Thus, Pena’s record is 

qualitatively different from that of the juvenile in Ricardo P. Given Pena’s 

criminal record and his personal history of drug use and repeated thefts in 

connection with his drug habit, the burden that an electronics search 

condition imposes on Pena is not substantially disproportionate to the state’s 

legitimate interests in promoting Pena’s rehabilitation and the successful 

completion of his period of mandatory supervision without further criminal 

conduct. We therefore conclude that the imposition of an electronics search 

condition in this case is reasonable and not invalid under Lent.

b. The electronics search condition is not constitutionally 

overbroad as applied to Pena

Pena also posits in a cursory argument that if this court concludes that 

the electronics search condition is a reasonable condition under Lent, the 

court should consider whether the condition is nevertheless 

unconstitutionally overbroad. Pena relies on the dissenting opinion written 

by Chief Justice Cantil-Sakauye in Ricardo P. as support for his contention. 
17

(See Ricardo P., supra, 7 Cal.5th at pp. 1129‒1140 (conc. & dis. opn. of 

Cantil-Sakauye, C.J.).) However, for reasons similar to those underlying our 

rejection of Pena’s contention that application of the majority opinion in 

Ricardo P. renders the imposition of an electronics search condition 

unreasonable under Lent, we similarly conclude that the imposition of this 

condition is not constitutionally overbroad as applied to Pena. Specifically, 

the electronics search condition is sufficiently tailored to appropriate 

considerations involved in supervising Pena and in assuring that he remains 

law abiding. The record demonstrates that, at a minimum, Pena has used an 

electronic device in connection with his theft offenses in the past; specifically, 

he has used an electronic device to sell stolen items for cash. In addition, as 

the trial court found, Pena’s current offenses demonstrate a sophistication 

and coordinated timing that suggest that he utilized a cell phone in 

conducting at least one of the thefts. The electronics search condition is 

sufficiently tailored to the state’s interest in supervising Pena and will 

provide Pena’s parole officer the necessary oversight to ensure that Pena 

remains law-abiding and does not engage in similar behavior during his 

period of mandatory supervision. We therefore conclude that Pena’s 

constitutional challenge to the electronics search condition fails.

3. The travel condition

Pena argues that the requirement in mandatory supervision condition 

1(k) requiring that he obtain his parole officer’s “consent” before leaving San 

Diego County infringes on his constitutional right to intrastate travel and is 

not narrowly tailored, causing the condition to be constitutionally overbroad. 

Pena further argues that this condition is impermissibly overbroad because it 

“delegates standardless discretion” to his parole officer. Finally, Pena argues 

that the condition is impermissibly vague because it “authorize[s] restrictions 
18

on a defendant’s constitutional rights ‘on an ad hoc and subjective basis.’ ”

(Italics omitted.) (See Sheena K., supra, 40 Cal.4th at p. 890).

Pena did not raise any objection to the imposition of the travel 

condition in the trial court. He has therefore forfeited any contention that 

the condition is unconstitutional in its application to him. We will consider 

Pena’s contentions only to the extent that he is arguing that the travel 

condition is constitutionally invalid on its face. (See Sheena K., supra, 40 

Cal.4th at p. 887 [a constitutional claim may be raised for the first time on 

appeal only where it concerns a challenge that presents a pure question of 

law, such that the issue can be resolved as a matter of law without reference 

to the sentencing record].)

a. The travel condition is not facially overbroad

i. Pena has forfeited his contention that the travel

condition is overbroad because it is not sufficiently 

tailored to the state’s interests in his rehabilitation

Pena argues that the travel condition is unconstitutionally overbroad 

because it “is not closely tailored to the state’s interests.” (Boldface and 

capitalization omitted.) Pena relies on In re White (1979) 97 Cal.App.3d 141, 

in which an appellate court concluded that a probation condition that 

prohibited the probationer from entering a particular sector of Fresno,

California was unconstitutionally overbroad. Pena asserts that, like the 

travel prohibition in In re White, “[t]here is no direct relationship between his 

offenses and his right to travel outside the county.” Pena’s argument 

demonstrates that he is relying on the particular facts of his case to 

demonstrate the purported overbreadth of the condition. In other words, 

Pena is arguing that the condition is unconstitutionally overbroad because 

there is no relationship between his offenses and traveling out of the county; 

this demonstrates that he is raising an as-applied constitutional challenge. 
19

As noted, Pena has forfeited any as-applied challenge by failing to object to 

the travel condition in the trial court. (See, e.g., Sheena K., supra, 40 Cal.4th 

