Filed 8/24/18 P. v. Ellis CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury convicted defendant Tremaine Anthony Ellis of discharging a firearm with gross negligence and making criminal threats. The trial court placed him on probation for five years with various terms and conditions, including that defendant obtain permission from his probation officer before being absent from his residence for 48 hours. The trial court also issued protective orders requiring defendant to stay away from the victim and two other witnesses.

Defendant now contends (1) the probation condition infringes on his constitutional right to travel; (2) if his challenge to the probation condition is forfeited for failure to object, his trial counsel rendered ineffective assistance; and (3) the trial court lacked jurisdiction to issue criminal protective orders protecting the two witnesses under Penal Code section 136.2, subdivision (i)(1).[1]

We conclude (1) defendant forfeited his challenge to the probation condition, (2) he has not established ineffective assistance, and (3) as issued, the challenged protective orders are unauthorized. We will strike the challenged protective orders and remand the matter for the trial court to consider whether a stay-away condition of probation is warranted under section 1203.1.

BACKGROUND

A.P., M. and B.B. were present at a party in the early morning hours on May 28, 2015. Defendant was B.B.’s former boyfriend, and during the party B.B showed A.P. a text message from defendant that stated: “ ‘Scary bitch, I’m gonna wait till shit cool down. I got something coming your way. You gonna learn to keep yo mouth closed, bitch.’ ” B.B. was afraid defendant would show up at the party.

At some point defendant did show up at the party and stood outside yelling. He appeared a second time about an hour later, when A.P. and M. were on the porch and B.B. was inside. Defendant walked up to the house holding a gun and fired six to eight shots in the air.

The jury convicted defendant of discharging a firearm with gross negligence (§ 246.3) and making criminal threats against B.B. (§ 422). The trial court referred the matter to the probation department for a sentencing report.

In its sentencing report, the probation department concluded defendant was “a danger to others if not imprisoned” and recommended defendant be sentenced to an aggregate term of two years eight months in state prison. After considering the probation report, the trial court placed defendant on probation for five years. The trial court imposed various conditions of probation, including that defendant was “not to remain away [from his] regular residence for more than 48 hours without first having secured permission from [his] probation officer.”

At sentencing, the trial court also issued protective orders pursuant to section 136.2, subdivision (i)(1), protecting B.B., A.P., and M. Defendant was served with those protective orders in court.

DISCUSSION

I

Defendant contends the probation condition infringes on his constitutional right to travel and there is no connection between his crimes and the length of time he was away from his residence. The People counter that defendant’s arguments do not present pure questions of law and they are forfeited because defendant failed to raise them in the trial court.

In general, the failure to make a timely objection to a probation condition forfeits the claim of error on appeal. (People v. Welch (1993) 5 Cal.4th 228, 234.) A defendant may assert for the first time on appeal whether a probation condition is facially overbroad, but only if the claim presents a pure question of law without reference to the particular sentencing record developed (or left undeveloped) in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 889; People v. Turner (2007) 155 Cal.App.4th 1432, 1435.) Here, defendant purports to assert a facial challenge, but his appellant’s opening brief does not explain why the language of the challenged probation condition is constitutionally invalid. He simply says the language is “patently and constitutionally unreasonable” because there is no connection to his crimes, thus reverting to an as-applied challenge barred by his failure to object in the trial court. His actual arguments do not present pure questions of law. Whether there is a rational connection between the probation condition and the present offenses and whether the present offenses point to the necessity of a probation condition cannot be determined “without reference to the particular sentencing record developed in the trial court.” (Sheena K., supra, 40 Cal.4th at p. 889.) Defendant’s failure to raise the issues in the trial court forfeits the challenge on appeal. (Ibid.)

II

Anticipating the possibility of forfeiture, defendant alternately contends his trial counsel was ineffective in failing to object to the probation condition.

