Filed 3/21/17 P. v. Hassett CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

ROBIN HASSETT,

Defendant and Appellant.
D069839



(Super. Ct. No. SCD263135)

APPEAL from a judgment of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. Affirmed as modified.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Robin Hassett guilty of one count of using tear gas, not in self-defense, in violation of Penal Code section 22810, subdivision (g). The court then declined to reduce the charge to a misdemeanor pursuant to section 17, subdivision (b), and sentenced her to probation for a term of three years. On appeal Hassett argues the prosecutor committed misconduct, the court erred in refusing to reduce the charge to a misdemeanor, and a condition in the terms of her probation that requires her to obtain approval from her probation officer as to her residence and place of employment is unconstitutionally overbroad. We agree the probation condition is unconstitutionally overbroad, remand the matter with instructions to the superior court to strike the condition from the terms of Hassett's probation, and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
It was approximately 2:00 one morning when Feysal A., a taxicab driver, picked up Hassett for a fare. Hassett walked up to the cab without any assistance and sat in the front passenger seat. She was carrying a small cloth purse that could be used as a backpack and placed it on her lap when she sat down.
Feysal drove Hassett to her apartment complex. When they arrived, Hassett told Feysal she planned to pay the fare with a $100 bill that was in her apartment. She asked him to follow her to the apartment to get the bill but he informed her he was not allowed to follow customers to their homes. To make sure she returned, Feysal suggested that Hassett leave her backpack with him while she went to retrieve the money. When she hesitated, Feysal explained that there was an identification number on the cab and Hassett could call the cab company or the police if there were any problems. Hassett eventually left the backpack in the cab and walked toward her apartment complex.
Instead of retrieving the money, Hassett called the cab company to report that she was disabled, that Feysal had refused to come up to her apartment to get her money, and that he had robbed her by forcefully grabbing the backpack when she tried to leave. The company representative asked Hassett if she had paid her fare. When Hassett replied she had not, the representative told her that Feysal did not have to follow her to her apartment and had not robbed her, but was just trying to get the money he was owed.
Unhappy with this response, Hassett called 911 and explained what had happened. Like the cab company representative, the 911 operator similarly explained that Feysal had not robbed her and was probably just trying to make sure he was paid. The operator also informed Hassett that, since this was not an emergency, she would need to call the nonemergency line if she wanted to request assistance from a police officer. Hassett responded, "okay, then I'll take the matter in my own hand" and hung up.
Meanwhile, the cab company called Feysal, who was still waiting in the cab, to inquire about Hassett's complaint. Feysal was surprised by the complaint because he had seen no indication Hassett was disabled. He told the dispatcher he was just waiting for Hassett to pay the fare. The dispatcher informed Feysal that Hassett had called the police. Concerned that his shift was ending and Hassett was not going to pay the fare, Feysal also called 911. The 911 operator explained that Feysal needed to call the nonemergency line. He tried several times but the line was busy on each attempt, so he called 911 again approximately 20 minutes later. The 911 operator told Feysal it still was not an emergency. In an effort to get the police to respond, Feysal claimed Hassett had kicked his car and broken a window, but he admitted shortly thereafter that the window was not broken. The dispatcher again directed Feysal to call the nonemergency line.
Feysal did not want to leave because he still had Hassett's backpack, so he waited in the cab and continued calling the police nonemergency line. Hassett went to her car across the parking lot and, unbeknownst to Feysal, retrieved a canister of pepper spray from the glove compartment. She then approached Feysal's cab and knocked on the window. Feysal rolled down the window and turned his head towards Hassett, expecting her to pay him. Instead, Hassett sprayed him in the face with the pepper spray. Feysal poured a bottle of water on his face, drove a short distance away, and called 911.
Police arrived on the scene, spoke with Feysal, and made contact with Hassett. When the first officer approached Hassett, she told him she had the pepper spray in her pocket and said, "I've been robbed and I pepper sprayed someone." When a female officer approached to conduct a search, Hassett reported that Feysal had forcefully grabbed her backpack, adding, "so I got the pepper spray and sprayed him."
Hassett was charged with one count of using tear gas, not in self-defense, in violation of section 22810, subdivision (g). At trial, Hassett testified she acted in self-defense after Feysal backed the cab up towards her, causing her to fall. She claimed she sprayed him with the pepper spray when he got out of the cab and started walking towards her.
After the jury returned a verdict of guilty, Hassett made a motion to reduce the charge to a misdemeanor pursuant to section 17, subdivision (b). The court denied the motion and placed her on probation for a period of three years. One of the terms of Hassett's probation required her to obtain approval from the probation officer as to her residence and employment.
DISCUSSION
1. Prosecutorial Misconduct
On cross-examination, the prosecutor asked Hassett if she told police officers at the scene that Feysal had backed the cab toward her or approached her. Hassett admitted she had not. The prosecutor then continued:
"Q. In fact, the first time you've told that story was yesterday, correct?

