*1 Dist., Apr. First Three. [No. 1992.] A054395. Div. PEOPLE,
THE Plaintiff and Respondent, PATILLO,
REGINALD Defendant and Appellant.
Counsel Offen, Frank under appointment by Court of for Defendant and Appeal, Appellant. General, Williamson,
Daniel E. Lungren, Attorney George Chief Assistant General, General, Attorney John H. Sugiyama, Assistant and Attorney Niver, General, Ronald E. Deputy Attorney for Plaintiff Respondent. Opinion
WERDEGAR, J. pled no contest to one count of sale of (Health cocaine 11352) & Saf. and was on for a placed probation period of three years. Among the probation conditions was a requirement that he in an AIDS participate education On defendant program. appeal contends imposition of this condition was because he was con improper victed of selling, rather than using or We possessing, illegal drugs. hold that the AIDS education condition is within the sentencing court’s discretion where, here, as the record an inference that the supports probationer’s criminal conduct could expose probationer or others to risk of HIV infection. We affirm.
Facts examination, According to at the testimony preliminary November 1990 defendant sold a rock of cocaine to an undercover officer on a Berkeley street corner. The probation officer’s shows report defendant’s involvement with illegal drugs may have as begun when he was first early arrested for of cocaine for sale. In 1986 he was convicted of possession for sale and on placed probation. At that time he told the probation officer he had been freebasing cocaine and While using marijuana. times; he probation tested for cocaine positive several the probation officer described him as a “heavy user of He cocaine.” was sent to state prison eventually He was paroled. found have subsequently violated clear is not from (The date of this violation heroin. by possessing his parole use currently that he did not statement record.) defendant’s Despite main problem concluded officer “[h]is cocaine or defendant’s The officer recommended that of to be abuse.” appears to potential related requirements be conditioned several use, AIDS in an education testing, including counseling, participation any defendant did hearing, object After a at which not program. conditions, the court the recommended conditions. imposed
Discussion “reasonable condi any In the court granting probation impose redress of the justice, in the interests of for amends to society, tions” *4 and and injuries, probationer. victim’s for reformation rehabilitation (Pen. 1203.1.) The on the trial courts statute confers broad discretion to and the protect determine what conditions will best rehabilitation promote 937, Bauer 211 public. (People (1989) v. 940 Cal.App.3d Cal.Rptr. [260 62].) ‘(1) “A condition of held unless it has no probation will not be invalid convicted, (2) to the crime of relates to relationship which the offender was criminal, (3) conduct which in conduct is not itself and or forbids requires reasonably which is not future . . . .’ criminality related to [Citation.] a condition of which or forbids conduct Conversely, requires which is not itself criminal if that to reasonably is valid conduct is related the crime of which the criminality.” defendant was convicted or to future 481, 905, 545], (1975) v. Lent 15 541 P.2d (People Cal.3d 486 Cal.Rptr. [124 623, in People (1967) v. 256 627 quoting part Dominguez Cal.App.2d [64 290].) Cal.Rptr. in reasonably an AIDS education related
Participation program is cocaine, convicted, both the crime which and defendant was sale of to the future criminal conduct for which defendant is at risk. was cocaine, in this selling convicted of But as court apparently smokable form. noted, has in water also previously may cocaine be dissolved powder bloodstream; injected into the with heroin in many users also combine it a single (See known as v. Davis 92 injection People a “speedball.” 250, 817]; Dyer (1988) see 45 People also Cal.App.3d Cal.Rptr. [154 26, 42 Cal.3d P.2d is combination of cocaine injectable [“speedball” [753 1] cocaine, then, and heroin].) Sale of can create a risk that is an offense which HIV others—the consumers of the be infection drug—will exposed the used through injection. needles for intravenous is criminality of AIDS education to future even relationship possible in the has a long clearer. As revealed officer’s defendant report, includes use and this drugs; background of using selling illegal commonly is taken drug a sale of cocaine and a reasonably anticipate The trial court could through injection. intravenous that, time, to sell or to at ftiture defendant will be danger tempted some HIV an others at risk for injectable drug, consume himself or thereby putting If defendant from such infection. a of AIDS education dissuades extent, behavior, succeeded, in to a small criminal the court will have albeit the reforming both protecting public probationer. the defendant and rehabilitating
“Probation is granted hope situation, all of the must be conditioned on the realities of the without defend of which determining technical limitations of the offense scope 348, ant was v. Miller (People convicted.” [64 20].) Tlie fact that defendant’s offense did not involve Cal.Rptr. did make the AIDS education use not itself imposition A go beyond condition abuse of discretion. trial court properly circum exact all the relevant confines of the current offense to consider (1983) 145 (See, stances v. Smith regarding e.g., probationer. that proba 1033-1035 [requirement 825] tioner, (PCP), abstain from alcohol possessing phencyclidine instability, use held emotional light condition proper probationer’s and alcohol integrated and “the nexus between use poorly personality, consumption”].)
