People v. Butera CA6

Filed 5/21/15 P. v. Butera CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H040996 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1245498)

v.

ROBERT SALVADORE BUTERA,

Defendant and Appellant.

Defendant Robert Salvadore Butera appeals from a conviction for contracting without a license (Bus. & Prof. Code, § 7028, subd. (a)), failure to secure payment of compensation (Lab. Code, § 3700.5), and diversion of construction funds (Pen. Code, § 484b). On appeal, defendant challenges probations conditions related to substance abuse and a $10 crime-prevention fine. As set forth below, we will strike the $10 fine and otherwise affirm the judgment of conviction. FACTUAL AND PROCEDURAL BACKGROUND Defendant and Linda Gross entered a contract in which defendant agreed to remodel Gross’s kitchen for $29,600. Gross was unaware that defendant was not a licensed contractor. During construction, Gross paid defendant over $46,000. When Gross refused to pay additional costs, defendant stopped working and left the project incomplete. Gross reviewed invoices for materials used in the remodel, and she learned that she had paid defendant for materials that he never purchased. An inspector reviewed

defendant’s work and determined that it was substandard and did not satisfy the building codes. The cost to correct defendant’s work and complete construction on the kitchen was $55,000. Defendant did not have workers’ compensation insurance, and he filed a claim against Gross’s homeowner’s insurance for injuries he asserted had occurred at Gross’s home. Based on the foregoing conduct, defendant pleaded guilty to contracting without a license (Bus. & Prof. Code, § 7028, subd. (a)), failure to secure payment of compensation (Lab. Code, § 3700.5), and diversion of construction funds (Pen. Code, § 484b). The trial court suspended imposition of sentence and placed defendant on formal probation for three years. Among the various terms and conditions of probation, the trial court ordered: 1) defendant must “submit to chemical tests as directed by the probation officer,” 2) defendant is “not to possess or use illegal drugs or illegal controlled substances or go anywhere you know illegal drugs or non-prescribed controlled substances are used or sold,” and 3) defendant “shall enter and complete a substance abuse treatment program as directed by the probation officer.” In addition to other fines and fees, the trial court imposed a $10 crime-prevention fine pursuant to Penal Code section 1202.5. Defendant moved to strike the three probation conditions related to substance abuse. At a hearing on the matter, defense counsel argued the conditions were inappropriate because drugs and alcohol played no role in the crimes, defendant had been “clean and sober for five years,” and defendant “regularly attends A.A. meetings on his own volition.” The prosecutor objected, arguing the conditions were appropriate because defendant had a pending charge for driving under the influence. Defense counsel argued the pending charge resulted from defendant’s use of prescription drugs that he “possessed lawfully” and “was lawfully taking.” Defense counsel also noted there had been “an offer of a dry reckless” in the pending case. The trial court refused to strike the probation conditions related to substance abuse, explaining: “There’s this new case that you’ve just alluded to. Part of the objective of imposing probation conditions is to avoid future 2