Opinion
F073503
06-14-2017
THE PEOPLE, Plaintiff and Respondent, v. PASQUALE DESANTIS, JR., Defendant and Appellant.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren Indermill, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. F15906522 & F15907505)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. David A. Gottlieb, Judge. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren Indermill, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Peña, J.
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INTRODUCTION
Defendant Pasquale DeSantis, Jr., and the victim of his crimes were in an intimate dating relationship. Following an incident of violence against her, defendant was charged by amended information with violating Penal Code section 273.5, subdivision (a) (corporal injury) (count 1); section 136.1, subdivision (b)(1) (dissuading a witness) (count 2); and section 236 (false imprisonment) (count 3). As part of a plea bargain that resolved this case and a separate, unrelated burglary case (§§ 459/460, subd. (b)), defendant pled no contest to count 3, and counts 1 and 2 were dismissed. The trial court sentenced defendant to one year in custody and one year of mandatory supervised release, subject to certain terms, including completion of a batterer's intervention program. (§ 1170, subd. (h)(5).)
All further statutory references are to the Penal Code unless otherwise specified.
Fresno Superior Court case No. F15906522.
On appeal, defendant argues that completion of a batterer's intervention program is not a statutorily mandated term, and it must be stricken because it amounts to punishment that exceeds the terms of the plea agreement, in violation of his constitutional right to due process.
The People contend that assuming the terms of supervised release are negotiable, the plea bargain did not restrict the trial court's discretion to impose terms of supervision, including completion of the program.
We affirm the trial court's order.
DISCUSSION
I. Forfeiture
As an initial matter, defendant argues no certificate of probable cause is required (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(4)(B); People v. Lloyd (1998) 17 Cal.4th 658, 663-665), and his claim is cognizable despite the absence of an objection in the trial court because the court failed to advise him in compliance with section 1192.5 (People v. Walker (1991) 54 Cal.3d 1013, 1024 (Walker), overruled in part on other grounds by People v. Villalobos (2012) 54 Cal.4th 177, 183 (Villalobos); People v. Silva (2016) 247 Cal.App.4th 578, 589-590). The People concede the trial court failed to advise defendant properly pursuant to section 1192.5 and his claim is therefore cognizable on appeal. We accept this concession. (People v. Lopez (1998) 66 Cal.App.4th 615, 635, fn. 13 (Lopez).)
Section 1192.5 requires the court advise the defendant as follows: "If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea."
II. Alleged Violation of Plea Bargain
A. Mandatory Supervision
Defendant was sentenced pursuant to the Criminal Justice Realignment Act of 2011 (Stats. 2011, ch. 15, § 1; Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1 (the Realignment Act)), which "significantly changes the punishment for some felony convictions. Under the terms of the [Realignment] Act, low-level felony offenders who have neither current nor prior convictions for serious or violent offenses, who are not required to register as sex offenders, and who are not subject to an enhancement for multiple felonies involving fraud or embezzlement, no longer serve their sentences in state prison. Instead, such offenders serve their sentences either entirely in county jail or partly in county jail and partly under the mandatory supervision of the county probation officer." (People v. Scott (2014) 58 Cal.4th 1415, 1418-1419, citing § 1170, subd. (h)(2), (3), (5).)
Under the Realignment Act, defendant was given a split sentence pursuant to subdivision (h)(5) of section 1170, which provides in relevant part:
"(A) Unless the court finds that, in the interests of justice, it is not appropriate in a particular case, the court, when imposing a sentence pursuant to paragraph (1) or (2), shall suspend execution of a concluding portion of the term for a period selected at the court's discretion.
"(B) The portion of a defendant's sentenced term that is suspended pursuant to this paragraph shall be known as mandatory supervision, and, unless otherwise ordered by the court, shall commence upon release from physical custody or an alternative custody program, whichever is later. During the period of mandatory supervision, the defendant shall be supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation, for the remaining unserved portion of the sentence imposed by the court. The period of supervision shall be mandatory ...." (§ 1170, subd. (h)(5).)
"'[M]andatory supervision [under the Realignment Act] is more similar to parole than probation'" and "the validity of the terms of supervised release [are analyzed] under standards analogous to the conditions or parallel to those applied to terms of parole." (People v. Martinez (2014) 226 Cal.App.4th 759, 763 (Martinez); accord, People v. Malago (2017) 8 Cal.App.5th 1301, 1305-1306 (Malago).) "'[T]he state may impose any condition reasonably related to parole supervision'" (Martinez, supra, at p. 763; accord, Malago, supra, at p. 1306), and trial courts generally have broad discretion in this regard (Martinez, supra, at p. 764; accord, Malago, supra, at p. 1305). On appeal, parole conditions are reviewed for abuse of discretion under the standard applicable to probation conditions. (Martinez, supra, at p. 764; accord, Malago, supra, at p. 1305.)
Those conditions are analyzed under the test articulated by the California Supreme Court in People v. Lent (1975) 15 Cal.3d 481 (Lent). Under Lent, "[a] condition of probation will not be held invalid 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.] 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." (Id. at p. 486.)
B. Due Process Protections Attached to Plea Bargains
In this case, defendant does not challenge the condition he compete the batterer's intervention program as an abuse of the trial court's discretion. Rather, he contends it constitutes punishment not contemplated by the parties' plea agreement and it was, therefore, imposed in violation of his right to due process.
