People v. Arce CA1/5

Filed 9/21/20 P. v. Arce CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A158967 v. STEPHANIE ARCE, (Marin County Super. Ct. No. SC208641A) Defendant and Appellant.

Defendant and appellant Stephanie Arce appeals from an order modifying the terms and conditions of her probation to add a drug testing condition. She contends the condition must be stricken because no changed circumstances justify the modification. We agree and reverse the order. I. BACKGROUND While working as a medical assistant at a neurology clinic, appellant stole prescription pads, forged the signature of the doctor she worked for, and wrote oxycodone prescriptions for an “Angela Garcia.” She pled guilty to forging and issuing a prescription. (Health & Saf. Code, § 11368.)

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A sentencing hearing was held October 17, 2019, and appellant was placed on felony probation for three years subject to various terms and conditions. The conditions included a search term, a requirement that she not consume any nonprescribed substances without the court’s permission, a requirement that she participate in any treatment or therapy ordered by the probation department, and a requirement that she obey all laws. On November 14, 2019, a hearing was held on a request by the probation department to modify probation to include a drug testing condition. Defense counsel objected and noted that although this case involved the potential possession of prescription medications, there was no showing appellant ever had a drug problem or that the use of intoxicants was what led to her criminality. The probation department responded that the lack of a drug testing condition “was just an overlook at the time of sentencing.” The court noted that appellant had tested clean for 11 months on a previous grant of probation and that she did not report any significant drug or alcohol history. Although indicating that the defense objection was “very reasonable,” it found a basis for the drug testing condition and ordered her probation modified to include it. II. DISCUSSION “ ‘[A] condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.’ ” (In re Ricardo P. (2019) 7