Opinion
C088031
11-25-2019
THE PEOPLE, Plaintiff and Respondent, v. JASON MARTIN MICHAEL HERNANDEZ, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF-2018-2565)
Defendant Jason Martin Michael Hernandez pleaded no contest to felony vandalism (Pen. Code, § 594, subd. (b)(1)) and misdemeanor resisting an officer (§ 148, subd. (a)(1)). The trial court suspended imposition of sentence and placed defendant on a three-year term of formal probation subject to various conditions including completion of a 52-week domestic violence program.
Further undesignated statutory references are to the Penal Code. --------
On appeal, defendant contends the domestic violence program condition was unauthorized and an abuse of discretion, because there is insufficient connection between the crimes and domestic violence. As we explain, we agree and strike the condition. We affirm the judgment as modified.
BACKGROUND
The Plea
Defendant signed a plea form stating he was pleading no contest to felony vandalism and misdemeanor resisting an officer with a promise of no state prison at the outset. The plea form was signed on the same day the change of plea hearing was held.
At the hearing, after obtaining defendant's oral waiver of trial rights, the trial court explained the possible consequences of the plea, including the maximum penalty, the minimum and maximum fines, other consequences of conviction, and the right to withdraw the plea if the court rejected the agreement at sentencing.
The trial court then asked the prosecutor and defense counsel if defendant had to be advised of anything else. Both first replied no, after which the following exchange took place:
"[Prosecutor]: I did just realize there was something that [defense counsel] and I did talk about.
"[Court]: What was that?
"[Prosecutor]: That would be to include domestic violence terms.
"[Defense Counsel]: That doesn't need to be a part of the plea. That's a condition of probation. It will be -- and I advised Mr. Hernandez of
"[Court]: This is a domestic violence incident?
"[Prosecutor]: It derives from a relationship.
"[Court]: Then by law it's required. Even though it's a plea to vandalism, the victim is
"[Defense Counsel]: Yeah, and there would be terms and conditions of probation.
"[Prosecutor]: I'm just making sure we're on the same page.
"[Court]: All right. Thank you for bringing that up.
"You understand you'll be participating in a 52-week domestic violence class?
"[Defendant]: Yes.
"[Court]: And you'll be doing some community service because that's required for domestic violence as well.
"[Defendant]: Okay."
The court then asked for a factual basis of the plea, which the prosecutor provided as follows:
"On April 7, 2018 . . . in the City of West Sacramento at approximately 8:50 in the evening, two reporting parties called in hearing [sic] that a house had been broken into and a person inside the residence. There was a report that Defendant was jumping on cars and throwing rocks. The Defendant's ex girlfriend, [Stacy R.], who has a child in common with the defendant, received a call from his grandmother who told her not to get the kids because he was drunk at that location. And the location was in the county of Yolo.
"The residents . . . heard glass breaking in front of the house and thought someone was inside. They recognized the voice to be the Defendant's voice. They stated damage that exceeds several thousand dollars. Items were damaged included two car -- vehicle front windshield glass, two windows into the house, a TV, and drywall inside the residence, which appeared to be from a brick being thrown from the house -- into the house and into the wall.
"When officers arrived, they came and saw the Defendant and approached him. He looked at the officers directly, started to turn away. He was told to sit down twice. He failed to comply and started to run to the side of the house and towards the side fence of the residence. He started to climb the fence into the backyard of the residence in attempt to flee from Officer Coulter. The fence broke and officers were able to arrest Mr. Hernandez at that point."
Defense counsel replied to this summary, "[w]e agree only to those facts necessary to be able to support the charges." The court found a factual basis for the plea; there was no further mention of the factual basis.
Probation Report
The probation report noted defendant had two children (then aged one and four) and shared custody with their biological mother, paying $33 a month in child support. His prior criminal record consisted of a single juvenile conviction for felony cruelty to animals (§ 597, subd. (a)) in 2012.
According to the probation report, officers were dispatched to the location in response to a report of a residential burglary in progress. Another call to dispatch reported a man outside at the same address jumping on cars and throwing rocks. When the officers arrived, defendant tried to flee after being told to stop, but was quickly apprehended. The victims said they heard a voice they recognized as defendant's. The damage exceeded several thousand dollars and included windows on the two vehicles in front of the house, a television, and drywall inside the residence.
Defendant told the probation officer he did not mean to commit the crime; he had drunk too much alcohol. The alcohol made him do things he otherwise would not have done. He was very sorry and was not himself that night.
In a victim impact statement, D.R. related that defendant yelled "What's up then nigga," and "Where you at bitch" as glass was shattering. D.R.'s letter to the court characterized defendant as a "mere acquaintance" and suggested his actions were due to the fact that he was "mad at the mother of his children."
Sentencing
While stating the People's position at sentencing, the prosecutor stated: "We also discussed a domestic violence disposition in this case. This case derived from the Defendant calling the girlfriend and saying that he was going to go to the best friend's house, and the best friend's house was the house that was vandalized. [¶] So, based on that, I would ask the Court to impose the domestic violence disposition in this case, and also abide by the alcohol terms because it appears to be that alcohol was a driving factor for this."
After placing defendant on probation and imposing fines and fees, the trial court asked, "[n]ow, with regard to the request for the 52-week class, why didn't Probation already recommend that?"
The probation officer was "unsure"; defense counsel replied, "well, the damage to the property did not belong to anything remotely connected to the mother of his children." The probation officer then suggested an anger management program.
