Opinion
C086917
12-03-2019
THE PEOPLE, Plaintiff and Respondent, v. THOMAS EDWARD DOBBS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. CR592341)
Defendant Thomas Edward Dobbs appeals after a jury found him guilty of second degree burglary (Pen. Code, § 459) and the trial court suspended imposition of sentence and assigned him a three-year term of probation with various conditions. Defendant challenges his conviction, claiming prejudicial instructional error, and alternatively challenges a condition of probation and a monetary assessment imposed at the time of sentencing.
Further undesignated statutory references are to the Penal Code.
We conclude that any instructional error was harmless, but agree with defendant and the Attorney General (who agrees the challenged condition of probation is "not a beacon of clarity" and asks us to modify it) that the challenged condition is defective. For reasons we explain, we remand for further action by the trial court. We shall also strike the challenged $30 assessment as unauthorized and note additional errors in the order of probation. We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Deputy Emit Whiting encountered defendant walking along the side of the road near his white van that had run out of gas. The van was full of equipment, including ramps for a car, a pressure washer, an engine hoist, and tires. Raul Nava, a former codefendant who later pleaded guilty pursuant to a negotiated agreement and testified as a witness for the prosecution at trial, was standing next to the van. Defendant told Whiting that his friend (Nancy Miller) had given him permission to take the equipment from her front yard. Defendant said "[h]e was going to use [the equipment] to fix up a pickup truck." Whiting attempted to confirm defendant's story and was told by Officer Benny Beecham that Miller had confirmed "it was ok for them to have those items that were in the back of the white van." Relying on this statement, Whiting gave defendant a ride to his mother's home.
Officer Beecham testified that Miller told him defendant and Nava had removed some property from the warehouse, including an engine hoist, and did not say that she had given them permission to do so. Beecham told Whiting that Miller confirmed the items were taken, but that Beecham had not yet spoken with the owner. Beecham inspected the warehouse and noted that the padlock latch from the sliding door had been unscrewed and the door left partially open. The interior looked like it had been partially rummaged through.
Beecham described the discrepancy between the two officers' testimony as a miscommunication.
The warehouse owner testified to speaking with Beecham. Many of the items seen in the white van were identical to those missing from the warehouse. He always kept the warehouse locked and did not give anyone permission to take the items. None of his property was recovered.
Miller testified that defendant visited her trailer at about 11:00 p.m. that evening. However, she did not see defendant go into the warehouse or give him permission to do so. Miller did not see anyone take any items from the warehouse. She denied telling Beecham that defendant and Nava took items from the property or that they entered the warehouse.
Nava testified that both he and defendant went inside the warehouse. Nava claimed defendant told him that defendant's uncle had given permission to borrow the items; Nava helped defendant move the engine hoist from the warehouse into the van. The van had been empty when they arrived at the property. Nava was originally charged as a codefendant, but had pleaded guilty to receiving stolen property. The last time he saw the property was at defendant's house after they unloaded it.
Following argument, instruction, and nearly two hours of deliberation, the jury found defendant guilty of second degree burglary. At the sentencing hearing, the trial court suspended imposition of sentence and granted defendant a three-year term of probation with 180 days in county jail as one of many conditions. Defendant timely appealed.
DISCUSSION
I
Instructional Error
The trial court orally instructed the jury as to the effect of Nava's classification as an accomplice pursuant to the appropriate pattern instruction, but the parties agree the court inadvertently omitted the written copy of that same instruction from the packet given to the jury. Defendant argues the trial court's failure to include a written copy of the accomplice instruction constituted statutory error requiring reversal. Specifically, he asserts the failure to include this written instruction was prejudicial because it undermined his argument that directed the jury to carefully consider instruction CALCRIM No. 335. We disagree.
CALCRIM No. 335 is captioned "Accomplice Testimony: No Dispute Whether Witness Is Accomplice" and was verbally given as follows: "If the crime of second-degree burglary was committed, then Raul Garza Nava was an accomplice to those crimes. You may not convict the defendant of second-degree burglary based on the statement or testimony of an accomplice alone. You may use the statement or testimony of an accomplice to convict the defendant only if, one, the accomplice's statement or testimony is supported by other evidence that you believe; two, that supporting evidence is independent of the accomplice's statement or testimony; and three, that supporting evidence tends to connect the defendant to the commission of the crimes. "Supporting evidence, however, may be slight. It does not need to be enough by itself to prove the defendant is guilty of the charged crime, and it does not need to support every fact about which the witness testified. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. "Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you think it deserves after examining it with care and caution and in light of all of the other evidence."
