Filed 9/6/18 P. v. Andrade CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Imperial County, Diane B. Altamirano, Judge. Affirmed.

Arthur B. Martin, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

An information charged defendant Francisco Manuel Andrade with inflicting child abuse (Penal Code,[1] § 273 subd. (a), count 1); making criminal threats (§ 422 subd. (a), count 2); and assault with a deadly weapon on a spouse and child (§ 245 subd. (a)(1), count 3). The offenses arose after an incident on October 5, 2017, when defendant grabbed a large kitchen knife and threatened to kill his partner J.B., their nine-year-old daughter E.B., and himself. Law enforcement arrested defendant the following day.

Defendant pleaded no contest to count 2. As part of that plea, a criminal protective order (CPO) was issued under section 1203.097 requiring defendant for three years from its issuance to avoid any "personal, electronic, telephonic, or written contact" with, and not to come within 100 yards of, J.B. and E.B. At sentencing, defendant did not challenge the imposition of the CPO or its terms.

Defendant's sole contention on appeal is that, because the CPO allegedly does not give J.B. (and their daughter E.B., ostensibly through J.B.) the express ability to contact him if she so chooses, the CPO is thus an "unconstitutionally overbroad infringement" on his and J.B.'s "fundamental liberty interests in family life and child-raising."

As we explain, we reject this contention. In so doing, however, we note that to the extent defendant and/or J.B. wish to modify the CPO, they may attempt to do so by filing in the trial court a petition to modify (post judgment) a protective order, pursuant to section 1203.3, as discussed post.

FACTUAL AND PROCEDURAL BACKGROUND

On October 5, 2017, J.B. reported that defendant texted her at work, threatening to post unkind things about her on a social media website. J.B. in response cancelled defendant's phone line. When she returned home later that day, she found defendant agitated, as he was pacing back and forth in the living room and "pounding his fist into his other hand out of frustration." Defendant and J.B. began to argue over finances. During the argument, J.B. yelled at defendant, "I can't stand you, and I wish you were dead."

According to J.B., defendant then walked into the kitchen and grabbed a large knife. He returned to the living room and yelled at J.B., "I am going to kill you, [E.B.,] and then myself." J.B. became frightened, grabbed their daughter, and called police. Realizing that J.B. had called the police, defendant left their home.

Officer M. Ceja contacted the victims. E.B. confirmed the same events. On October 6, Officer Ceja followed up with J.B. She informed Officer Ceja that defendant worked at a restaurant in El Centro. Law enforcement from El Centro contacted defendant at the job site and placed him under arrest.

As noted, defendant pleaded no contest on count 2, making a criminal threat that could result in death or great bodily injury. (§ 422, subd. (a).) As part of that plea, he agreed to three years of formal probation, to serve one year in county jail, and to attend a 52-week anger management program among other terms, with the balance of the charges dismissed. The CPO was issued on October 18, 2017.

As discussed in more detail post, the probation report noted that J.B. held no ill-will against defendant, but wanted defendant away from her and their daughter at least until defendant received treatment for his drug and anger issues. J.B. hoped defendant would take advantage of his probation conditions and attend anger management and drug rehabilitation classes to better himself; and that J.B. seemed somewhat open to having some contact with defendant if he could follow through on his anger management and drug issues.

The probation report further noted that defendant was cooperative and seemed remorseful for his previous behavior; and that he wanted to "change his ways" and become "a more productive citizen." However, contrary to the victims' incident report and defendant's own statement to police postarrest, during his probation interview defendant maintained that he had never threatened either J.B. or their child, and that his actions were derived from his anger about other personal matters between him and J.B. rather than financial difficulties.