To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel’s representation fell below an objective standard of reasonableness, and, but for counsel’s errors, there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [80 L.Ed.2d 674, 693, 698]; People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) If a defendant fails to establish either component, the ineffective assistance claim fails and we need not address the other component. (Strickland, at p. 697; People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)

In reviewing a claim of ineffective assistance, we accord great deference to trial counsel’s reasonable tactical decisions (People v. Weaver (2001) 26 Cal.4th 876, 925; People v. Freeman (1994) 8 Cal.4th 450, 484) and reverse “ ‘only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’ ” (People v. Frye (1998) 18 Cal.4th 894, 980, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 540.)

Here, the record on appeal does not affirmatively disclose that counsel had no rational tactical purpose for declining to object, given that the probation department concluded defendant was likely to be a danger to others and recommended a prison sentence but the trial court nevertheless decided to place defendant on probation with various terms and conditions. We cannot say that the challenged probation condition did not play some part in defense counsel’s tactical choices or the trial court’s decision not to imprison defendant. Moreover, defendant has failed to demonstrate he would have received a different result had counsel raised the objection.

III

Defendant further contends the trial court “lacked jurisdiction to issue criminal protective orders” for A.P. and M. under section 136.2, subdivision (i)(1). We agree the challenged protective orders are unauthorized, because A.P. and M. were not named as victims of defendant’s crimes.

Section 136.2, subdivision (i)(1) provides in that when a criminal defendant has been convicted of a crime of domestic violence, the court shall consider issuing an order restraining the defendant from any contact with the victim. (§ 136.2, subd. (i)(1).) “Victim” is defined as a natural person to whom there is reason to believe a crime as defined under the laws of the state is being or has been perpetrated or attempted to be perpetrated. (§ 136, subd. (3).) Under the plain language of section 136.2, subdivision (i)(1), a postconviction protective order is limited to restraining the defendant from contact with a victim. (People v. Delarosarauda (2014) 227 Cal.App.4th 205, 211 (Delarosarauda).)

In Delarosarauda, the defendant was convicted of assaulting his spouse. At sentencing, the trial court issued a criminal protective order under section 136.2, subdivision (i)(1) prohibiting the defendant from contacting his spouse, son, or stepdaughter for 10 years. (Delarosarauda, supra, 227 Cal.App.4th at pp. 208-209.) The Court of Appeal concluded section 136.2, subdivision (i)(1) did not authorize the protective order for the defendant’s son and stepdaughter because they were not victims of the crime for which defendant was convicted. (Delarosarauda, at p. 211.)

Here, defendant was convicted of making criminal threats and discharging a firearm with gross negligence. B.B. was the victim of defendant’s criminal threats, not A.P. or M. No victim was named in the charge for discharging a firearm in a grossly negligent manner. Indeed, no victim was necessary; the crime requires only that there be a significant risk of personal injury or death as a result of the firearm being discharged in a grossly negligent manner, not that anyone actually be harmed. (People v. Ramirez (2009) 45 Cal.4th 980, 986-987.) There is also no evidence in the record that either A.P. or M. were targeted or harmed in either of those crimes. (Delarosarauda, supra, 227 Cal.App.4th at p. 211.) A.P. and M. were simply two of many people present when defendant shot six rounds into the air. Under the circumstances, the protective orders issued to protect them are unauthorized.

As the People suggest, a stay-away order may be an appropriate condition of probation. Defendant was convicted for threatening B.B. because she failed to “keep [her] mouth closed.” Such conduct suggests he may be a person who would threaten or harm A.P. and/or M. for testifying against him. Accordingly, we will remand the matter to the trial court to exercise its discretion under section 1203.1.

DISPOSITION

The criminal protective orders protecting A.P. and M. are stricken. The matter is remanded to the trial court to exercise its discretion on whether to impose a similar stay-away order as a condition of probation under Penal Code section 1203.1. In all other respects, the judgment is affirmed.

/S/

MAURO, J.

We concur:

/S/

RAYE, P. J.

/S/

DUARTE, J.