"A. Yes, to --

"Q. You've never told law enforcement that story?

"[Hassett's counsel]: Objection. Doyle[ ] error.

"[The court]: Overruled.

"[The witness]: Yes, to you. Yes, to my lawyer."

The prosecutor returned to this theme during closing argument, contending Hassett was not credible because her story at trial was not the same as the story she told the police immediately after the incident: "Her story doesn't make sense. And once this happened when she almost got [run] over by a taxi cab, why did she wait five months to tell her story? Why didn't she get help immediately after? Why didn't she tell [the police officer at the scene] that she had been hurt? The reason is because that didn't happen. The story was contrived for trial, ladies and gentlemen, and it's simply not the truth."
Hassett asserts the prosecutor's inquiries were prejudicial misconduct because they improperly suggested Hassett's failure to disclose her story to law enforcement before trial made her less credible. In response, the People argue the prosecutor appropriately highlighted inconsistencies between the statements Hassett made to the police prior to her arrest and her testimony at trial.
Prosecutors have wide latitude to argue their cases vigorously, making fair comment on the evidence, the credibility of the witnesses, and all reasonable inferences therefrom. (People v. Hill (1998) 17 Cal.4th 800, 819.) Improper argument, however, constitutes prosecutorial misconduct. And certain types of misconduct can infect the trial with such unfairness as to make the conviction a denial of due process under the federal Constitution. (People v. Tully (2012) 54 Cal.4th 952, 1009; People v. Champion (2005) 134 Cal.App.4th 1440, 1447.) In these circumstances, the conviction must be reversed unless the error was harmless beyond a reasonable doubt. (Champion, at p. 1453; see People v. Quartermain (1997) 16 Cal.4th 600, 621.)
To determine whether such an error requires reversal, the appellate court considers "how the remarks would, or could, have been understood by a reasonable juror" in the context of the entire argument. (People v. Benson (1990) 52 Cal.3d 754, 793.) The court will not infer that the jury drew the most, as opposed to least, damaging meaning from the disputed comments; instead, the defendant must establish a reasonable likelihood that the jury understood and applied the comments in an improper manner. (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Spector (2011) 194 Cal.App.4th 1335, 1403.)
Of particular importance here, a prosecutor may violate a defendant's right to remain silent, and thus the due process clause of the Fourteenth Amendment, by commenting on or questioning the defendant's failure to disclose exculpatory facts or evidence after the arrest and subsequent Miranda warning. (Doyle v. Ohio, supra, 426 U.S. at pp. 619-620.) Based on this principle, California courts have held it is error, although not always reversible error, for a prosecutor to suggest that an alibi was not credible because the defendant failed to disclose it to the police following the defendant's arrest. (See People v. Galloway (1979) 100 Cal.App.3d 551, 556-557 [error to suggest alibi was fabricated because defendant did not disclose it to anyone prior to trial]; People v. Reese (1963) 220 Cal.App.2d 143, 146 [error to argue in closing that defendant did not act like an innocent man because he did not disclose his alibi prior to trial]; People v. Lindsey (1988) 205 Cal.App.3d 112, 116-117 [error to argue defendant's alibi was not believable because defendant did not disclose it until the day of trial despite knowledge of judicial system].) However, a prosecutor does not commit misconduct by commenting on the defendant's silence or inconsistencies in statements the defendant made prior to arrest, or by using such pre-arrest statements or silence to impeach the defendant at trial. (Jenkins v. Anderson (1980) 447 U.S. 231, 238-239; People v. Free (1982) 131 Cal.App.3d 155, 165; People v. Burton (1981) 117 Cal.App.3d 382, 385-387.)
Here, Hassett made voluntary statements to the police officers at the scene of the incident before she was arrested, and it was plainly appropriate for the prosecutor to point out the inconsistencies between those statements and her testimony at trial. Hassett asserts the prosecutor went further and committed misconduct by commenting on her postarrest silence when asking whether she was revealing certain details of her story for "the first time" at trial and "never" before trial, and when arguing the jury should consider why Hassett waited "five months" to disclose those details. We agree that the prosecutor's use of the terms "first time," "never" and "five months" improperly broadened the inquiries to include reference to Hassett's postarrest silence. (See People v. Galloway, supra, 100 Cal.App.3d at pp. 556-557.) We conclude, however, that these isolated references were insignificant when considered in the context of the surrounding questions and thus did not constitute reversible error.