DISCUSSION

As noted, the court issued a CPO under section 1203.097. This statute provides in relevant part, "(a) If a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code, the terms of probation shall include all of the following: [¶] (1) A minimum period of probation of 36 months, which may include a period of summary probation as appropriate. [¶] (2) A criminal court protective order protecting the victim from further acts of violence, threats, stalking, sexual abuse, and harassment, and, if appropriate, containing residence exclusion or stay-away conditions." (§ 1203.097, subd. (a)(1) & (2), italics added.) "In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to . . . section 1203.1. [Citations.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120–1121 (Carbajal).)

A. Forfeiture

We conclude defendant forfeited this claim of error on appeal by not objecting in the trial court to the imposition of the CPO or its terms when it was imposed. "Whether the issue has been preserved for appeal is governed by In re Sheena K. (2007) 40 Cal.4th 875, 890, in which the Supreme Court concluded that the failure to object to a condition of probation does not necessarily avoid the normal rule of forfeiture on appeal simply because it involves a constitutional challenge . . . . [Citation.] A challenge . . . is forfeited by failure to object unless the error is one that is 'capable of correction without reference to the particular sentencing record developed in the trial court.' [Citation.] In the latter circumstance, such a claim may 'present a pure question of law' properly addressed on appeal, even if there was no objection below." (In re Luis F. (2009) 177 Cal.App.4th 176, 181.)

Here, defendant's constitutional challenge to the CPO requires that we refer to the sentencing record, inasmuch as defendant argues modification is required in this case because he had no prior history of domestic violence and "made a rash threat in the heat of argument." As such, we conclude he forfeited this constitutional claim of error by failing to interpose an appropriate objection to the CPO in the trial court. Nevertheless, even if his contention was properly before us, we would reject it on the merits.

B. Merits

It is axiomatic that probation is a privilege, not a right. (In re York (1995) 9 Cal.4th 1133, 1150.) Because probation conditions foster rehabilitation and protect public safety, they may infringe on the constitutional rights of the probationer, who is "not entitled to the same degree of constitutional protection as other citizens." (People v. Peck (1996) 52 Cal.App.4th 351, 362.) If an otherwise valid probation condition impinges on a constitutional right, it must be carefully tailored, relate to a compelling state interest, and be necessary to accomplish these goals. (People v. Robinson (1988) 199 Cal.App.3d 816, 818 (Robinson).)

"[R]estriction of the right of association is part of the nature of the criminal process." (Robinson, supra, 199 Cal.App.3d at p. 818.) Under section 1203.097, subdivision (a)(2), the Legislature mandated that in domestic violence cases, the court shall impose a criminal protective order to ensure the protection of victims. Here, the record shows that defendant pleaded no contest to making a criminal threat that could result in death or great bodily injury, a felony, toward his partner J.B. and their daughter E.B. The record shows during an argument with J.B. in their living room, defendant went to the kitchen, grabbed a "large kitchen knife," and returned to the living room and yelled, "I am going to kill you, [E.B.,] and then myself." The record further shows J.B. took this threat very seriously, as she became frightened, kept E.B. close to her, and called police in defendant's presence. Nine-year-old E.B. confirmed these events when questioned by law enforcement.

The record also shows on arrest, defendant admitted he had threatened J.B. and their daughter with a knife. As noted, however, defendant later denied making any such threat, which the probation officer found "troubl[ing]" because defendant "diminishe[d] his actions with denial." The probation officer also found that J.B. was ambivalent about having any further contact with defendant, noting, "In speaking with the victim [i.e., J.B.], the undersigned feels she really wants the defendant to better his situation. She stated how in the past she had brought up the notion of counseling to help his anger issues but was always met with resistance as the defendant was never mandated to do this. Now that he will likely have to comply with this as part of his conditions of probation, the victim feels this will be extremely helpful for him and his attitude going forward. Although not specifically stated, it appears she would be willing to accept him should he show a true change in character and demeanor."

