Filed 12/11/13 P. v. Perez CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

v. 

FATIMA YOLANDA PEREZ, 

Defendant and Appellant. 

 H038895 

 (Santa Clara County 

 Super. Ct. No. C1074952) 

 Defendant Fatima Yolanda Perez was placed on probation in two separate cases 

for public assistance-related fraud and driving under the influence. On appeal, she 

challenges the alcohol-related probation conditions imposed in the felony fraud case only. 

Finding no error, we will affirm the judgment. 

I. BACKGROUND 

 On August 21, 2012, pursuant to a negotiated disposition, defendant entered no 

contest pleas in two criminal cases. In CC943198, defendant admitted to driving with a 

blood alcohol level of .15 or higher (Veh. Code, §§ 23152, subd. (b), 23578) and driving 

without a valid license (Veh. Code, § 12500, subd. (a)), misdemeanors occurring on April 

9, 2009. At that hearing, the court found a factual basis for the plea, noting that 

defendant’s blood alcohol level was .15 according to the blood test results. 

 In C1074952, the subject of this appeal, defendant pleaded to fraud in obtaining 

CalWorks and food stamps, a felony occurring between August 2007 and January 2009. 

(Welf. & Inst. Code, § 10980, subd. (c)(2).) This offense involved defendant 
misrepresenting her employment status and the number of children in her custody to the 

Department of Social Services, resulting in the overpayment of public assistance. 

 On October 11, 2012, the trial court suspended imposition of sentence in both 

cases and placed defendant on concurrent formal probation for three years. With respect 

to defendant’s driving under the influence conviction, the probation report contained 

several alcohol-related recommendations: That defendant (1) submit to chemical testing 

as directed by the probation officer; (2) not possess or consume alcohol, or knowingly go 

places where alcohol is the primary item of sale; and (3) enter and complete a substance 

abuse treatment program as directed by the probation officer. At the sentencing hearing 

the probation department requested that these alcohol-related conditions be added to the 

terms of defendant’s probation for the welfare fraud case. The department requested the 

alcohol conditions in both cases “to keep them consistent.” 

 Counsel for defendant voiced her position that the alcohol-related probation 

conditions were appropriate for the driving under the influence case but not the welfare 

fraud case. The trial court disagreed, citing People v. Lopez (1998) 66 Cal.App.4th 615, 

626 (recognizing gang association prohibition as promoting Penal Code section 1203.1’s 

rehabilitation and public safety goals by forbidding conduct reasonably related to future 

criminal activity). The court explained that an important and rational relationship existed 

between the alcohol-related conditions and defendant’s rehabilitation given defendant’s 

DUI conviction. 

 Defendant filed a timely notice of appeal challenging those probation conditions. 

II. DISCUSSION 

 Penal Code section 1203.1, subdivision (j), vests the trial court with discretion to 

“impose and require . . . [such] reasonable [probation] 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 . . . .” Although the court’s discretion is broad, a probation condition is 

invalid if “ ‘it (1) has no relationship to the crime of which the offender was convicted, 

(2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct 

which is not reasonably related to future criminality . . . .’ ” (People v. Lent (1975) 15 

Cal.3d 481, 486 (Lent).) Phrased differently, if a condition of probation forbids conduct 

which itself is not criminal, as is the case here, that condition is valid if it either is 

reasonably related to the crime defendant committed or to defendant’s future criminality. 

 We review the imposition of probation conditions for an abuse of discretion. 

(People v. Carbajal (1995) 10 Cal.4th 1114, 1120-21.) We look to whether the 

sentencing court’s determination is arbitrary, capricious, or exceeds the bounds of reason, 

considering all the circumstances. (Id., at p. 1121.) 

 Defendant does not challenge the three alcohol-related conditions-chemical 

testing, substance abuse treatment, and the prohibition against consuming alcohol or 

frequenting alcohol establishments-as they relate to her probation for driving under the 

influence of alcohol. As applied to the welfare fraud matter, however, defendant argues 

that the alcohol-related conditions fail the Lent test. She also argues that the challenged 

conditions unlawfully impinge on her constitutional rights because they are not rationally 

related to rehabilitation or public safety. 

