People v. Sandoval

225 Cal.Rptr.3d 891

The PEOPLE, Plaintiff and Respondent,

v.Marco Antonio SANDOVAL, Defendant and Appellant.

D071560

Court of Appeal, Fourth District, Division 1, California.

Filed November 30, 2017

As Modified on Denial of Rehearing December 28, 2017

Benjamin B. Kington, 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, Tami Falkenstein Hennick and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

BENKE, Acting P. J.

An information charged defendant Marco Antonio Sandoval with inflicting corporal injury on a spouse resulting in a traumatic condition ( Pen. Code,¹ § 273.5, subd. (f)(1), count 1) and making a criminal threat (§ 422, subd. (a), count 2). The information alleged defendant had suffered two prison (§ 667.5, subd. (b)) and two strike (§§ 667, subds. (b)-(j) & 1170.12) priors. The offenses arose out of an incident on May 23, 2016, in which defendant punched his wife, A.H., choked her to the point of unconsciousness, and threatened to kill her if she left him.

On September 23, 2016, defendant pleaded no contest to count 1 and admitted one prison prior. The plea included a stipulated five-year upper term, suspended; three-years felony probation; and a dismissal of count 2 and all additional allegations in the information. At the October 14 sentencing, over the objections of defendant and A.H., the court reissued a criminal protective order (CPO) using Judicial Council form CR-160 preventing defendant from initiating any contact whatsoever with A.H. for three years.

Defendant's sole contention on appeal is that the court erred in refusing to terminate the CPO or otherwise modify it to allow some contact between him and A.H. Respondent the People agree with defendant and request that this case be remanded to allow the trial court to consider a more narrowly tailored protective order.

As we explain, we affirm the CPO with a minor modification. We conclude the court properly exercised its broad discretion under section 1203.097, subdivision (a)(2) when it issued the CPO preventing defendant from initiating any contact whatsoever with A.H., pending a showing by defendant that he was making at least some progress in addressing his anger management issues and drug addiction, a showing he had yet to make on this record. However, we further conclude the CPO should be modified to allow A.H. to initiate contact, if any, with defendant that is acceptable and welcomed by her .

OVERVIEW

The CPO was initially issued by the court on August 8, 2016. It required defendant to avoid any "personal, electronic, telephonic, or written contact" with A.H., including through a third-party (except an attorney of record), and to stay more than 100 yards away from her (sometimes collectively, stay-away provision). It was reissued three days later, on the same terms.

At the September 23 hearing, the prosecutor noted for the record that he was agreeing to the plea in part because A.H. had been "very uncooperative" at the August 19 preliminary hearing when, over the People's objection, she invoked her alleged Fifth Amendment privilege against self-incrimination. At the conclusion of the hearing, the court asked the probation department to make a recommendation at the upcoming sentencing whether the CPO should remain in effect.

The October 6 probation report noted that in late September A.H. requested that the CPO be lifted. The report further noted that A.H. advised probation that she intended to appear at the October 14 sentencing and request the termination of the CPO; that she and defendant had been working on their marriage and she believed it was in "God's hands"; and that she had not wanted the CPO issued in the first instance. The probation report recommended that defendant be ordered not to "annoy, harass, or threaten" A.H. either "personally or through a third party," ostensibly what defendant refers to as a "good conduct order," but stopped short of recommending there be no contact whatsoever between defendant and A.H.

At the October 14 sentencing, A.H. asked the court to terminate the CPO. In so doing, she stated that she had known defendant for 25 years; that they were high school "sweetheart[s]" and had "reconnected" about three years ago; and that they had been married for over a year. A.H. also informed the court that she had an associate's degree and was one year away from obtaining her bachelor degree in business administration; that she had the support of her church, her pastor, and her "woman's cell groups"; that other than the two domestic violence incidents, there had been no other occurrences of "abuse" between her and defendant, including during a "cool-down period" between the May 23 incident and defendant's arrest in early August; and that she had a "safety plan" in place if "things g[o]t out of control in the future," as her sister lived only two doors down.

The court noted A.H. appeared to be "very stable" and a "very good person," but expressed concern for her welfare absent the CPO because the instant offense was "very serious," and defendant had yet to enroll in anger management classes and show he was making progress. The defense argued rather than imposing the CPO that prevented any contact between defendant and A.H., the court instead should impose a good conduct order, as noted, which the defense represented was also what A.H. wanted. The defense further argued that the stay-away provision in the CPO violated his and A.H.'s constitutional rights to marital privacy and family associations. The court kept the CPO temporarily in place, asked for further briefing from the parties and a supplemental report from probation, and set the matter for hearing on November 4.

The probation department's November 1 supplemental report stated defendant admitted "consuming methamphetamine" on October 30. Defendant also had yet to enroll in a 52-week certified anger management program. As a result, the November 1 report recommended that the CPO remain intact and that a hearing be set in late December to review defendant's progress.

Defendant's brief in support of his motion for termination or modification of the CPO argued the prior domestic violence incident that took place in October 2014, resulted in him pleading no contest to a mere misdemeanor violation of section 273.5, subdivision (a) ; that when the CPO issued in the instant case, it was without any input from A.H.; that A.H. believed the police officer report concerning the May 23 incident contained exaggerations and untruthful information about what had taken place; and that defendant and A.H. had lived together peacefully as husband and wife after the incident.

At the November 4 hearing, the defense informed the court that defendant had enrolled in, but not yet started, an anger management program. The defense argued section 1203.097, subdivision (a)(2), discussed in detail post , gave the court the discretion to impose a good conduct CPO without any "residence exclusion or stay-away conditions."

The court denied defendant's request to terminate or modify the CPO to allow him some contact with A.H. In so doing, it found that the real problem in this case was defendant's "long-standing" substance abuse, as both domestic violence incidents centered around defendant and his drug use; that defendant continued to abuse drugs, including as recently as October 30 when he admitted using methamphetamine; and that defendant's ongoing drug use and anger management issues were a "very strong red flag" that something else could potentially happen to A.H.

Near the conclusion of the hearing, the court encouraged defendant to appeal the issue of whether A.H.'s desire to have contact with him "trump[ed] the statutory analysis" required for domestic violence victims. The court set the matter for hearing in 90 days and suggested defendant attend anger management classes and stay sober, all of which it noted would "go a long way to convincing the court that it's an appropriate modification" of the CPO.

The record shows the probation department, postappeal,² filed a February 2, 2017 update informing the trial court that defendant had reenrolled in a 52-week anger management course on January 4; that defendant had attended four of the five scheduled sessions; that defendant had failed to attend the February 1 class "without a valid excuse"; and that the program director had reported defendant did not take the program seriously and had been a "constant disruption" in class. At the February 2 hearing, the court refused to modify the CPO and set a review hearing for May 2017.

At the May 3 hearing, the defense informed the court of defendant's termination from the anger management and "GEO Reentry Services" programs. The court summarily revoked defendant's probation and issued a bench warrant for his arrest. The May 8 petition to revoke probation stated that defendant also had tested positive for methamphetamine on November 1 and December 1, 2016, and on February 2, 2017; and that defendant thereafter had failed to contact or report to probation as required.

DISCUSSION

A. Governing Law

We note the challenged stay-away provision in the CPO, preventing defendant from having any contact with A.H., is not technically a condition of his probation but instead was issued under section 1203.097 governing domestic violence. Subdivision (a) of this statute provides in relevant part: "If a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code,^{[3 ]}the terms of probation shall include all of the following: ... (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." (Italics added.)

As noted, defendant pleaded no contest to a...