P. v. Shanklin

Filed 4/4/07 P. v. Shanklin CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Stephanie Sautner, Judge. Affirmed.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Paris Shanklin appeals from a judgment entered after the trial court found him guilty of attempted burglary (Pen. Code,  664, 459).^[1] Appellant contends that the trial courts imposition of a protective order as a condition of probation was improper because there was no evidence to support a good cause belief that harm to any witness was likely to occur. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Viewing the record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following.

On September 14, 2005, Linda Anderson (Linda) lived with her brother Robert Block (Robert) in an apartment complex located on Ramona Avenue in Hawthorne (the Anderson residence). Robert and Linda left for work at 7:00 a.m., and 7:15 a.m. respectively. Between 7:00 a.m. and 7:30 a.m., Carlos C. was waiting on his porch for a ride to school. From his porch he could see the Anderson residence, which was about 70 feet away. Carlos C. and his mother, Luiz C., saw two black males walk past their house and knock on the front door of the Anderson residence. Appellant wore a white shirt and a red and white cap. The other man wore black pants and a blue or black shirt. When no one opened the door, appellant, wearing black gloves, went to the side of the apartment and removed the window screen, while the other man acted as a lookout. The men then walked down an alley as Carlos C. was picked up by his carpool. Luiz C. saw Karyna Prado (Karyna) come out of her house next to the Anderson residence to empty trash, and react with fright when she saw the men. Jaime C., Carloss brother, testified that he called the police.

Karyna and Jorge Prado (Jorge) lived next door to the Anderson residence. That morning Karyna went to the side of the house to put trash in the garbage cans. She was surprised to see three men^[2]walking on top of the cinder block fence between her house and the Anderson residence. Appellant was in the front, walking toward her, and she made eye contact with him for about five seconds. Karyna went back inside the house, told her husband that some men were trying to break in on the side of the house, and called her parents who lived in the house behind her. She thought that the men were heading toward her parents house. Jorge went to the backyard and saw a man wearing a black sweater standing on the fence. When Jorge asked what he was doing there, the man said he had dropped his keys in Jorges backyard. He then jumped down and began digging in the dirt, but Jorge noticed he already had keys in his hand. The man then jumped back up on the fence and ran to the alley, where Jorge heard him speaking to somebody. Karyna and Jorge went to their front porch. Karyna made eye contact with appellant who was walking directly in front of her house.

Linda returned to her apartment at 8:40 a.m. A neighbor knocked on her door and she went outside and noticed that the screen door had been removed from her brothers bedroom window. The window was opened slightly more than it had been when she left.

At 8:44 a.m., Hawthorne Police Department Officers Joel Romero and Carlos Gutierrez responded to a report of a residential burglary describing the suspects as a Black male dressed in a white shirt, and wearing a white baseball cap, and another Black male wearing a black shirt and black pants. The officers apprehended appellant, conducted a patdown search, and found a green pillow case in his rear pocket and a set of gloves in his front pocket. Luiz C. saw appellant walking to the front of Jorge and Karynas house and told the dispatcher that appellant was the man she saw knocking on the door. Karyna identified appellant as one of the men on the fence to the officers. Jorge and Karyna described the suspects to the police. Jorge, Karyna, Luiz C., Carlos C., and Jaime C. also testified at trial.

After finding appellant guilty of attempted burglary, the trial court sentenced appellant to probation with various terms and conditions, including seeking and maintaining training, schooling, and employment. At one point, the People reminded the trial court of a protective order. The trial court stated: Yes. Im sorry. Theres also a protective order that I have before me. That is also a condition of probation. You are not to come within a hundred yards of any witness in this case, including Linda Anderson, [Luiz C.], Carlos C., Jaime C., Jorge Prado and Karyna Prado. And also, youre to stay away from 11513 Ramona Avenue and 11507 Ramona Avenue, and not come within a hundred yards of those locations as a condition of your probation.

DISCUSSION

I. Whether the trial court erred in imposing a protective order as a condition of probation

1. Appellant waived by failing to object

Appellant first contends that he did not waive his right to challenge the imposition of the restraining order as a probation condition. We disagree. Failure to object to probation conditions under consideration waives a claim on appeal. (People v. Welch (1993) 5 Cal.4th 228, 235 (Welch).) The exception to the objection requirement, which does not apply here, involves pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court. (Id. at p. 235.) Accordingly, appellant has waived his right to object to the imposition of the restraining order on appeal, but even so, we conclude that the judgment should be affirmed on the merits.

2. The applicable code provisions

A. Section 136.2, subdivision (a)

Appellant contends that the record and appellants criminal history do not support a good cause belief that harm to the victim or witnesses was likely to occur as required under section 136.2, subdivision (a), which provides in pertinent part, that upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, any court with jurisdiction over a criminal matter may issue a restraining order. He urges that the evidence was insufficient to support imposition of the restraining order as a condition of probation.

B. Section 1203.1, subdivision (j)

On the other hand, the People urge that the applicable code section is 1203.1, subdivision (j), which allows the trial court to impose . . . reasonable conditions, as it may determine are fitting and proper to the end that justice may be done . . . The People contend thatthe trial court did not abuse its discretion in imposing the restraining order under that section.

C. The applicable section

The trial court granted probation despite the probation officers recommendation in favor of incarceration and against probation. It also imposed a protective order. At the sentencing hearing, the trial court did not give reasons for the imposition of the protective order, nor did it indicate under which code section the protective order was imposed. Also, the record does not contain the protective order itself. The minute order, however, indicates that the order was imposed under section 136.2, a point that neither party raises.

