P. v. Sandhu
Filed 7/12/07 P. v. Sandhu CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. AMINDER SINGH SANDHU, Defendant and Appellant. | A116468 (Solano County Super. Ct. No. FCR236659) |
Aminder Singh Sandhu was charged with one felony count of assault by means likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)[1]) and, in a negotiated disposition, pled no contest in exchange for probation with a 90‑day jail term, a firearm prohibition, and domestic violence probation terms ( 1203.097). He appeals the ensuing sentence, claiming abuse of discretion in the courts imposition of a warrantless search condition. We find no abuse of discretion and affirm.
I. THE BACKGROUND
A. The Offense
The presentence report states that at 5:35 p.m. on September 25, 2006: [P]olice responded to a domestic battery in progress, as witnesses indicated that [Sandhu] used his vehicle to block the victims vehicle from leaving the parking lot. It was further reported that [Sandhu] was choking the victim, and that the victim was screaming for someone to call the police because he was going to kill her.
Upon arrival, witnesses reported that [Sandhu] had fled the scene. Contact was made with the victim, as she was seated in her vehicle. She was visibly upset, crying and shaking. She had red marks on her neck and her voice was very weak and raspy, which were consistent signs of a choking injury. Upon questioning concerning the incident, the victim was very uncooperative and refused to talk to police. She indicated that she was not injured and refused medics. She would not say who attacked her and refused to answer any questions. She said she did not call police and could not provide any further information because she was afraid [Sandhu] would kill her. The victim left the scene and stated that she was moving to Seattle. Police noticed that her car appeared to be packed with her belongings.
A witness reported that [Sandhu] and [the] victim were residents of the same apartment complex as the witness. This witness heard the victim screaming for help and observed through her window that [Sandhu] had both of his hands around the victims neck, in a choking manner, as the victim sat in her car. The witness heard the victim screaming for someone to call police, stating hes going to kill me! The witness further indicated that she could tell the victim was actually being choked because the victims voice went from blood curdling loud to very raspy and muffled, as if she was losing her breath. This witness recalled seeing [Sandhus] vehicle parked nose‑in blocking the victims vehicle from leaving the parking lot, and was able to provide the license plate of [Sandhus] vehicle to dispatch.
[Around] 7:00 p.m., police observed [Sandhus] vehicle parked in front of the victims apartment. Police noticed [Sandhu] walking to his vehicle, and approached him. [He] admitted that he was in an argument with his live-in girlfriend, the victim, but denied any physical altercation. While [Sandhu] was seated in the back of the police patrol car, another witness came and indicated that he also observed [Sandhu] with his left arm in an arm bar, which is a submissive hold, around the neck of the victim in a choking manner. This witness, along with other witnesses confirmed that [Sandhu] was the person involved in this incident. [Sandhu] continued to deny any physical altercation, and was subsequently booked into jail.
B. The Sentencing
The report recommended probation terms including no possession of weapons and submission to warrantless search and seizure of his home, person and effects anytime. It summarized: The instant offense involved [Sandhu] choking his live‑in girlfriend. [His] behavior posed a serious risk of harm and is potentially dangerous if there had been no intervention from witnesses who called police. [Sandhu] also has two prior failures to appear indicated on his DMV record. However, given that [he] has no prior record of criminal conduct, he is being respectfully recommended for probation at this time. . . . [] . . . As the instant offense involved violent behavior associated with an inability to control anger, it is recommended that [Sandhu] complete domestic violence class as a condition of probation.
At the hearing, prosecutor Terry Ray submitted on the recommendation, and defense counsel Damien Spieckerman spoke as follows. We would just like to object for the record, Your Honor, on a couple of terms suggested by Probation.
One of the terms is the drug testing. Your Honor, there is no indication in the offense, nor in the probation conversation with Mr. Sandhu he has any history or that drugs were used and had any relevancy to the charge.
Also we would like to object to the weapons. We understand there has to be a firearm [sic] because its a felony, but general weapons prohibition, there is no weapon used in the offense that Mr. Sandhu was either charged with or pled to.
Finally, Your Honor, search and seizure. We would ask that the Court not impose the search and seizure requirement. I realize thats often done, but
The Court: There has to be some reason for it. Maybe Ms. Ray can address that.
Mr. Spieckerman: Thank you.
The Court: There was nothing in the probation report as to drugs or alcohol.
Ms. Ray: I agree with those comments.
The Court: All right. How about the other comments?
Ms. Ray: Well, I think search and seizure is one of the contracts that is entered into when somebody gets on probation. I mean the police need to be able to determine if he has weapons, if hes going to be on a no weapons term, he cant by law carry a firearm. So, I think a police officer or probation officer should be able to search him for those types of items.
