The opinion
Filed 3/8/21 P. v. Alcantar CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077482
Plaintiff and Respondent,
v. (Super. Ct. No. JCF002708)
JOVANNIE ALCANTAR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County,
Christopher J. Plourd, Jr., Judge. Affirmed.
Karissa Adame, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.
Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and
Respondent.
In this case, Jovannie Alcantar asks this court to create a broad, new
constitutional rule. He argues that a probation condition that requires him
to attend weekly Alcoholics Anonymous (A.A.) or Narcotics Anonymous (N.A.)
meetings is unconstitutional on its face. Specifically, he claims the subject
probation condition violates the Establishment Clause of the United States
Constitution, and we need not consider his personal religious beliefs in
evaluating his contention. In other words, Alcantar asks us to declare that
no California court can include a probation condition requiring a probationer
to attend A.A. or N.A. even if the probationer does not make a specific
objection to that condition based on his or her personal religious beliefs. On
the record before us, we are not willing to create such an expansive new
constitutional decree. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A felony complaint charged Alcantar with willful evasion of a peace
officer (Veh. Code, § 2800.2, subd. (a); count 1); hit-and-run driving resulting
in injury to another person (Veh. Code, § 20001, subd. (b)(1); count 2); and
misdemeanor resisting, delaying, or obstructing a peace officer (Pen. Code,
§ 148, subd. (a)(1); count 3).1 Alcantar pled no contest to count 2 in exchange
for dismissal of the balance of the charges and the prosecution’s
recommendation that Alcantar be given probation and community service,
with no incarceration beyond time served.
At the sentencing hearing, the trial court indicated it was in “general
agreement with the negotiated disposition and the recommendation” of the
probation officer. It then asked Alcantar’s counsel if he had any objections to
1 The underlying facts of Alcantar’s offenses are not relevant for analysis
of the issues before us. Suffice it to say, while evading a California Highway
Patrol officer who was in pursuit of Alcantar, Alcantar drove recklessly,
striking another motorist.
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any specific probationary terms and conditions. In addition to addressing
other conditions, defense counsel argued that Alcantar should not be made to
attend any N.A. meetings because he was already attending a class for “drug-
related issues” as a requirement of his probation conditions in Arizona.
Counsel further requested that Alcantar be permitted to consume alcohol
when he turned 21 years of age. He also pointed out that he did not believe
there existed “a nexus for alcohol conditions, except for the fact [Alcantar’s]
under 21.”
After considering defense counsel’s argument and objections, the court
imposed the following condition regarding treatment for alcohol and drug
abuse for Alcantar: “He must participate in a recovery program of Narcotics
Anonymous or Alcoholics Anonymous, attending a meeting—one meeting per
week, providing proof to his probation officer that he’s doing that.”
After the court imposed the probation conditions, Alcantar’s attorney
again argued against the imposition of the A.A. or N.A. meeting requirement.
At that point, defense counsel objected on religious grounds, asserting that
compelling Alcantar to participate in A.A. or N.A. violated the First
Amendment because these programs were religious in nature. This objection
led to the following exchange:
“[Alcantar’s Counsel]: I object on a religious ground to
any A.A. or N.A. meeting requirement. Essentially a
person has the right to be free from establishment of
religion. N.A. and A.A. meetings have been found in case
law to include a requirement that you accept the existence
of a higher power. They are religious in that nature.
Accordingly, we object on that grounds, and I’d ask to strike
an A.A. or N.A. meeting requirement in this case. It
doesn’t matter if it is consistent or inconsistent with Mr.
Alcantar’s religious beliefs because he has a right to be free
from religion if he chooses to do so. And we are objecting to
that condition. He’s already subject to many drug terms
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and conditions and programming requirements. I
specifically object to that. I’d ask to incorporate the drug
programming he’s already doing.
“THE COURT: I understood your request the first time,
and I understood it the second time. [¶] Are you
specifically saying that N.A. or A.A. meetings conflict with
your client’s religious beliefs?
“[Alcantar’s Counsel]: I’m not saying they conflict with
my client’s beliefs. I’m saying they are imposing upon my
client—and I’m not making a statement either way about
my client’s religious beliefs—they are imposing religion on
my client in violation of the First Amendment when he
objects to having religion imposed upon him. He has a
right to be free from religious imposition, which is exactly
what an N.A. or A.A. requirement is, because the 12 steps
require acknowledgment of the existence of a higher power.