Our v. Henson and conclusion are reasoning strongly supported by Henson, (1991) 222], In the defendant was convicted she had which she testified possessing methamphetamine, (Id. 181.) been for several months. at As a condition of ingesting nasally p. in the trial court that an AIDS education probation, ordered she participate 1001.10).1 (hereafter Penal On program pursuant to Code section 1001.10 appeal, the defendant the condition the that section challenged ground on 1001.10 mandates AIDS education for whose offense only drug probationers (Id. 176.) involved a at The p. intravenous use of controlled substance. held, however, (Ibid.) appellate agreed. although court The court that no evidence defendant was suggested using drugs intravenously, conditioning provides: “(a) 1Section judge require any person 1001.10 The shall described in subdi (b), vision as a placing person permitting person condition of either the on or of the participate drug to in a program agree participate diversion to to in an AIDS education program. Testing for AIDS antibodies be but no described in subdivision person shall offered tested, (b) required (b) shall be to apply any person be This section shall who has either [¶] for, placed been on probation granted any following: or diversion A violation of [¶] Code, (a) (a) subdivision Safety Section 11350 of the Health and subdivision of Section Code, Code, 11377 of the Health and Section Safety Safety 11550 of the Health and Section (f) 4143 or of the Business and Professions or of subdivision of Section 647 if the offense involves intravenous use of a controlled violation of substance. A subdivision [¶] (a) (b) or of Section 647.” was not in an AIDS education program her participation from nasal natural progression of discretion. “While there be no abuse it, method of it is an alternative ingestion injecting of methamphetamine her drug through available to might readily appellant that be sorption the (Id. 181.) legislative that one of stated connection(s).” Noting at p. HIV infection to prevent of the AIDS education was purposes needles, that court concluded the use of the Henson through discouraging a to deter attempt the condition was “a reasonable imposition of education reasonably but drugs woman who was not known to have used intravenous because of might ingestion be considered at risk of such means beginning (Id. 182.) her at long-term injection.” p. use of a of intravenous capable Henson, in here future intravenous use. As defendant was at risk for a user of long-term court could find he was sentencing reasonably cocaine, which is which is of intravenous capable injection, in illegal used that manner. He also had a of commerce commonly which could his future customers at risk of infection. drugs, put the argues Legislature, mandating participation that AIDS education offenses only possessory probationers 1001.10; Henson, involving (§ intravenous use of a see controlled substance supra, 231 175-181), at has determined that no connection pp. He exists between AIDS and a reads illegal drugs. conviction for sale of section 1001.10 judgment too That statute reflects broadly. Legislature’s that, for all the risk of possessory injection, offenses involving AIDS is in an educational sufficiently serious to mandate participation statute, however, program. Nothing suggests legislative finding a in no other cases would education be called for. Nor does the statute purport, cases, in the mandated except to take from trial their traditional judges determine, discretion to by considering background circumstances offense, probationer well as the facts of the what conditions will best *6 Henson, serve (See supra, to reform the at probationer society. and protect 181-182.) pp.
The legislation that added section the Penal Code was intended 1001.10 to to combat the help counseling AIDS education and to epidemic by extending intravenous and users who are not reached other prostitutes, easily 1988, 1, (Stats. 4130.) methods. ch. interpretation, Defendant’s p. under which AIDS many education could not be of required probationers even when the the record shows will themselves or possibility they put infection, others at risk of HIV would defeat section 1001.10’s to operate remedial purpose.
