Patillo

Defendant pled no contest to one count of sale of cocaine (Health & Saf. Code, § 11352) and was placed on probation for a period of three years. Among the probation conditions was a requirement that he participate in an AIDS education program. On appeal defendant contends imposition of this condition was improper because he was convicted of selling, rather than using or possessing, illegal drugs. We hold that the AIDS education condition is within the sentencing court’s discretion where, as here, the record supports an inference that the probationer’s criminal conduct could expose the probationer or others to risk of HIV infection. We affirm.

Facts

According to testimony at the preliminary examination, in November 1990 defendant sold a rock of cocaine to an undercover officer on a Berkeley street corner. The probation officer’s report shows defendant’s involvement with illegal drugs may have begun as early as 1982, when he was first arrested for possession of cocaine for sale. In 1986 he was convicted of possession for sale and placed on probation. At that time he told the probation officer he had been freebasing cocaine and using marijuana. While on probation he tested…

I respectfully dissent.

I start with the established rule that imposition of a condition of probation not authorized by statute is an act outside of the court’s power. (People v. *1583 Kiddoo (1990) 225 Cal.App.3d 922, 926 [ 275 Cal.Rptr. 298 ]; People v. Burden (1988) 205 Cal.App.3d 1277, 1279 [ 253 Cal.Rptr. 130 ].) I find no statutory authorization for defendant’s challenged condition of probation.

Penal Code section 1001.10 1 provides no authority for imposition of an AIDS education condition of probation in this case. That statute mandates participation in an AIDS education program for persons placed on probation or granted diversion as a result of violating various enumerated offenses, including possession of designated controlled substances, if the conviction involves intravenous use of a controlled substance. Significantly, the statute does not include individuals convicted of transporting or selling narcotics. I am consequently guided by the well-known maxim inclusio unius est exclusio alterius; if the Legislature intended persons convicted of drug sales to be included with those who must attend an AIDS education program, it would have so stated.

Nor can my colleagues…

Defendant pled no contest to one count of sale of cocaine (Health & Saf. Code, § 11352) and was placed on probation for a period of three years. Among the probation conditions was a requirement that he participate in an AIDS education program. On appeal defendant contends imposition of this condition was improper because he was convicted of selling, rather than using or possessing, illegal drugs. We hold that the AIDS education condition is within the sentencing court's discretion where, as here, the record supports an inference that the probationer's criminal conduct could expose the probationer or others to risk of HIV infection. We affirm.

According to testimony at the preliminary examination, in November 1990 defendant sold a rock of cocaine to an undercover officer on a Berkeley street corner. The probation officer's report shows defendant's involvement with illegal drugs may have begun as early as 1982, when he was first arrested for possession of cocaine for sale. In 1986 he was convicted of possession for sale and placed on probation. At that time he told the probation officer he had been freebasing cocaine and using marijuana. While on probation he…