The probation officer concluded that J.B. "appear[e]d to want to be distant from the defendant, yet appear[ed] to still want to continu[e] contact with him"; that the grant of probation and the requirement defendant complete anger management courses and abstain from drug use would benefit both defendant and J.B.; that until defendant complied with the terms of his probation, which ultimately included participating in a 52-week certified anger management program, J.B. would "benefit from a stay away order"; and that the instant case required "close monitoring due to the defendant's drug use and anger issues."

"The elimination of domestic violence is a compelling state interest. The Legislature's stated purpose in enacting the Law Enforcement Response to Domestic Violence Act (§§ 13700–13731; Stats. 1984, ch. 1609, § 3, p. 5713) was 'to address domestic violence as a serious crime against society and to assure the victims of domestic violence the maximum protection from abuse which the law and those who enforce the law can provide.' (Stats. 1984, ch. 1609, § 1, p. 5711.) The Legislature expressed its intent 'that the official response to cases of domestic violence shall stress the enforcement of the laws to protect the victim and shall communicate the attitude that violent behavior in the home is criminal behavior and will not be tolerated.' " (People v. Jungers (2005) 127 Cal.App.4th 698, 704 (Jungers).)

Here, based on this record and in light of the compelling state interest to protect victims of domestic violence such as J.B. and E.B. (see Jungers, supra, 127 Cal.App.4th at p. 705), we conclude that the court properly exercised its broad discretion when it issued the CPO in the instant case and that its terms were carefully tailored to accomplish the important state interest of protecting victims of domestic violence. (See Carbajal, supra, 10 Cal.4th at pp. 1120–1121; Robinson, supra, 199 Cal.App.3d at p. 818.)

As noted ante, our decision does not mean defendant and/or J.B. have no recourse. Section 1203.3 permits a court to revoke, modify, or change the supervision of a defendant subject to mandatory supervision. Subdivision (a) of this statute provides in part: "(a) The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. The court may at any time when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person so held." Subdivision (b)(1) of this statute requires the prosecuting attorney be given a "five-day written notice and an opportunity to be heard" before a protective order in a case involving domestic violence is modified or terminated.

Moreover, subdivision (b)(6) of section 1203.3 specifically deals with the modification of a protective order issued in a case involving domestic violence, such as the instant one. It provides: "The court may limit or terminate a protective order that is a condition of probation or mandatory supervision in a case involving domestic violence, as defined in Section 6211 of the Family Code. In determining whether to limit or terminate the protective order, the court shall consider if there has been any material change in circumstances since the crime for which the order was issued, and any issue that relates to whether there exists good cause for the change, including, but not limited to, consideration of all of the following: [¶] (A) Whether the probationer or supervised person has accepted responsibility for the abusive behavior perpetrated against the victim. [¶] (B) Whether the probationer or supervised person is currently attending and actively participating in counseling sessions. [¶] (C) Whether the probationer or supervised person has completed parenting counseling, or attended alcoholics or narcotics counseling. [¶] (D) Whether the probationer or supervised person has moved from the state, or is incarcerated. [¶] (E) Whether the probationer or supervised person is still cohabiting, or intends to cohabit, with any subject of the order. [¶] (F) Whether the defendant has performed well on probation or mandatory supervision, including consideration of any progress reports. [¶] (G) Whether the victim desires the change, and if so, the victim's reasons, whether the victim has consulted a victim advocate, and whether the victim has prepared a safety plan and has access to local resources. [¶] (H) Whether the change will impact any children involved, including consideration of any child protective services information. [¶ and] (I) Whether the ends of justice would be served by limiting or terminating the order."

Subdivision (b)(6) of section 1203.3 thus provides defendant and/or J.B. with the means to modify the CPO at issue in this case. But unlike the limited appellate record in the instant case, whether "good cause" exists to modify the CPO will be based on a more complete record when such relief is first sought in the trial court, using the myriad factors set forth in subdivision (b)(6) of section 1203.3.

DISPOSITION

Defendant's judgment of conviction is affirmed.

BENKE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

GUERRERO, J.