The prosecutor asked the two disputed questions in the context of and immediately following a series of questions regarding the inconsistencies in Hassett's voluntary pre-arrest statements to the police. Although the phrasing of the two questions was broad enough to include the time between Hassett's arrest and trial, her response—"Yes, to you. Yes, to my lawyer."—was not particularly meaningful and the prosecutor did not follow up or pursue the topic further. Similarly, the prosecutor's inquiry during closing argument as to why Hassett waited "five months to tell her story" was in the context of a lengthy discussion regarding the inconsistencies between Hassett's story at trial and her voluntary pre-arrest statement. The prosecutor directly followed that single overbroad question with a series of additional questions that focused on Hassett's conduct immediately following the incident and prior to her arrest, asking why she did not seek help or inform the police that she was hurt after having allegedly fallen to the ground. Considered in this context, it is unlikely the jury inferred from a few overbroad references that Hassett had an obligation to disclose her story to law enforcement between the time of her arrest and trial. Certainly that was not the focus of the prosecutor's argument.
Hassett relies on People v. Lindsey, supra, 205 Cal.App.3d 112 and People v. Reese, supra, 220 Cal.App.2d 143, to assert the prosecutor's statements amounted to reversible error, but both cases are readily distinguishable. As an initial matter, the arguments in Lindsey and Reese concerned the failure to disclose an alibi, with the prosecutor urging that the defendant should have mentioned his alibi at some point between his arrest and the trial. (Lindsey, at p. 114; Reese, at p. 145.) Unlike this case, there was no opportunity for legitimate commentary on inconsistencies in the defendant's pre-arrest statements. (Lindsey, at p. 114; Reese, at p. 145.) Further, the prosecutor in Lindsey focused on the defendant's postarrest silence at length, arguing it was "inconceivable" that someone knowledgeable about the law would allow his or her client to sit in jail for five months and not come forward with proof that they did not commit the crime. (Lindsey, at pp. 115-116.) Similarly, the prosecutor in Reese made a lengthy argument about the defendant's failure to inform law enforcement of his alibi prior to trial, and even then the court noted the argument might not have been so prejudicial as to require reversal had there not been additional instances of prosecutorial misconduct. (Reese, at p. 146.) By contrast, here the prosecutor made only three passing references to Hassett's postarrest silence and each reference was in the context of pointing out the inconsistencies in her voluntary pre-arrest statements.
Hassett contends the references in this case were particularly significant because her credibility was a key issue at trial, as it was her word against Feysal's and there was evidence Feysal had lied to the 911 operator about Hassett breaking his window. However, because the prosecutor's argument properly focused on the inconsistencies between Hassett's voluntary pre-arrest statements and her testimony at trial, those actual inconsistencies were likely far more significant to the jury in determining Hassett's credibility than the more limited reference to Hassett's failure to disclose her defense at any time before trial. We thus conclude that the overbreadth in the prosecutor's comments, although misconduct, was harmless beyond a reasonable doubt. (See, e.g., People v. Farris (1977) 66 Cal.App.3d 376, 389-390 [even if statement was improper under Doyle, error was harmless beyond a reasonable doubt where the court permitted the prosecutor to ask the defendant only once if he told anyone about his defense at any time].)
2. Hassett's Motion to Reduce the Conviction to a Misdemeanor
Hassett next asserts the court abused its discretion in declining to reduce her conviction from a felony to a misdemeanor. Section 17, subdivision (b) gives the trial court discretion to reduce certain felonies, often referred to as "wobblers," to misdemeanors. (§ 17, subd. (b); People v. Douglas (2000) 79 Cal.App.4th 810, 812-813.) The statute does not specify the criteria a court should consider, but California appellate decisions have indicated the pertinent factors include those relevant to sentencing decisions, such as the circumstances of the offense, the defendant's appreciation of and attitude toward the offense, and the defendant's character as evidenced by his or her behavior and demeanor at the trial. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978, superseded by statute on other grounds as indicated in People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) We review the court's ruling on a motion to reduce a felony to a misdemeanor pursuant to section 17, subdivision (b) for an abuse of discretion and give deference to the superior court's weighing of the relevant factors. (Alvarez, at p. 981.)