at p. 885 [a defendant who did not object to a condition at sentencing may 

raise a challenge to that condition on appeal only if the defendant’s appellate 

claim “amount[s] to a ‘facial challenge’ ” and the determination whether the 

condition is constitutionally defective “does not require scrutiny of individual 

facts and circumstances but instead requires the review of abstract and 

generalized legal concepts—a task that is well suited to the role of an 

appellate court”]; People v. Pirali (2013) 217 Cal.App.4th 1341, 1347

[“[a]lthough a probation condition may be overbroad when considered in light 

of all the facts, only those constitutional challenges presenting a pure 

question of law may be raised for the first time on appeal”].)14 We therefore 

decline to address this contention.

ii. The travel condition is not facially overbroad merely 

because it grants the parole officer some discretion to 

withhold consent to travel

Pena next argues that the travel condition is “also overbroad because it 

delegates standardless discretion to the parole officer.” (Boldface and 

capitalization omitted.) Although Pena seems to suggest that this is a facial 

challenge to the condition, he also appears to challenge the condition as 

applied to him, given his personal circumstances. For example, at one point, 

Pena asserts that “the travel restriction on Mr. Pena bears no relation to his

rehabilitation and reform.” (Italics added.) To the extent that Pena is 

14 To be clear, Pena does not argue that requiring preapproval for travel 

outside of the county is unconstitutional in all circumstances. We therefore 

do not address the question of whether the provision is unconstitutionally 

overbroad on its face on the ground that it is not sufficiently tailored to the 

state’s interests in supervising individuals who are in the community 

pursuant to a term of mandatory supervision.
20

attempting to challenge the discretionary power given to his parole officer to 

withhold consent for a request to travel as applied to Pena, we conclude that 

Pena may not raise this challenge because he did not object to the imposition 

of this condition on any ground, let alone on the ground that it improperly 

delegates standardless discretion to his parole officer. (See Sheena K., supra, 

40 Cal.4th at p. 885.)

To the extent, however, that Pena’s challenge to the travel condition is 

that in any circumstance, granting a parole officer the discretion to withhold 

permission for travel outside of the county is constitutionally overbroad, we 

will consider this contention.15

“If a probation condition serves to rehabilitate and protect public 

safety, the condition may ‘impinge upon a constitutional right otherwise 

enjoyed by the probationer, who is “not entitled to the same degree of 

constitutional protection as other citizens.” ’ ” (People v. O’Neil (2008) 165 

Cal.App.4th 1351, 1355.) The constitutional right to travel “is not absolute 

and may be reasonably restricted in the public interest.” (People v. Relkin

(2016) 6 Cal.App.5th 1188, 1195 (Relkin).) “Although criminal offenders 

placed on probation [or, as in this case, mandatory supervision] retain their 

constitutional right to travel, reasonable and incidental restrictions on [such 

an individual’s] movement are permissible.” (People v. Moran (2016) 

1 Cal.5th 398, 406 (Moran) [condition that the defendant stay away from all 

stores in the same chain he burglarized reasonable].) In fact, “[i]mposing a 

limitation on [a probationer’s] movements as a condition of probation is 

common, as probation officers’ awareness of [a probationer’s] whereabouts 

15 Pena argues that the condition permits a parole officer to prohibit a 

supervisee “from traveling anywhere outside of San Diego County for any 

reason or for no reason at all.” (Italics omitted.)
21

facilitates supervision and rehabilitation and helps ensure [a probationer]

. . . compl[ies] with the terms of [his] conditional release.” (Ibid.) There is no 

reason why individuals serving out a sentence on mandatory supervision may 

not be similarly subject to such travel limitations. Similarly, the 

constitutional right to associate “ ‘may be restricted if reasonably necessary 

to accomplish the essential needs of the state and public order.’ ” (People v. 

Lopez (1998) 66 Cal.App.4th 615, 627–628 (Lopez).)

The fact that the travel condition gives the parole officer some 

discretion as to whether to grant a supervisee’s request to leave the county 

does not render the condition facially unconstitutional. Rather, a condition 

“should be given ‘the meaning that would appear to a reasonable, objective 

reader,’ ” and in giving it this meaning, one may presume that a probation 

officer will not withhold approval for irrational or capricious reasons. 