The prosecutor argued for the "DV dispo," stating, "The girlfriend was told by the Defendant's mother not to come and pick up the kids because Defendant had shown up drunk and everything. So but for the grandmother warning the victim, she would have been [home] because he was on the phone with her. So I believe it derives from the domestic violence relationship. In his mind, he likely thought she was at the home and that's why the damage was done. There was no -- from what I'm aware no animosity from friends [sic] of why he would damage their home." Defense counsel replied that the ex-girlfriend was "not at all anywhere near the incident when it occurred, nor was she even aware this incident was occurring."
The court imposed the condition without further comment. Defense counsel again objected.
DISCUSSION
Defendant contends the probation condition at issue was not authorized under section 1203.097 and was unreasonable under section 1203.1, subd. (j). The Attorney General asserts the claim is not cognizable on appeal because defendant waived his right to appeal errors not related to sentencing. He argues that the disputed condition was part of the plea agreement to which defendant agreed before entering his plea, so its later imposition as a condition of probation was not an error related to sentencing. The Attorney General adds that the condition was not an abuse of discretion. Defendant counters both points and has the better argument.
First, while we agree that defendant initialed the portion of the plea form waiving his right to appeal errors not related to his sentence, the disputed condition of probation was not encompassed by this waiver. The condition was not in the plea agreement and was not formally agreed to before the plea or at any time prior to sentencing. When the prosecutor raised the condition at the time of the plea, during the advisements, defense counsel clearly said that the condition was not part of the plea agreement and the prosecutor did not dispute that assertion. Although the trial court prophylactically advised defendant at the plea hearing that the domestic violence course would be a condition of probation, this was after being told by the prosecutor that the crimes "derived[d] from a relationship[,]" subsequently opining that "[t]hen by law it's required."
Further, the trial court's advisement did not function to add to the plea agreement's terms or unilaterally create a pre-plea agreement. And the prosecutor never asserted the condition was part of the plea, but instead argued that the court should exercise its discretion to add the condition to defendant's probation based on the prosecutor's "belie[f]" and "feel[ing]" that the vandalism was related to domestic violence. Defense counsel argued against the condition at sentencing, and probation did not recommend the condition. Thus the imposition of the disputed condition was related to sentencing and we reach the merits and agree with defendant that the condition was improperly imposed, as we next explain.
A probation condition related to domestic violence is authorized one of two ways. Section 1203.097 requires the trial court to impose numerous mandatory probation conditions in domestic violence cases where the defendant is placed on probation. (People v. Delgado (2006) 140 Cal.App.4th 1157, 1163.) However, section 1203.097 applies only when the victim is one of the people defined in Family Code section 6211. (§ 1203.097, subd. (a).) The residents of the home defendant vandalized were acquaintances of defendant, a relationship that does not qualify them as domestic violence victims under Family Code section 6211. (Id., § 6211 [defining domestic violence victim spouse or former spouse, dating or engagement relationship, person with whom one had a child, a child of a party, or a relative].) Section 1203.097 cannot authorize the disputed condition under these facts.
The remaining authorization, contained in section 1203.1, subdivision (j) permits imposition of reasonable probation conditions; what is "reasonable" has been defined by caselaw. "Trial courts have broad discretion to set conditions of probation in order to 'foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.' [Citations.] . . . [¶] However, the trial court's discretion in setting the conditions of probation is not unbounded." (People v. Lopez (1998) 66 Cal.App.4th 615, 624.) A term of probation is invalid if 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." (People v. Lent (1975) 15 Cal.3d 481, 486.) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (People v. Olguin (2008) 45 Cal.4th 375, 379; Lent, at p. 486, fn. 1.) Accordingly, a probation condition that regulates conduct that is not itself criminal is valid only if that conduct is reasonably related to the crime of which the defendant was convicted or to deterring future criminality. (Olguin, at pp. 379-380; Lent, at p. 486.)
Here, the motivation for defendant's crimes is far from clear. He told the probation officer he was drunk. The fact that defendant's grandmother told the mother of his children not to come over (because defendant was drunk) does not support an inference that defendant's motive concerned domestic violence. The probation report likewise gives no motive or purpose related to domestic violence for the vandalism. While the prosecutor made statements suggesting defendant attacked the house because he thought his ex-girlfriend was there, unsworn statements of counsel are not evidence. (Evid. Code, § 140; People v. Kiney (2007) 151 Cal.App.4th 807, 815 [counsel's unsworn statements are not evidence].) Even if fully considered, the prosecutor's only argument was based on speculation and hypotheticals and was insufficient to show that defendant's girlfriend was in any way victimized by his crimes of conviction.
The only possible evidence tying defendant's ex-girlfriend to the vandalism is the statement of the victim that he attacked them because he was mad at the mother of his children. But the statement appears to be mere speculation; there is no evidence supporting this assertion. Although defendant asked about a "bitch," it appears both the actual victims as well as the girlfriend were female, so the reference is not probative of any motive. Defendant did not attack his girlfriend or her property. She was not even aware of defendant's crime, much less a victim or even a witness thereof.
All three conditions for invalidating a probation condition under Lent have been met here. As defendant's crimes do not involve domestic violence, the condition at issue is not related to defendant's crime, does not involve conduct that is itself criminal, and is not related to his future criminality. The trial court was without authority to impose the condition under these facts and we shall modify the probation order to strike it.
DISPOSITION
Condition No. 30 is stricken. As modified, the judgment is affirmed. The trial court is directed to issue an amended order of probation.
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Hull, J.