Here, a jury convicted Hassett of using tear gas, not in self-defense. Although Hassett claimed to have acted in self-defense, she told the 911 operator that she was going to take matters into her own hands before spraying Feysal in the face with pepper spray. In finding her guilty, the jury indicated it did not believe she was acting in self-defense. Further, Hassett had a criminal history that included other violent or potentially violent crimes such as battery, possession of an illegal knife, brandishing a fake gun, and fighting in public. Although none of these prior offenses resulted in a felony conviction, they were sufficiently serious in nature and, along with her conviction in the present case, suggested an escalating propensity towards violence. Based on the evidence at trial and Hassett's prior criminal history, the trial court found it was not appropriate to reduce the charge to a misdemeanor. As the court's ruling was consistent with the record and the relevant factors, we cannot say the court abused its discretion in making that determination.
3. Probation Conditions Concerning Residence and Employment
Hassett asserts the court erred by imposing a probation condition that required her to obtain approval from her probation officer as to her residence and place of employment. Probation conditions that unduly restrict the exercise of constitutional rights are unconstitutionally overbroad unless narrowly tailored to address a compelling state interest such as public safety or rehabilitation. (In re Byron B. (2004) 119 Cal.App.4th 1013, 1016; People v. Mason (1971) 5 Cal.3d 759, 768.) California courts have thus invalidated probation conditions that gave a probation officer unlimited discretion to approve a defendant's residence and place of employment. (People v. Bauer (1989) 211 Cal.App.3d 937, 944-945 [residence]; People v. Burden (1988) 205 Cal.App.3d 1277, 1280-1281 [employment].)
The People concede the condition is unconstitutionally overbroad with respect to Hassett's residence, but argue the state has a reasonable interest in approving Hassett's place of employment to prevent future crimes. We disagree. The use of pepper spray precipitating Hassett's conviction was in no way related to her employment, and there is nothing to indicate there is a risk that Hassett would use pepper spray in connection with any future employment. Further, even if the state did have some interest in preventing future crime, the employment condition is not narrowly tailored as it does not specify particular types of employment that Hassett can or cannot accept, but instead defers entirely to the discretion of the probation officer. Such unfettered discretion is no more appropriate in the context of Hassett's employment than it is in the context of her residence. We therefore conclude both conditions are unconstitutionally overbroad.
Anticipating invalidity, the People also request that, instead of striking the condition, we amend it to require that Hassett provide written notice 24 hours prior to any change of residence or employment. However, condition 6, subdivision (j) of Hassett's probation already requires Hassett to report any change in address or employment to her probation officer within 72 hours. The state does not make any compelling argument as to why it is necessary for the probation officer to have prior knowledge of Hassett's change in residence or employment, particularly since the probation officer will no longer have authority to disapprove the change. While it may be prudent for Hassett to provide notification of any such change as soon as possible to avoid a situation in which the probation officer finds a given change problematic and seeks the intervention of the court after the fact, we see no justification for imposing that additional requirement on Hassett as a condition of her probation.
We therefore conclude that condition 10, subdivision (g), requiring Hassett to obtain approval from her probation officer as to her place of employment and residence, is unconstitutionally overbroad. We decline to amend the condition, and instead instruct the superior court to strike the condition in its entirety.
DISPOSITION
The matter is remanded with instructions to the superior court to modify the order granting formal probation, striking condition 10, subdivision (g) in its entirety. In all other respects, the judgment is affirmed.



DATO, J.

WE CONCUR:



McCONNELL, P. J.



BENKE, J.