(Olguin, supra, 45 Cal.4th at p. 383.) Indeed, the grant of discretionary 

authority to a supervising officer includes an implicit requirement that the 

discretion be exercised reasonably. (See People v. Stapleton (2017) 9 

Cal.App.5th 989, 996–997 (Stapleton) [“A probation officer cannot issue 

directives that are not reasonable in light of the authority granted to the 

officer by the court. Thus, a probation officer cannot use the residence 

condition to arbitrarily disapprove a defendant’s place of residence”]; see also 

People v. Arevalo (2018) 19 Cal.App.5th 652, 658 [condition giving probation 

officer approval power over probationer’s residence “presumes a probation 

officer will not withhold approval for irrational or capricious reasons”].) 

Thus, the fact that a condition permits a parole officer to exercise some 

discretion to grant or deny a supervisee’s request to leave the county “does 

not grant [that] officer the power to issue arbitrary or capricious directives 

that the court itself could not order.” (Stapleton, at p. 997, citing People v. 
22

Kwizera (2000) 78 Cal.App.4th 1238, 1240–1241 [probation condition 

requiring a probationer to obey directions from his probation officer does not 

give probation officer “power to impose unreasonable probation conditions”].)

Further, in any given case, if a parole officer were to deny, for an 

arbitrary reason, a request to leave the county, the supervisee may file a 

petition for modification of her probation condition to address any improper 

exercise of the discretion granted to the parole officer. (See Pen. Code, 

§§ 1170, subd. (h)(5)(B), 1203.2, subd. (b)(1), 1203.3, subd. (a); see also People 

v. Keele (1986) 178 Cal.App.3d 701, 708 [trial court retains jurisdiction to 

review probation officer’s actions].)

We conclude that a mandatory supervision condition that requires a 

supervisee to obtain approval from his parole officer before leaving the county 

is not facially overbroad merely because it grants the parole officer some 

discretion in granting or denying such a request.

b. The travel condition is not void for vagueness

Pena also challenges the travel condition on the ground that it is

“impermissibly vague” because it “permits the parole officer to impair Mr. 

Pena’s constitutional rights ‘on an ad hoc and subjective basis.’ ” He asserts 

that this condition “permits the parole officer to virtually preclude Mr. Pena 

from traveling anywhere outside the county to associate with anyone,” and 

suggests that this condition is similar to one invalidated in Sheena K., supra, 

40 Cal.4th at page 890, which prohibited the probationer from associating 

with anyone “ ‘disapproved of by probation.’ ” (Ibid.)

To avoid invalidation on vagueness grounds, a probation condition 

“ ‘must be sufficiently precise for the probationer to know what is required of 

him, and for the court to determine whether the condition has been 

violated.’ ” (Sheena K., supra, 40 Cal.4th at p. 890; Stapleton, supra, 
23

9 Cal.App.5th at p. 994.) A vague condition not only fails to provide adequate 

notice, but also “ ‘ “impermissibly delegates basic policy matters to policemen, 

judges, and juries for resolution on an ad hoc and subjective basis, with the 

attendant dangers of arbitrary and discriminatory application.” ’ ” (Sheena 

K., at p. 890.)

Unlike the condition at issue in Sheena K., which provided no notice to 

the probationer as to which persons might be “ ‘disapproved of by probation,’ ” 

(Sheena K., supra, 40 Cal.4th at p. 890), the travel condition at issue here 

adequately informs Pena what is required of him: before leaving San Diego 

County, he must get approval from his parole officer. This is precise and 

clear, and there is no ambiguity as to how Pena can fulfill the condition. It is 

also clear how the condition may be violated: Pena violates this condition if 

he leaves the county without first obtaining the requisite approval. Thus, the 

condition does not “impermissibly delegate basic policy matters” to those who 

are deciding whether the condition has been met. (Ibid.) There is no 

discretion by the parole officer or a court as to whether Pena has satisfied 

this condition, and, thus, the condition is not impermissibly vague.16

4. The law enforcement contacts condition

Pena contends that mandatory supervision condition 1(j), which 

requires that he “[p]rovide true name, address, and date of birth if contacted 

by law enforcement,” and “[r]eport contact or arrest in writing to the P.O. 

within 7 days” by providing “the date of contact/arrest, charges, if any, and 

the name of the law enforcement agency,” is unconstitutionally vague and 

overbroad on its face. Specifically, Pena asserts that the word “contact” is 

16 While the parole officer will have discretion to approve of the proposed 

travel or disapprove of it,]this does not make the condition “vague”; Pena is 

clearly apprised of what he must do in order to comply with the condition.
24

inherently vague because it leaves him to guess what sorts of encounters with 

law enforcement he must report. He further contends that the condition is 

overbroad because it sweeps “within its scope contacts with law enforcement 

that are unrelated to the officer’s law enforcement responsibilities, including 

even casual or social occasions, that [are] not worthy of reporting[.]”17 We 

apply the same legal standards for assessing vagueness as identified in 

section III.B.3.b, ante, to Pena’s contention that this condition is 

unconstitutionally vague.