As our high court recognized in People v. Trinh (2014) 59 Cal.4th 216 at page 235 (Trinh), section 1093 requires the jury be provided with written instructions when requested. If such a request were made and jury instructions were not provided, it would be statutory error. (Trinh, at p. 235.) Such error would be prejudicial only if defendant established "a reasonable probability of a more favorable outcome had the jury received written copies of" the requested instructions. (Ibid.)
Assuming for argument's sake that statutory error occurred, we find any error was harmless. As recognized in Trinh, the omission of a written instruction does not nullify accurate oral instructions; rather, we presume the jury heard and followed those oral instructions. (Trinh, supra, 59 Cal.4th at pp. 234-235.) Further, the failure to include the written instruction did not undermine defense counsel's credibility or argument. Rather, counsel's argument concerning the accomplice liability instruction largely mirrored the actual instruction given orally by the court shortly after that argument. Counsel described the instruction and asked the jury to listen for it, and the court read it to the jury soon after, thereby reinforcing counsel's representation and description.
Counsel asked the jury to pay close attention to CALCRIM No. 335, and succinctly and accurately summarized that instruction, stating "if the crime of second-degree burglary was committed, then Raul Nava was an accomplice of those crimes. You may not convict the defendant -- may not convict the defendant of second-degree burglary based on the statement or testimony of an accomplice alone. You can't do it. That's what this instruction says. You may use a statement or testimony of an accomplice to convict the defendant only if -- only if the accomplice's statement or testimony is supported by other evidence that you believe. That's one. The supporting evidence is independent of the accomplice's statement or testimony. That's the second element. [¶] Both of those have to be there, and that supporting evidence tends to connect the defendant to the commission of the crimes. Pay close attention to that second element. That supporting evidence is independent of the accomplice's statement or testimony."
The jury did not ask about the missing instruction or ask any questions prior to rendering its verdict, despite counsel's argument emphasizing the instruction followed by the court's reading it to the jury. Like the defendant in Trinh, because there is no information in the record suggesting that the jury was confused by or failed to understand the instructions that were provided to it, defendant has not established "a reasonable probability of a more favorable outcome had the jury received written copies" of CALCRIM No. 335. (Trinh, supra, 59 Cal.4th at p. 235.)
At oral argument, appellate counsel for defendant read the instruction out loud to emphasize its complexity. We neither disagree with that point nor ignore it, but note that the summary provided in the trial court by the defendant's attorney during his closing argument conveyed and emphasized the salient points of the instruction.
II
Probation Condition No. 10
Included among the terms and conditions of probation were that defendant "shall not knowingly associate socially with any person known by you to be on probation, mandatory supervision, post release community supervision and/or parole or be present at anytime at any place, public or private, as designated by the probation officer." (Italics added.) Defendant argues the language we have italicized placed "unconstitutionally overbroad restrictions" on his right to travel and free association.
The Attorney General instead asks for modification, acknowledging that the italicized portion of the condition is "difficult to understand" but "surmis[ing]" that it means: "You shall not knowingly associate socially, or be present at anytime at any place, public or private, with any person known to you to be on probation, mandatory probation, post release community supervision and/or parole, as designated by the probation officer."
Nothing in the record allows us to ascertain that this is what the trial court would have intended; further, such revision would allow defendant to associate with individuals he knows to be on probation, providing they have not been designated by the probation officer. It is doubtful the trial court would have made this order. We simply do not know what the challenged language was meant to say. But we are certain that the language is constitutionally overbroad as currently written.
As explained by our high court in People v. Moran (2016) 1 Cal.5th 398 at pages 405-406: "Although not explicitly guaranteed in the United States Constitution, '[t]he right to travel, or right of migration, now is seen as an aspect of personal liberty which, when united with the right to travel, requires "that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement." ' [Citation.] This right also includes the right of intrastate travel, which 'has been recognized as a basic human right protected by article I, sections 7 and 24 of the California Constitution.' [Citation.] Like all constitutional rights, the right to travel is subject to limits: 'Neither the United States Supreme Court nor this court has ever held . . . that the incidental impact on travel of a law having a purpose other than restriction of the right to travel, and which does not discriminate among classes of persons by penalizing the exercise by some of the right to travel, is constitutionally impermissible.' [Citation.]"