It’s a religious program. I’m not saying its a bad program,
but it is one we object to in this context, particularly in
light of the fact that he’s already doing programming.
“THE COURT: I understand your objection. I’ll note it
for the record. And I’m going to overrule your objection. If
you want to establish it specifically conflicts with his
personal religious belief system, I’ll give you the right to
have a hearing on that subjection. [¶] Are you requesting
a hearing on that subject? And it would an in camera
hearing.
“[Alcantar’s Counsel]: We’re declining the Court’s
request to expose my client’s personal religious beliefs.
And we are objecting to imposition of a program that
requires acknowledgment and acceptance of specific
religious beliefs like the existence of a higher power. I’ll
leave it at that.
“THE COURT: I would give you an in camera hearing.
It would just be you, your client, and the Court, so it would
be private and it would be under seal. [¶] But you are
not requesting that at this time, [Alcantar’s counsel]?
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“[Alcantar’s Counsel]: I’m not requesting that at
this time. We’re declining to divulge my client’s
religious beliefs to the Court, in camera or otherwise,
and we are objecting to the imposition of specific beliefs
under A.A. and N.A. meetings.”
The court then overruled defense counsel’s objection and imposed the
A.A./N.A. probation condition as one of the many conditions of Alcantar’s
three years’ formal probation. The court also suspended Alcantar’s sentence.
After obtaining a certificate of good cause, Alcantar timely appealed.
DISCUSSION
The only issue before us is Alcantar’s claim that the A.A./N.A.
treatment probation condition is unconstitutional on its face. “A facial
challenge ‘does not require scrutiny of individual facts and circumstances but
instead requires the review of abstract and generalized legal concepts.’
[Citation.] The claim is that a condition cannot have any valid application,
without relying on any facts in the sentencing record. [Citation.]” (People v.
Patton (2019) 41 Cal.App.5th 934, 946.) We review this question of law de
novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
Here, Alcantar’s primary argument is that “[c]ompelling probationers
to participate in A.A., N.A., or any other program rooted in religious faith is
unconstitutionally coercive.” Framed in this manner, Alcantar’s contention
seems unremarkable. Indeed, several federal cases have found a violation of
the Establishment Cause2 where a court required an individual to attend
treatment with a particular A.A. or N.A. group over the individual’s objection
2 The Establishment Clause guarantees that the “government may not
coerce anyone to support or participate in religion or its exercise, or otherwise
act in a way which ‘establishes a [state] religion or religious faith, or tends to
do so.’ ” (Lee v. Weisman (1992) 505 U.S. 577, 587, quoting Lynch v. Donnelly
(1984) 465 U.S. 668, 678.)
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that such treatment violated his personal religious beliefs. (See Inouye v.
Kemna (9th Cir. 2007) 504 F.3d 705, 714 (Inouye); Warner v. Orange County
Dep’t of Prob. (2d Cir 1996) 115 F.3d 1068, 1074 (Warner); and Kerr v. Farrey
(7th Cir. 1996) 95 F.3d 472, 474 (Kerr). Therefore, below, had the superior
court compelled Alcantar to attend A.A. or N.A. meetings over his objection
that such meetings conflicted with his own personal religious beliefs, Inouye,
Warner, and Kerr would be instructive. However, that is not what occurred.
The superior court gave Alcantar the opportunity to explain how attending
A.A. or N.A. meetings would be contrary to his religious beliefs, even allowing
Alcantar to do so in camera. Yet, Alcantar declined to provide any
explanation.
Nevertheless, on appeal, Alcantar urges us to follow Inouye, Warner,
and Kerr and declare that the A.A./N.A. probation condition here is
unconstitutional on its face. As we explain post, none of those cases support a
pronouncement of a new constitutional principle on the record before us.
In Inouye, supra, 504 F.3d 705, Ricky Inouye, a Buddhist who suffered
from a methamphetamine addiction, had been challenging his compelled
participation in religion-based drug treatment programs over several years.