Pena relies on Relkin, supra, 6 Cal.App.5th 1188, in support of his 

argument that condition 1(j) is unconstitutionally vague. The Relkin court 

considered a probation condition that required the defendant “to ‘report to 

the probation officer, no later than the next working day, any arrests or any 

contacts with or incidents involving any peace officer.’ ” (Id. at p. 1196.) The 

defendant argued that the phrases “ ‘contacts with’ and ‘incidents involving’ 

peace officers are uncertain because one cannot determine whether those 

terms include occasional conversation[s] with a police officer who lives down 

the street, answering an officer’s questions as a witness to a crime, or 

participation in a demonstration where officers are present.” (Id. at 

pp. 1196–1197.) The defendant also contended that the condition was 

unconstitutionally vague “because it is subject to the ‘ “whim of any police or 

probation officer,” ’ and infringes on [the defendant’s] rights under the First 

Amendment of the United States Constitution.” (Relkin, at p. 1197.)

17 Pena did not object to the imposition of the law enforcement contacts 

condition. However, his challenges to the condition address the 

constitutionality of the provision on its face, and not as applied to him; as 

such, Pena has not forfeited his challenges to the law enforcement contacts 

condition. (See Sheena K., supra, 40 Cal.4th at p. 888.)
25

The Relkin court determined that the condition was unconstitutionally 

vague, in part, in that “the portion of the condition requiring that defendant 

report ‘any contacts with . . . any peace officer’ ” is vague because it “does 

indeed leave one to guess what sorts of events and interactions qualify as 

reportable.” (Relkin, supra, 6 Cal.App.5th at p. 1197.) According to the 

Relkin court, the defendant could not be certain that the condition would not 

be triggered “when defendant says ‘hello’ to a police officer or attends an 

event at which police officers are present, but would be triggered if defendant 

were interviewed as a witness to a crime or if his ‘lifestyle were such that he 

is present when criminal activity occurs,’ ” as the People had argued on 

appeal. (Ibid.) “The language does not delineate between such occurrences 

and thus casts an excessively broad net over what would otherwise be 

activity not worthy of reporting.” (Ibid.)

In contrast to the condition at issue in Relkin, the law enforcement 

contact reporting condition that requires Pena to “[p]rovide true name, 

address, and date of birth if contacted by law enforcement,” and to “[r]eport 

contact or arrest in writing to the P.O. within 7 days” by providing “the date 

of contact/arrest, charges, if any, and the name of the law enforcement 

agency” would appear to a reasonable, objective reader to refer to contacts 

initiated by a law enforcement officer in which the officer requests such 

identifying information from Pena. This would not include mere greetings by 

law enforcement officers or casual conversations with officers at public events 

or social gatherings. Further, the requirement that Pena report the “contact 

or arrest” and include the “name of the law enforcement agency” indicates 

that the interaction with a law enforcement officer must be of the type that 

either the law enforcement officer supplied that information to Pena, or Pena 

was made aware of this information because the nature of the “contact” was 
26

sufficiently meaningful. This, too, indicates that a reasonable reading of the 

condition sufficiently delineates between casual, random interactions 

between Pena and law enforcement officers, including the exchanging of 

pleasantries, and situations in which Pena is a witness to a crime or is 

specifically stopped and questioned by a law enforcement officer. The mere 

fact that there “ ‘ “ ‘may be difficulty in determining whether some marginal 

or hypothetical act is covered by [a condition’s] language’ ” ’ ” does not render 

the condition “impermissibly vague.” (In re I.V. (2017) 11 Cal.App.5th 249, 

261.) We therefore reject Pena’s vagueness challenge to condition 1(j).

These same factors also lead us to reject Pena’s challenge to the 

condition on the ground that it is unconstitutionally overbroad on its face. 

