People v. Driscoll CA5

Filed 12/30/13 P. v. Driscoll CA5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039552 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1239459)

v.

LUCAS KENNETH DRISCOLL,

Defendant and Appellant.

Defendant Lucas Kenneth Driscoll pleaded no contest to inflicting corporal injury on the mother of his child, in violation of Penal Code section 273.5, subdivision (a)1. The trial court suspended imposition of sentence and placed him on probation with conditions. One of the conditions prohibited him from consuming alcohol and going to places where alcohol is the primary item of sale. Another condition mandated that he complete an alcohol treatment program. On appeal, defendant challenges these alcohol- related probation conditions. We will affirm. FACTUAL AND PROCEDURAL BACKGROUND2 On June 15, 2012, San Jose police officers responded to a disturbance call. They found the victim with a three-inch laceration on her forehead and swelling to her face,

1 All further statutory references are to the Penal Code unless otherwise indicated. 2 The factual background is based on the probation report.

lips, cheekbones, and nose. The victim told the officers that she was “in a dating relationship” with defendant and that they had a three-year-old child together. The victim reported that earlier that day she and defendant, who had been consuming alcohol, were at defendant’s cousin’s house, where they got into an argument. Defendant and the victim decided to leave the house to go to San Jose. They got into a vehicle and continued to argue. Defendant starting screaming profanities at the victim and hit her in the face 10 times with closed fists. When the victim attempted to defend herself, defendant threatened that he would “make the physical altercation worse.” When they arrived at a friend’s house in San Jose, the victim tried to get into the back seat of the vehicle to get away from defendant. Defendant threw a cell phone at the victim, hitting her in the forehead. On August 22, 2012, the District Attorney filed a complaint charging defendant with infliction of corporal injury on the mother of his child (§ 273.5, subd. (a)). The complaint also alleged defendant had a prior conviction for robbery that qualified as a strike, for which he had served a prior prison term (§§ 667, subds. (b)-(i), 1170.12, & 667.5, subd. (b)). On February 15, 2013, pursuant to a negotiated disposition, defendant pleaded no contest to violating section 273.5, subdivision (a). The strike and prior prison term allegations were dismissed. The probation report described defendant’s account of his drug and alcohol use as follows: “In regard to substance abuse, the defendant consumes alcohol ‘once every couple of months’ and admitted to experimenting with marijuana. He denied suffering from substance abuse issues and claimed he [last] consumed alcohol a couple weeks prior to the probation interview when he ‘did shots’ at his wife’s baby shower.” The report noted that defendant had previously violated parole by possessing marijuana and ammunition. The probation officer recommended drug and alcohol conditions based on