Defendant also relies on cases various conditions holding probation 727]; (In People unreasonable. re Bushman 1 P.2d Cal.3d 767 [463 298]; v. Kiddoo Cal.App.3d supra, 623.) are Dominguez, readily distinguish- These cases Cal.App.2d Bushman, psychiatric able. In a that the obtain probationer requirement unreasonable; in the nothing treatment was held the Court found Supreme that mental record to that the needed care or psychiatric show probationer contrast, In (1 777.) at had contributed to his offense. Cal.3d instability p. involvement with co- history the record does show defendant’s of present in he is need of caine and a reasonable basis to conclude providing AIDS education. Kiddoo,
In the probation- the court found no connection between appellate that he er’s and a condition conviction for methamphetamine The where it was sold. not or consume alcohol or possess frequent places “in use court also no defendant’s case” between alcohol found relationship 927-928.) the (225 and future criminal at As pp. behavior. facts; Kiddoo court’s each case must be taken on its own language suggests, here, discussed, AIDS as the a between already record does show connection future possible criminality. Dominguez, a in outside of
Finally, prohibition becoming pregnant marriage was held unreasonable as a condition of for a conviction probation (256 627.) robbery. at p. points appellate crimi court’s unrelated to or future holding past conditions (in nality cannot be used a further interest general public tool (Id. Dominguez, 628.) welfare at expenses). p. interest reducing public statement; rather, We we find here a reason disagree do not with this (AIDS able between the interest served relationship public prevention education) criminal through defendant’s future possible past behavior.
We do not hold that be every person selling illegal drugs may required to an AIDS But where the circum- participate education program. offense, offender, both, stances of the or show a possibility or future involvement with sub- past injection of controlled stances, inclusion AIDS education the conditions of is not abuse of discretion. affirmed. of the trial judgment court is
Merrill, J., concurred.
WHITE, P. J. dissent. respectfully I
I start with the rule established that of a condition of imposition probation (People not authorized by statute is an act outside of the court’s v. power.
1583 298]; 922, People v. Cal.Rptr. (1990) 225 926 Cal.App.3d [275 Kiddoo 130].) I 1277, find no Cal.Rptr. (1988) 1279 Cal.App.3d [253 Burden 205 of probation. condition challenged for defendant’s authorization statutory anof for authority imposition no Penal Code section 1001.101 provides That statute mandates case. of this probation AIDS education condition on persons placed in an AIDS education participation offenses, various enumerated violating a result of granted or diversion as substances, if the conviction possession designated controlled including the statute Significantly, intravenous use of a controlled substance. involves I narcotics. or selling of transporting does not include individuals convicted unius est exclu- maxim inclusio am the well-known guided by consequently alterius; sales to be if intended sio the Legislature persons it would AIDS education program, included with those who must attend an have so stated. the condition. can on section 1203.1 to authorize my colleagues rely
Nor forbids that or requires As a condition of they acknowledge, reasonably if is conduct which is not criminal is valid that conduct only itself fixture convicted or to related to the crime of which the defendant was 905, 481, (1975) (People Cal.Rptr. v. Lent 15 Cal.3d 486 criminality. [124 545]; People Dominguez 541 P.2d [64 290].) in the case at bench. relationship Neither exists Cal.Rptr. (Health & Saf. to the sale of rock cocaine. pled guilty 11352.) an element of this Possession and/or use of the narcotic is not record, Moreover, to other offense. outside the majority goes reported cases, with heroin be used to reach its conclusion that cocaine combined credence to relates AIDS education. It strains intravenously thus assert the facts of criminal cases relate to defendant’s offense. other
The AIDS education to possi- discussion of the majority’s relationship defendant’s past ble future is also sheer look to criminality conjecture. They sale, and one instance of possession sell or that at some future time he “will be anticipate tempted at risk for HIV consume an himself or others injectable drug, thereby putting First, infection.” others at risk put sale of narcotics does not proximately Second, intrave- using drugs for HIV infection. of defendant possibility is mere nously speculation. v. Henson majority rely 222], for the discretion to proposition impose court has indicated. statutory
1 All further references are to the Penal Code unless otherwise *8 in the absence of AIDS education as a condition of was Henson distinguishable. I find that case use. finding felo- the enumerated one of methamphetamine, convicted cocaine, Moreover, is methamphetamine unlike nies section 1001.10. intravenously injected. commonly to the public I critical importance
While AIDS education is of agree for an offense I it a condition of probation am reluctant to general, impose Therefore, I would strike the condition. 1001.10. not listed section 23, 1992, and appellant’s A denied rehearing April for a was petition June 1992. was denied review the Court Supreme petition