Due process requires "that 'both parties, including the state, must abide by the terms of [a plea] agreement' and '[t]he punishment may not significantly exceed that which the parties agreed upon.'" (Villalobos, supra, 54 Cal.4th at p. 182, citing Walker, supra, 54 Cal.3d at p. 1024.) "This does not mean that any deviation from the terms of the agreement is constitutionally impermissible.... [T]he variance must be 'significant' in the context of the plea bargain as a whole to violate the defendant's rights. A punishment or related condition that is insignificant relative to the whole, such as a standard condition of probation, may be imposed whether or not it was part of the express negotiations." (Walker, supra, at p. 1024; accord, Lopez, supra, 66 Cal.App.4th at p. 636.)
Pursuant to the plea agreement, the parties stipulated to a two-year split sentence, one year in custody and one year on mandatory supervised release. In addition, the plea agreement provided: "The matter of probation and sentence is to be determined solely by the court." We agree with the People that the plea agreement itself does not purport to limit any conditions of supervised release and, thus, resolution of defendant's claim rests on whether the term requiring completion of the batterer's intervention program presented a sufficiently significant departure from the plea agreement that it constituted punishment, in violation of the due process clause. (Walker, supra, 54 Cal.3d at p. 1024.)
Citing to section 1203.097, subdivision (a)(6), which applies to conditions of probation in domestic violence cases, defendant focuses on the fact that the batterer's intervention program is not a mandatory term of supervised release. As previously stated, however, trial courts have broad discretion to impose conditions of supervised release, and completion of the batterer's intervention program was recommended by the probation officer and disclosed in the probation report. Furthermore, the false imprisonment charge to which defendant pled no contest arose from an incident in which defendant repeatedly punched the victim while she was a passenger in his moving vehicle. The victim then jumped from the vehicle, became entangled in her seatbelt and was dragged a short distance. During this course of events, the vehicle ran over the victim's ankles.
The parties stipulated to the police report as the factual basis for the plea.
As we stated in Lopez, "[a] standard condition of probation, even if not agreed upon or discussed, is an immaterial deviation from the agreement as a matter of law." (Lopez, supra, 66 Cal.App.4th at p. 636.) Assuming section 1203.097, subdivision (a)(6), applies to probation but not supervised release, as defendant asserts, he fails to explain how a standard, mandatory term of probation in domestic violence crimes cannot be fairly described as a standard term of supervised release in domestic violence crimes, one well within the court's discretion to impose. (See People v. Cates (2009) 170 Cal.App.4th 545, 550 [section 1203.097 "encompasses defendants convicted of any crime of 'abuse' so long as the victim is a person identified in Family Code section 6211"]; People v. Brown (2001) 96 Cal.App.4th. Supp. 1, 40 [even if not mandatory, court had discretion to impose domestic violence related probation conditions where the defendant's wife "was a victim of the vandalism in a domestic violence setting"]; cf. United States v. Abbouchi (2007) 502 F.3d 850, 858 [trial court erred in imposing domestic violence treatment as a nonstandard condition of supervised release in fraud case, where only evidence of domestic violence was a paragraph in the presentence report noting strains in the defendant and his wife's relationship and their separation].)
Defendant does not argue that the crime was not one of domestic violence committed against a victim as defined under Family Code section 6211. (§ 1203.097, subd. (a).)
While we agree with defendant that participation in a batterer's program is more burdensome than merely requiring compliance with all laws, we are unpersuaded it presents a variance of such significance that it constitutes punishment. We find the cases relied on by defendant readily distinguishable, as follows.
In People v. Douglas M. (2013) 220 Cal.App.4th 1068 at pages 1076-1077, the Court of Appeal held that retroactive application of section 1203.067 was impermissible. In doing so, the court observed that retroactive application would raise constitutional concerns because the statute required completion of a new mandatory program at the defendant's expense despite participation in, payment for and perhaps completion of court-ordered treatment under prior conditions of probation. (People v. Douglas M., supra, at p. 1076.) In addition, the statute included waivers of the privilege against self-incrimination and the psychotherapist-patient privilege. (Ibid.)
In People v. Delgado (2006) 140 Cal.App.4th 1157 at page 1171, the Court of Appeal concluded that application of section 1203.097 to offenses committed prior to its enactment was an ex post facto application of law because the statute "increased the measure of punishment from what was in effect on the date of [the] defendant's offenses, by removing the trial court's discretion to impose a shorter term and by attaching the mandatory 36-month term, community service condition, and $400 payment."
Finally, in People v. Olea (1997) 59 Cal.App.4th 1289 at page 1298, the Court of Appeal held that requiring the defendant to register as a sex offender pursuant to section 290 was a significant variance from the terms of the plea bargain and violated the defendant's right to due process. The sex offender registration requirement was lifelong, it required registration annually and upon any move, and willful failure to comply was itself a felony. (People v. Olea, supra, at pp. 1296-1297.) The court rejected the People's argument that the defendant "could not reasonably believe there would be no sex offender registration requirement" (id. at p. 1297) where the prosecutor had the authority to and did dismiss the two counts that expressly required sex offender registration and where the requirement, rather than an inherent incident of the plea, was later added by the court given the court's view of the facts (id. at p. 1298).
None of these cases involved imposition of a single term of probation or supervised release that can fairly be described as a standard condition imposed in domestic violence related cases. Here, defendant pled no contest to a crime of violence against someone he was dating and, understandably, he does not attack imposition of the term as an abuse of discretion under the factors articulated in Lent. (See People v. Cates, supra, 170 Cal.App.4th at p. 551.) We conclude imposition of the batterer's intervention program is a standard condition in cases such as this and, as such, is "insignificant relative to the whole ...." (Walker, supra, 54 Cal.3d at p. 1024; Lopez, supra, 66 Cal.App.4th at p. 636.)
DISPOSITION
The judgment is affirmed.