If the Court wants to limit the search and seizure, the People have no objection.
The court did not impose the alcohol term but did impose search and firearms terms, rejecting a broader prohibition of dangerous or deadly weapons of any kind, as urged in the probation report. The court stated: You will submit your person, real or personal property, automobile, any object under your control to search and seizure. This can be done in or out of your presence, with or without your consent, any time of the day or night by any peace officer, probation officer, with or without notice to you, probable cause or warrant. [] You will not own or have in your possession, custody or control any firearm[;] this will include ammunition for a firearm.
II. DISCUSSION
Sandhu does not challenge the scope of the search term but, rather, that it was imposed at alli.e., that it was unreasonable. The People defend the condition and argue at the threshold that Sandhu has forfeited his claim by not raising it properly below under People v. Welch (1993) 5 Cal.4th 228, 237.
We deem the issue preserved. The Peoples argument is that defense counsel did not object based on unreasonableness but, rather, only invoked the courts discretion not to impose the term, counsel saying: We would ask that the Court not impose the search and seizure requirement. I realize thats often done, but (italics added). An objection, however, is sufficient if it fairly apprises the trial court of the issue and is deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented. (People v. Scott (1978) 21 Cal.3d 284, 290, citations omitted.) The People stress that the defense asked the court not to impose the search term, but this ignores that this was one of three terms addressed after counsels preface, We would just like to object for the record . . . on a couple of terms (italics added). Thus, the objection implicitly raised reasonableness. In any event, the court understood the issue, noting that there had to be some reason for the search term and asking the prosecutor to speak to that issue. The claim is preserved.
Courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to section 1203.1. The court may impose and require such reasonable conditions as it may determine are fitting and proper for the reformation and rehabilitation of the probationer. The courts discretion, although broad, is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, probation conditions which regulate conduct not in itself criminal must be reasonably related to the crime of which the defendant was convicted or to future criminality. As with any exercise of discretion, the court violates this standard when its determination is arbitrary or capricious or exceeds the bounds of reason, all of the circumstances being considered. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.)
Sandhu observes that his crime did not involve a firearm or other weapon, and he stresses that the court, while imposing a firearm prohibition, did not impose a broader no‑weapons term recommended in the presentence report. He stresses, also, that the crime took place in a public place, a parking lot, that the victim declined medical attention and said she was not hurt, that he has family support and ties, and that if he continues to live with the victim,[2] her property in shared areas of their residence would also be subject to search (citing People v. Woods (1999) 21 Cal.4th 668, 675-676).
These arguments are unavailing. The crime having occurred in a public parking lot did not diminish this being a crime of domestic violence that, a court could reasonably infer, might just as easily have occurred in a residence where the risk to the victim would be magnified. Sandhus observation that he might continue living with her only confirms that ongoing risk. The fact that the victim told police she was unharmed and declined medical help ignores the facts that she was heard screaming for help, was seen being strangled, had red marks on her neck and a weak and raspy voice to show injury, and was very uncooperative and refused to talk to police because she was afraid Sandhu would kill her. Her fear was highly justified on the facts, where no weapons in the sense of firearms or instrumentalities were used, but there had been a potentially fatal use of brute strength and bare hands. As for family support, the court could reasonably worry that Sandhus stated remorse for having generated more stress than necessary and having affected his entire family seemed selective in downplaying the problem that he had physically harmed the victim. His letter to the court likewise spoke primarily of remorse for causing stress and harm to family and friends. His letter mentioned having wronged the victim but did not address the physical danger he caused.
Of course, Sandhu does not contest the reasonableness of the firearms prohibition and, we suppose, would have a hard time directly doing so since Firearm Prohibition was an express term of his plea bargain. Thus, his distinction between firearm and general weapons prohibitions is largely beside the point. The existence of a firearms prohibition would be difficult or impossible to effectively monitor, especially in a home, unless he agreed to be searched there.
In the full circumstances, and since Sandhu does not contest the firearms term, the search term is reasonable (cf. People v. Bauer (1989) 211 Cal.App.3d 937, 943-944).
No abuse of discretion is shown.
III. CONCLUSION
The judgment is affirmed.
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Richman, J.
We concur:
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Kline, P.J.
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Lambden, J.
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[1] All further section references are to the Penal Code.
[2] The prospect of further cohabitation is supported by a presentence report statement that Sandhu had moved in with his parents since the incident but expects to move his children to Vacaville to live with him and his girlfriend when the next school year resumes (Italics added.)