(Id. at p. 709.) Inouye sued his parole officer, among others, under
section 1983 of title 42 of the United States Code, claiming he violated the
Establishment Clause by requiring Inouye to attend A.A. or N.A. meetings as
a condition of his parole. (Inouye, at pp. 710-711.) The district court granted
the parole officer’s motion for summary judgment, finding he had violated
Inouye’s First Amendment rights but had qualified immunity. (Inouye, at
p. 711.)
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On appeal, the Ninth Circuit observed it was “essentially uncontested
that requiring a parolee to attend religion-based treatment programs violates
the First Amendment.” (Inouye, supra, 504 F.3d at p. 712.) Further, the
court noted that the parole office did not dispute that the treatment program
was substantially based in religion and presented no evidence that the
program at issue differed from the usual A.A./N.A. program. (Id. at p. 713.)
And Inouye claimed that his parole officer required him to attend a program
rooted in religious faith and then recommended revoking his parole when
Inouye refused to participate. (Id. at p. 713.) Against this backdrop, the
Ninth Circuit agreed with the district court that the parole officer’s actions
were unconstitutional. In other words, on the facts before the court, a
constitutional violation occurred.3 (Id. at p. 714 [“The Hobson’s choice [the
parole officer] offered Inouye—to be imprisoned or to renounce his own
religious beliefs—offend the core of Establishment Clause jurisprudence.”].)
Warner, supra, 115 F.3d 1068 is similar to Inouye. There, Robert
Warner, an atheist who pled guilty to driving drunk and driving without a
license in violation of New York law, sued the Orange County Department of
Probation based on his claim that one of his probation conditions required
him to attend A.A. meetings, which forced him to participate in religious
activity in violation of the Establishment Clause. (Id. at pp. 1069-1070.) The
Second Circuit agreed with the district court’s finding of a constitutional
violation and specifically noted the amount of evidence in the record that
3 The Ninth Circuit also determined that the parole officer was not
entitled to qualified immunity and, thus, reversed the judgment in favor of
the parole officer. (Inouye, supra, 504 F.3d at p. 717.) Because the instant
matter does not concern qualified immunity, we omit any discussion of this
portion of Inouye.
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attendance at the subject A.A. meeting “involved a substantial religious
component.” (Id. at p. 1070.) Further, based on the record before it, the
circuit court observed certain “substantial religious component[s]” in the
specific program Warner attended, including participants being “told to pray
to God for help in overcoming their affliction” and meetings opening and
closing with group prayer. (Id. at p. 1075.)
Finally, Kerr, supra, 95 F.3d 472 also involved an individual being
compelled to attend N.A. meetings. James Kerr was an inmate in a
Wisconsin prison who was required to attend N.A. meetings or he “ ‘would
most likely be shipped off to a . . . higher security . . . prison[] and denied the
hope of parole.’ ” (Id. at p. 474.) In reversing the district court’s grant of the
defendant’s motion for summary judgment, the Seventh Circuit, like the
Second Circuit in Warner, noted the evidence in the record that illustrated
the “explicit religious content” of the particular N.A. group. (Id. at pp. 473-
474.) Specifically, the court referred to the N.A. brochure, which set forth the
twelve-step program that included at least five references to God. (Id. at
p. 474.) And the parties agreed that the N.A. meetings were organized
around the twelve-step principles. (Ibid.) In addition, the court discussed
Kerr’s affidavit in which he stated “he objected to dragging God’s name into
‘this messy business of addictions.’ ” (Ibid.) Kerr also declared that he
regarded “N.A.’s deterministic view of God to be in conflict with his own belief
of free will; more generally, he found it offensive to his personal religious
beliefs.” (Ibid.)
The federal cases relied on by Alcantar all have similar characteristics.
They involve an individual who specifically set forth his religious views and
claimed that attendance at a specific A.A. or N.A. group clashed with those
views. And the record in those cases contained an agreement between the
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parties regarding the religious nature of the subject program (see Inouye,
supra, 504 F.3d at p. 712) or considerable evidence that showed the
substantial religious component of the specific program (see Warner, supra,
115 F.3d at pp. 1070, 1075; Kerr, supra, 95 F.3d at pp. 473-474). And, despite
the explicit protests of the individuals, they were compelled to attend a
religious-based treatment program.