Appellant urges that the trial courts silence as to the code section under which the protective order was issued implies that it was issued pursuant to section 136.2, subdivision (a). However, we need not reach that conclusion. The oral pronouncement of judgment controls the minute order (People v. Mitchell (2001) 26 Cal.4th 181, 185-186). Because the oral pronouncement of judgment is silent as to which code section applies, we do not presume, as appellant urges, that the trial court intended to issue the order under section 136.2, subdivision (a). Rather, we view the discrepancy as a conflict between the minute order and the oral pronouncement of judgment, and therefore the oral pronouncement controls. Because all intendments and presumptions are indulged to support the judgment or order of the trial court as to which the record is silent (People v.Alvarez (1996) 49 Cal.App.4th 679, 694), we presume that the trial court issued the protective order pursuant to the broad discretion of section 1203.1, subdivision (j).

Accordingly, appellants citation to People v. Stone (2004) 123 Cal.App.4th 153 does not assist him. In that case, unlike here, it was undisputed that the trial court proceeded under section 136.2, subdivision (a) to impose restraining orders on the defendant. We concluded that the three-year restraining orders transcended the authorization of section 136.2 because they were not limited to the pendency of the criminal proceeding and could not have been a condition of probation because the defendant was not given probation. (People v. Stone, supra, at p. 160.) Nor was there evidence that the witnesses were ever harmed or intimidated after they became witnesses or that such future harm would occur by the defendant. (Id. at pp. 160-161.)

3.The trial court did not abuse its discretion under section 1203.1, subdivision (j)

When granting probation, the trial court has broad discretion in imposing conditions. ( 1203.1, subd. (j); Cal. Rules of Court, rule 4.414.) The trial court has the general authority to impose any reasonable condition that it may determine is fitting and proper to the end that justice may be done. ( 1203.1.) Probation conditions that regulate conduct which is not itself criminal must be reasonably related to the crime of which the defendant was convicted or to future criminality. (People v. Welch, supra, 5 Cal.4th at pp. 233-234.) A probation condition must serve a purpose specified in section 1203.1. Section 1203.1, subdivision (j) provides that the trial court may impose other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . .

The trial court can regulate or prohibit noncriminal conduct in appropriate circumstances and can fashion conditions of probation that impinge on a defendants constitutional rights. (People v. Bianco (2001) 93 Cal.App.4th 748, 752 [probation condition was valid which prohibited defendant from using or possessing marijuana, even though his physician recommended medical use of marijuana to control defendants pain].) Generally, a condition of probation will not be invalidated unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. [Citation.] (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent) [superseded on another ground as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-295].) Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality. (Lent, supra, at p. 486.)

We conclude that the trial court acted within its discretion pursuant to section 1203.1, subdivision (j) by issuing a protective order as a condition of probation. With respect to the three factors set forth in Lent, supra, 15 Cal.3d at page 486, we first find the order relates to the underlying crime of attempted burglary, entering an inhabited apartment. Appellant attempted to burglarize the Anderson residence and was arrested in front of the Prado residence. Therefore, those locations were connected to the underlying crime. Here, the witnesses and victims, including minor children all living in the same neighborhood, testified at trial and identified appellant as either one of the perpetrators or one of the suspects being arrested. The trial court noted that the case was unusual because there were a lot of different witnesses who saw pieces of a puzzle; and the court found the Peoples witnesses, especially the [C.] family, to be quite credible and observant. The record supports the imposition of a protective order on the basis that the children, especially, were likely to be frightened or threatened by a reappearance of appellant in the neighborhood. Moreover, there is no evidence that appellant lived in the immediate neighborhood, or was known in the neighborhood, or had any business in the neighborhood. The probation report indicates that appellant lived at an address in Hawthorne on South Grevillea, but there is no evidence of the distance between his residence and the neighborhood in question. Thus, the restriction appears reasonable.

Second, while the restricted conduct was not in itself criminal, the conduct is reasonably related to future criminality and to the crime for which appellant was convicted. Thus, the probation condition prohibiting appellant from coming within the presence of Linda and the other witnesses, as well as the two residences was valid under Lent, supra, 15 Cal.3d at page 486.

Third, the protective order was also directed to future criminality. The crime committed was brazen and committed in broad daylight. Indeed, after two of the men left the yard and one of the men was questioned by Jorge, appellant still loitered nearby, walking in front of the Anderson residence and making eye contact with Karyna.

Under the circumstances, we conclude that the imposition of the protective order was not arbitrary, capricious, or exceeded the bounds of reason. (Welch, supra, 5 Cal.4th at p. 234.) The trial court did not abuse its discretion in imposing the probation condition of which appellant complains.

II. Ineffective assistance of counsel

Appellant contends that his counsel provided ineffective assistance of counsel by failing to object to the probation condition.

To succeed on a claim of ineffective assistance of counsel, the defendant must show that his or her counsels representation fell below an objective standard of reasonableness, such that there is a reasonable probability that but for counsels unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686.)

Even had appellants counsel objected, the trial court acted well within its discretion in imposing the restraining order. Therefore, because there was no reasonable probability that but for appellants counsels failure to object, the result of the proceeding would have been different, appellant cannot succeed on his claim of ineffective assistance of counsel.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

__________________, P. J.

BOREN

__________________, J.

CHAVEZ

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Some of the witnesses saw only one or two of the three men.