 Defendant’s assertion that the alcohol-related conditions meet the first and second 

prongs of Lent is not disputed by the People. The record does not show that alcohol use 

was related to defendant’s welfare fraud and the probation conditions do not forbid 

criminal activity. Defendant focuses on the third Lent prong, arguing that the alcoholrelated conditions are “ ‘not reasonably related to future criminality . . . .’ ” (Lent, supra, 

15 Cal.3d at p. 486.) According to defendant, the record forming the welfare fraud case 

provides no indication of substance abuse and thus no basis for imposing substance abuse 

conditions to protect against future criminal activity. Defendant contends that the 

drinking and driving offense also is an insufficient basis to impose the alcohol-related 
probation conditions based on future criminality because the police report for the driving 

under the influence offense shows nothing more than an “isolated” incident of drinking 

and driving. 

 In support of her position, defendant cites People v. Kiddoo (1990) 225 

Cal.App.3d 922 (Kiddoo), where the trial court imposed “no alcohol” probation terms for 

a methamphetamine possession conviction. The appellate court struck the condition 

because nothing in the record showed that alcohol was related to Kiddoo’s conviction, or 

was reasonably related to future criminal behavior. (Id., at pp. 927-928.) Characterizing 

the April 2009 DUI offense as “remote,” Defendant insists that the record here, like in 

Kiddoo, “lacks any indication of prior arrests or convictions involving drinking” which 

could establish future criminality. 

 Defendant also argues that the facts of her case are distinguishable from People v. 

Lindsay (1992) 10 Cal.App.4th 1642 (Lindsay) and People v. Beal (1997) 60 Cal.App.4th 

84 (Beal), both cases in which the appellate court upheld “no alcohol” probation 

conditions for controlled substance convictions. In Beal, the defendant was selling drugs 

to support a drug habit. (Id., at p. 86, fn. 1.) Rejecting the reasoning in Kiddoo, the court 

concluded that a sufficient nexus existed between the effects of alcohol use and the 

probationer’s reduced ability to avoid drugs. (Id., at p. 87.) In Lindsay, the defendant 

acknowledged having an alcohol problem and an addictive personality. (Lindsay, supra, 

10 Cal.App.4th at p. 1645.) 

 The People disagree with defendant’s characterization of her driving under the 

influence offense as being “isolated” and “remote” and not warranting rehabilitative 

measures, pointing to defendant’s erratic driving and her .15 blood-alcohol level. The 

People also argue that the unexplained lapse between defendant’s driving under the 

influence arrest and her conviction does not negate the relationship between the alcoholrelated conditions and defendant’s future criminality. 
 We agree with the People. The time passage of three years lapse between 

defendant’s DUI arrest and her conviction does not defeat the relationship between the 

DUI and the need to rehabilitate defendant and to protect her and the public from future 

criminality. While we appreciate the absence of intervening arrests for alcohol-related 

conduct, “ ‘it has been reliably estimated that only one of every 2,000 drinking drivers is 

apprehended.’ ” (Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1340.) Defendant may not 

have admitted to an alcohol problem as in Lindsay or have been selling drugs to support a 

drug habit as in Beal. But defendant cannot escape the fact that she drove with a high 

blood alcohol content endangering the community. Further, at the time of sentencing 

defendant had not served any term of probation for the DUI. Indeed, she had not 

participated in the first offender program or been evaluated for further treatment. 

 The trial court properly relied on defendant’s DUI offense and conviction to 

fashion conditions aimed at preventing future criminality involving or influenced by 

alcohol use. The conditions at issue are reasonably related to fostering defendant’s 

rehabilitation and protecting the public and thus do not infringe on defendant’s 

constitutional rights. (People v. Lopez, supra, 66 Cal.App.4th at p. 624.) Accordingly, 

we find no error in imposing the alcohol-related probation conditions in defendant’s 

welfare fraud case. 
DISPOSITION 

 The judgment is affirmed. 

 ____________________________________ 

 Grover, J. 

I CONCUR: 

____________________________ 

Mihara, J. 
1 

PREMO, Acting P.J., Dissenting 

 I respectfully dissent on the discrete issue of imposing alcohol restrictions in a 

probation order that results from a welfare fraud conviction. Nothing related to that 

conviction suggests that alcohol use, or abuse, was at play in those circumstances. 

 ______________________________________ 

 Premo, Acting P.J.