In contrast, here, Alcantar has not disclosed his religious beliefs. The
superior court gave him the option to do so in camera, but Alcantar declined
the invitation. Also, there is no evidence illustrating the extent to which the
program Alcantar is required to attend by way of his parole condition is
religious. Instead, at the sentencing hearing, Alcantar’s counsel represented
that “N.A. and A.A. meetings have been found in case law to include a
requirement that you accept a higher power. They are religious in that
nature.”4 He offered no evidence to support his assertion.5 Moreover, the
People have not conceded that the N.A. or A.A. group at issue here involves a
“substantial religious component.” (See Warner, supra, 115 F.3d at p. 1070;
Kerr, supra, 95 F.3d at pp. 473-474 [“explicit religious content”].) Rather, the
People have emphasized the “the challenged condition serves the secular
purpose of curbing drug and alcohol abuse to reduce recidivism, has a
principal effect of treating addiction that neither endorses nor inhibits
religion, and does not foster excessive government entanglement with any
religious ideology or institutions.” For these reasons, we do not conclude that
Inouye, Warner, and Kerr support Alcantar’s claim that the A.A./N.A.
condition here is facially unconstitutional.
4 Alcantar’s counsel did not refer to any case by name or provide a
citation during the sentencing hearing.
5 Alcantar’s counsel could have provided such evidence at the offered in
camera hearing.
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Perhaps realizing the lack of evidence in the record illustrating the
religious nature of the specific A.A. or N.A. group Alcantar would attend, he
represents that our high court has “implicitly recogniz[ed] that A.A. has a
religious element.” (See Walker v. State Bar (1989) 49 Cal.3d 1107, 1119,
fn. 4 (Walker).) We read no such recognition in that case. In Walker, the
petitioner challenged the Review Department of the State Bar’s
recommendation that he be disbarred from the practice of law in California.
(Id. at p. 1110.) A drug addiction caused the petitioner’s past misconduct,
and he claimed that he had “not drunk alcohol since 1981 or taken drugs
since 1986 and that God ha[d] recently delivered him from his addictions.”
(Id. at p. 1119.) However, the court noted that the psychiatrist that last
evaluated the petitioner did not have as optimistic a view of the petitioner’s
recovery and specifically suggested the petitioner receive “ ‘periodic, possibly
quarterly reports . . . made by his treating physician . . .’ ” (Ibid.) Despite the
psychiatrist’s recommendation, the petitioner refused to recognize the
importance of continued participation in A.A. or a drug rehabilitation
program. (Ibid.) Further, the petitioner asserted that his participation in a
rehabilitation program would offend his religious beliefs, but he never
specified what religious beliefs he held or how counseling would offend his
beliefs. And the petitioner conceded during oral argument that “he had no
religious objection to attending A.A. meetings.” (Id. at p. 1019, fn. 4.) Based
on this background, the court was “hesitant to dismiss his refusal to undergo
counseling as an example of his free exercise of religious beliefs.” (Ibid.)
Thus, contrary to Alcantar’s representation, the California Supreme Court
did not recognize a religious element of A.A. in Walker, but, instead,
concluded it should not consider a First Amendment challenge to the
petitioner’s refusal to participate in a rehabilitation program. As such,
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Walker does not support Alcantar’s argument that the specific A.A. or N.A.
program he would attend pursuant to his probation condition is religious in
nature.
Simply put, on the record before us, we do not find it necessary to
determine that a probation condition that requires a probationer to attend
A.A. or N.A. meetings is unconstitutional on its face. Below, the superior
court expressed concern about Alcantar’s personal religious beliefs and
appeared willing to accommodate them. However, Alcantar refused to
explain his religious beliefs or even claim that participation in the specific
A.A. or N.A. program would violate his beliefs. Further, Alcantar offered no
evidence to show the particular A.A. or N.A. meetings he would have to
attend involve a substantial religious component. It may be that Alcantar
will ultimately be proved correct that the Establishment Clause is violated
when a probationer is referred to A.A. or N.A regardless of the probationer’s
religious belief. However, we do not believe this is the case on which to make
such a sweeping constitutional proclamation.
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DISPOSITON
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
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