Our high court continued: "Imposing a limitation on probationers' movements as a condition of probation is common, as probation officers' awareness of probationers' whereabouts facilitates supervision and rehabilitation and helps ensure probationers are complying with the terms of their conditional release. [Citations.] [¶] Although criminal offenders placed on probation retain their constitutional right to travel, reasonable and incidental restrictions on their movement are permissible." (People v. Moran, supra, 1 Cal.5th at p. 406.)
In this case, there are no articulated limits, whether reasonable or not, on the probation officer's authority to forbid defendant from being "present at anytime at any place, public or private, as designated by the probation officer." (Italics added.) We agree that the challenged language vesting in the probation officer unfettered discretion to limit defendant's right to travel is unconstitutionally overbroad. (See In re Sheena K. (2007) 40 Cal.4th 875, 890 ["A probation condition that imposes limitations of a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as constitutionally overbroad"].)
Given this finding, we will not analyze whether the condition separately impinges on defendant's right of free association.
Given the extraordinary breadth of the challenged language, we are unable to ascertain the trial court's intent in imposing it. We remand to the trial court with the direction to either strike the challenged language or otherwise modify probation condition no. 10 to cure the error described by this opinion.
III
The Assessment
Defendant requests we strike the $30 administrative fee imposed on the $300 probation revocation restitution fine authorized by section 1202.44. The Attorney General agrees the fee is unauthorized.
We note the Attorney General questions the absence of an abstract of judgment in the record. Because the trial court suspended imposition of sentence and ordered probation, no abstract of judgment would have been generated. --------
"[A] convicted defendant who is granted probation will ordinarily be subject to two restitution fines—a State Restitution Fund fine under section 1202.4(b) and a probation revocation restitution fine under section 1202.44, which is stayed unless probation is revoked." (People v. Guiffre (2008) 167 Cal.App.4th 430, 434, italics omitted.) These fines must be imposed in an equal amount. (§ 1202.44 ["the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4"].) However, while section 1202.4, subd. (l) authorizes a 10 percent administrative fee to be imposed on the restitution fine under specified circumstances, section 1202.44 does not. (§§ 1202.4, 1202.44.) Therefore, we concur with the parties that the trial court erred in imposing the fee, which was improvidently recommended by the probation department. We can and will correct this error and strike the fee. (See, e.g., People v. Smith (2001) 24 Cal.4th 849 at pp. 852-853 [unauthorized, nondiscretionary sentence subject to review and correction on appeal].)
We note that there are other fees and costs incorrectly included in the order of probation as conditions of probation rather than by separate order. This inclusion was recommended by the probation officer, but is not appropriate. (See, inter alia, People v. Pacheco (2010) 187 Cal.App.4th 1392, 1402, disapproved on other grounds in People v. Trujillo (2015) 60 Cal.4th 850, 858, fn. 5 [court operations fee (§ 1465.8) is not properly included as a condition of probation]; People v. Kim (2011) 193 Cal.App.4th 836, 843 [court security assessment (Gov. Code, § 70373) is not properly included as a condition of probation], disapproved on other grounds in People v. Trujillo (2015) 60 Cal.4th 850, 858, fn. 5; People v. Bradus (2007) 149 Cal.App.4th 636, 641-642 [probation costs such as report preparation and supervision are not properly included as conditions of probation].) On remand, the trial court should ensure that the conditions of probation do not erroneously include fees and costs that are " 'collateral' to [defendant's] crime and punishment." (Pacheco, at p. 1402.)
DISPOSITION
We modify the judgment to strike the unauthorized $30 administrative fee as described by this opinion. The matter is remanded to the trial court with directions to either strike the unconstitutional portion of probation condition no. 10 or to revise the condition in conformity with this opinion, and to make any necessary corrections to the placement of the fee and cost provisions currently constituting probation condition no. 13. The judgment is otherwise affirmed.
/s/_________
Duarte, Acting P. J. We concur: /s/_________
Renner, J. /s/_________
Krause, J.