Pena argues that none of the provisions of the condition “narrow the term 

‘contact’ sufficiently to exclude contacts not worthy of reporting.” He suggests 

that the requirement that he “[p]rovide [his] true name, address, and date of 

birth if contacted by law enforcement” “could refer to a situation where a 

police officer greeted Mr. Pena with a ‘hello’ or spoke to him at an event 

unrelated to the officer’s law enforcement duties,” because it “applies to any 

contact, as long as a law enforcement officer initiates the contact.” This is not 

a reasonable reading of the condition. In no reasonable interpretation of the 

condition would one believe that Pena would be required to provide his name, 

address, and date of birth in response to a simple “hello” from a law 

enforcement officer who did not request this information of him. Further, 

given the second part of the condition, which requires that Pena report to his 

parole officer the date of the contact and that he also include the name of the 

law enforcement agency, the condition is most reasonably understood to 

require that Pena supply his correct information when he is contacted by a

law enforcement officer and that officer requests this information from him, 
27

and in turn, provides Pena with information as to who is making the request. 

This would obviously exclude exchanges of pleasantries with officers, whether 

encountered on the street or at an event. We therefore conclude that the 

reporting of law enforcement contacts condition is narrower than Pena 

suggests, and that the condition is not unconstitutionally overbroad.

5. The condition prohibiting Pena from being in places where alcohol 

is the main item for sale

Finally, Pena argues that the mandatory supervision condition 

prohibiting him from being in places where he knows that alcohol is the main 

item for sale is not reasonably related to his current offenses or his future 

criminality, and that it must therefore be stricken. Relying on Lent and 

Ricardo P., Pena asserts that the significant burden that this condition 

imposes on his constitutional rights to travel and to associate is substantially 

disproportionate to the state interests served by the condition.

At trial, Pena objected to the imposition of this condition, arguing that, 

although he has admitted that he was using marijuana and 

methamphetamine during the period leading up to his arrest, he had not 

used alcohol in “a couple of years.” His attorney stated, “So I don’t think that 

that’s a priority, and I’d like him to not be limited in the places that he can 

visit.” The court rejected this argument, noting that “[t]here’s a whole lot of 

drugs sold in bars, and he’s had a drug problem in the past.” The court also 

noted that “it’s pretty well-established that alcohol and drugs both lower 

one’s inhibitions and make[ ] one more likely to do things that he’s vowed not 

to do again.”

As mentioned above, a condition that forbids conduct that is not itself 

criminal, such as the condition at issue, is nevertheless valid if that conduct 

is reasonably related to the defendant’s current convictions or future 

criminality. (Lent, supra, 15 Cal.3d at p. 486.) Although there is no 
28

indication that alcohol use or being in a location where the main item for sale 

is alcohol are related to Pena’s current offenses, it is nevertheless clear that 

“ ‘conditions of probation aimed at rehabilitating the offender need not be so 

strictly tied to the offender’s precise crime’ [citation] so long as they are 

‘reasonably directed at curbing [the defendant’s] future criminality.’ ” 

(Ricardo P., supra, 7 Cal.5th at p. 1122.) However, Lent’s third prong 

“contemplates a degree of proportionality between the burden imposed by a 

probation condition and the legitimate interests served by the condition” and 

“requires more than just an abstract or hypothetical relationship between the 

probation condition and preventing future criminality. (Ricardo P., at 

pp. 1119, 1121–1122 [burden imposed by electronics search condition on 

minor’s privacy interests was “substantially disproportionate to the 

countervailing interests of furthering his rehabilitation and protecting 

society”].)

Pena argues that the burden that the alcohol condition imposes on his

rights to travel and associate is substantially disproportionate to the 

condition’s goal of deterring his drug use and preventing future criminality. 

However, a supervisee’s constitutional rights to travel and to associate are 

not absolute and may be restricted if reasonably necessary to accomplish the 

essential needs of the state in rehabilitating criminal offenders and 

protecting the public. (Moran, supra, 1 Cal.5th at p. 406; Lopez, supra, 66 

Cal.App.4th at pp. 627–628; Relkin, supra, 6 Cal.App.5th at p. 1195.) The 

record in this case demonstrates that Pena’s personal and criminal histories 

support imposing a condition limiting his ability to be in places where alcohol 

is the main item for sale. Specifically, Pena admitted to a long-standing and 

untreated drug problem. Pena was 12 years old when he began using 

marijuana and methamphetamine, and he was 15 years old when he started 
29

drinking alcohol. Pena claimed that “he was ‘clean from 2014–2017’ but he 

relapsed,” and in the six months leading up to his arrest, Pena was using 

methamphetamine daily, including on the day he was arrested. He also 

acknowledged that the last time he used marijuana was “around the time of 

his arrest.” Despite claiming to have been “ ‘clean’ ” between 2014 and 2017, 

Pena was convicted of driving under the influence of alcohol and possession of 

a controlled substance in 2015. Pena’s criminal history and his current 

offenses involve theft offenses, which, when combined with Pena’s admitted 

drug habit, suggest that he may have been committing theft offenses to 

support that daily drug habit.

