Filed 2/16/21 P. v. Profitt CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Siskiyou)

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Defendant Joshua James Profitt appeals a judgment following his no contest plea to the second degree murder of his infant son. As part of the plea, the court issued a protective order covering defendant’s wife and their other son. Defendant challenges the imposition of this protective order on the basis they were not victims of his crime. We will affirm the judgment because defendant forfeited this argument.

I. BACKGROUND

Defendant and his wife, M.P., took their baby, Ezra Profitt, to the hospital after he stopped breathing; he was pronounced dead at the hospital. The autopsy revealed severe trauma from blunt force and the death was ruled a homicide. Ezra also sustained fractured ribs two to three weeks prior to his death.

Sheriff deputies spoke with defendant and M.P. about the incident and they explained defendant was watching the victim while M.P. was at work. After initially lying about the circumstances, defendant admitted he put his hands on Ezra’s throat and squeezed to try and stop Ezra from crying. Defendant then hit Ezra in the abdomen three times with his knee because he was “fed up” with Ezra. Defendant said Ezra’s breathing became slower, he was not very alert, and his eyes were “cockeyed.” Defendant said his two-year-old son, N.P., was in the room at the time but did not think he saw defendant knee Ezra. Defendant also admitted to kneeing Ezra on a previous occasion that may have fractured his ribs.

M.P. told the probation officer that since Ezra’s death she “struggled with her mental health,” she and N.P. were in therapy, N.P. was having nightmares, and he was fearful when meeting new men. M.P. also said she was “disgusted and terrified as to what the defendant was doing with their children while she was at work.”

Defendant was charged with the murder of Ezra (Pen. Code, § 187, subd. (a))[1] and assault on Ezra, a child under the age of eight years, resulting in his death (§ 273ab, subd. (a)). Defendant pled no contest to the murder charge, specified as being in the second degree, and the other charge was dismissed. The plea form stated other terms included “Potential Protective Order.”

At sentencing, the court informed defendant’s counsel it intended to file a protective order and, without any discussion, defendant’s counsel said there were no objections. The court then sentenced defendant to 15 years to life for second degree murder and issued a criminal protective order for 10 years covering M.P. and N.P.

II. DISCUSSION

Defendant argues the criminal protective order is invalid because M.P. and N.P. were not victims of defendant’s crime. He concedes he did not challenge the protective order at sentencing, but contends we should still consider his appeal because the protective order is an unauthorized sentence and involves pure issues of law, or in the alternative, we should find he received ineffective assistance of counsel. We concur with the People that defendant’s failure to object has forfeited his challenge. We also find defendant has failed to show his counsel rendered ineffective assistance by not objecting.

Section 136.2, subdivision (i)(1), provides: “When a criminal defendant has been convicted of a crime involving domestic violence as defined in Section 13700 . . . the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim of the crime.” “Victim” is defined as any “person with respect to whom there is reason to believe that any crime . . . is being or has been perpetrated or attempted to be perpetrated.” (§ 136, subd. (3).) This term “must be construed broadly to include any individual against whom there is ‘some evidence’ from which the court could find the defendant had committed or attempted to commit some harm within the household.” (People v. Race (2017) 18 Cal.App.5th 211, 219; see People v. Beckemeyer (2015) 238 Cal.App.4th 461, 466.) “[A] court is not limited to considering the facts underlying the offenses of which the defendant finds himself convicted” but instead “may consider all competent evidence before it.” (Race, supra, at p. 220.)

A criminal defendant cannot argue for the first time on appeal that the court ordered unreasonable sentencing conditions. (People v. Scott (1994) 9 Cal.4th 331, 351.) A narrow exception is where the sentence is unauthorized: “a sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing.” (Id. at p. 354; see People v. Scott (2012) 203 Cal.App.4th 1303, 1310 [“This court and others have frequently held that directives not affecting the length of confinement fell within the ‘unauthorized sentence’ rubric so as not to be forfeited under” People v. Scott, supra, 9 Cal.4th 331].) But the unauthorized sentence exception “is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process.” (People v. Hester (2000) 22 Cal.4th 290, 295.)

The record indicates the protective order was a part of the plea agreement by listing it under other terms. Defendant benefitted from the bargain by having the murder charge lowered to second degree and the assault charge dismissed; he is estopped from challenging it now on appeal. The court also did not lack fundamental jurisdiction because it could still lawfully impose the criminal protective order under certain factual circumstances. This is not a purely legal question, as defendant contends. Whether M.P. and N.P. were “victims” was ultimately a factual determination requiring the trial court to review all competent evidence before it to determine whether defendant committed or attempted to commit a harm against them. “ ‘[Defendant] essentially argues only that the court exercised its otherwise lawful authority in an erroneous manner under the particular facts . . . . Traditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court.’ ” (People v. Scott, supra, 9 Cal.4th at p. 355.)

Anticipating our forfeiture conclusion, defendant argues his trial counsel rendered ineffective assistance by failing to object to the protective order. In order to prevail on a claim of ineffective assistance, defendant must show: (1) that “counsel’s performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms,” and (2) that he was prejudiced, “i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)

“When examining an ineffective assistance claim, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance.” (People v. Mai, supra, 57 Cal.4th at p. 1009.) “ ‘ “f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.” ([i]People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

The record is silent regarding defense counsel’s reasons for agreeing to the protective order. Defendant also has not met his burden of demonstrating there is no satisfactory explanation for his counsel’s actions. Because the protective order was part of the plea agreement, the most obvious satisfactory explanation is that defense counsel could have decided eliminating the assault charge and lowering the murder charge in exchange for his plea with the protective order was in defendant’s best interest.

III. DISPOSITION

The judgment is affirmed.

/S/

RENNER, J.

We concur:

/S/

BLEASE, Acting P. J.

/S/

HULL, J.

[1] Undesignated statutory references are to the Penal Code.