People v. Rizkallah CA1/5

Filed 10/26/20 P. v. Rizkallah CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A158341 v. WINTHROP RIZKALLAH, (Solano County Super. Ct. No. FCR337300) Defendant and Appellant.

Winthrop Rizkallah appeals from a sentencing order issued after he violated his probation. He contends the court erred in imposing a probation condition that he abstain from the use of alcohol and illegal drugs and submit to alcohol and drug testing at the request of law enforcement. We will strike the probation condition to the extent it requires Rizkallah to abstain from alcohol and submit to alcohol testing, and affirm the order in all other respects. I. FACTS AND PROCEDURAL HISTORY After charges were first brought against Rizkallah (by a complaint that is not included in the record), the court declared a doubt as to his competence and appointed a doctor to evaluate him pursuant to Penal Code section 1369.1 The competency evaluation advised that Rizkallah was diagnosed with

1 All statutory references hereafter are to the Penal Code. 1

“Schizophrenic Spectrum Psychiatric Disorder” and met “the differential diagnostic criteria of possessing a Delusional Disorder [and] exhibit[ed] pathological stalking behaviors.” Rizkallah reported “experiencing auditory hallucinations, lapses of memory, impairments in his concentration and focus, and exhibit[ed] limited insight and impaired judgment.” In May 2017, the court found Rizkallah incompetent to stand trial and in June 2017 committed him to the Department of State Hospitals. In August 2017, Rizkallah was found to have regained competence. In September 2017, the Contra Costa County District Attorney filed an amended complaint charging Rizkallah with felony stalking (§ 646.9, subd. (b)), misdemeanor stalking (§ 646.9, subd. (a)), and misdemeanor violation of a protective order (§ 273.6, subd. (a)). Pursuant to a “Plea Agreement With Probation Terms,” Rizkallah pleaded guilty to the charges and an additional misdemeanor count of violating a protective order. In September 2017, the court suspended execution of sentence, placed Rizkallah on formal probation for five years, ordered him to serve 364 days in jail, and issued a protective order prohibiting him from contacting his victim for 10 years. In March 2018, the Contra Costa County District Attorney charged Rizkallah with felony stalking (§ 646.9, subd. (b)), felony violating a protective order (§ 273.6, subd. (d)), felony contempt of court (§ 166, subd. (c)), and eight misdemeanor counts of violating a protective order (§ 166, subd. (c)(1)). As described in a subsequent probation department report, these 2018 charges were based on Rizkallah continuing to stalk the victim who had been the object of his earlier pursuits. In February 2018, the victim received at her workplace seven multi-page letters from Rizkallah, professing his love,