Thus, unlike the record in Ricardo P., the record in this case provides a 

link between Pena’s criminal conduct and his use of drugs. (Compare 

Ricardo P., supra, 7 Cal.5th at p. 1119 [“there is no suggestion in the record 

or by the Attorney General that Ricardo has ever used electronic devices to 

commit, plan, discuss, or even consider unlawful use or possession of drugs or 

any other criminal activity”].)

Further, the fact that Pena’s most recent substance of choice appears to 

be methamphetamine does not mean that conditions intended to limit Pena’s 

access to and use of alcohol are unwarranted. Courts have long recognized 

that there is an empirical nexus between drugs and alcohol. (People v. Beal

(1997) 60 Cal.App.4th 84, 87 (Beal).) As explained in Beal, “It is well 

documented that the use of alcohol lessens self-control and thus may create a 

situation where the user has reduced ability to stay away from drugs. 

[Citations.] Presumably for this very reason, the vast majority of drug 

treatment programs . . . require abstinence from alcohol use.” (Ibid.) Given 

this connection, the Beal court concluded that “alcohol use may lead to future 

criminality where the defendant has a history of substance abuse.” (Ibid.; see 
30

also People v. Malago (2017) 8 Cal.App.5th 1301, 1308 [upholding alcohol 

consumption, testing, treatment, and monitoring conditions as a proper 

exercise of discretion and reasonably related to prevent future criminality 

where defendant had a history of alcohol, marijuana, and cocaine use].)

More recently, in People v. Cota (2020) 45 Cal.App.5th 786, we upheld a 

probation condition restricting use or possession of alcohol where the 

defendant, who had pled guilty to carrying a concealed dirk or dagger, 

admitted that he was “a habitual user of methamphetamine and a daily user 

of marijuana.” (Id. at pp. 788, 792.) Although alcohol was not involved in the 

incident, this court observed that “alcohol is a drug–albeit a legal one” and 

noted the empirical nexus between drugs and alcohol. (Id. at p. 792.) “It 

would make little sense to deprive [a defendant’s] probation officer of the 

power to direct [a defendant] away from alcohol as a substitute mind-altering 

substance when his [or her] substance abuse history is so clearly 

demonstrated.” (Id. at p. 793.) Given the defendant’s history of drug use, we 

concluded that the imposition of alcohol-related probation conditions was 

reasonably related to preventing future crimes. (Ibid.) The court rejected an 

argument that the case was distinguishable from Beal, supra, 60 Cal.App.4th 

84 because Cota was not charged with a drug-related offense. Rather, the 

court concluded the Beal analysis was applicable when considering whether 

an alcohol condition is reasonably related to future criminality. (Cota, at 

p. 793, fn. 7.)

We conclude that an alcohol-related condition such as the place 

limitation condition imposed in this case is reasonably related to preventing 

future criminality, given Pena’s history of drug use, as well as evidenced in 

the record of his alcohol use, and his conviction for DUI in 2015. As the trial 

court noted, drugs are often sold in bars and, as we have already outlined, 
31

there is a recognized connection between drug use and alcohol consumption, 

both of which can lower a person’s inhibition and self-control. Further, the 

court imposed other alcohol-related conditions in addition to the place-related 

condition, including that Pena “not knowingly use or possess alcohol if 

directed by the P.O.,” and that he “[s]ubmit to any chemical test of blood, 

breath or urine to determine blood alcohol content.” Pena did not object to 

the imposition of these conditions. The condition prohibiting Pena from being 

in places where he knows alcohol is the main item for sale can assist in 

ensuring his compliance with the other alcohol-related conditions. We 

conclude that the condition prohibiting Pena from being in places where 

alcohol is the main item for sale is reasonably related to Pena’s future 

criminality and is a proportional means of reducing his risk of recidivism and 

promoting his successful rehabilitation. We therefore reject Pena’s challenge 

to condition 5(h).
32

IV.

DISPOSITION

The sentence is modified to strike the prison prior enhancement under 

section 667.5, subdivision (b) and to reduce the sentence by one year. The 

trial court is directed to amend the abstract of judgment to reflect the change 

in sentence and forward a certified copy to the Department of Corrections and 

Rehabilitation. In all other respects, the judgment is affirmed.

AARON, J.

WE CONCUR:

HALLER, Acting P. J.

GUERRERO, J.