Opinion
D075070
02-18-2020
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL MELENDREZ, Defendant and Appellant.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. JCF38000) APPEAL from an order of the Superior Court of Imperial County, Diane B. Altamirano, Judge. Affirmed. Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, for Plaintiff and Respondent.
Defendant Miguel Melendrez was charged in June 2017 with inflicting corporal injury on a cohabitant, his girlfriend N.J. (Pen. Code, § 273.5, subd. (a), count 1); and with false imprisonment by violence of N.J. (§ 236, count 2.) The offenses arose from an incident on April 27, 2017, after defendant and N.J. had a physical altercation in their bedroom when N.J. was about four-months pregnant.
All further statutory references are to the Penal Code.
Defendant in February 2018 pleaded guilty to count 1. As part of the plea agreement, the People dismissed count 2; and defendant agreed to three years formal probation, and to abide by various conditions of probation including participating in anger management and domestic violence classes.
As part of that plea and as germane to this appeal, the court issued a criminal protective order (CPO), as modified, under section 1203.097. The CPO required 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, N.J. N.J. subsequently sought to modify the CPO to lift the "no-contact" provision, which relief the court denied.
Defendant's sole contention on appeal is that, because the CPO prohibited "all contact with N.J.," it allegedly violated his "rights to free association and familial relationships." Defendant therefore seeks a remand of the matter to allow for the imposition of a "more narrowly tailored protective order" that does not restrict all contact between him and N.J.
As we explain, we reject this contention. In so doing, however, we note that to the extent defendant and/or N.J. wish to modify the CPO, either may attempt to do so by (again) filing in the trial court a petition to modify pursuant to section 1203.3, as discussed post.
FACTUAL AND PROCEDURAL BACKGROUND
On or about April 27, 2017, an El Centro police officer met with N.J. at the El Centro Regional Medical Center regarding a "physical altercation" earlier that day involving defendant. N.J. reported she and defendant had been dating for about a year, and she had moved in with him about two months earlier. Immediately before the altercation, defendant and N.J. had been arguing because defendant did not want her to leave the residence.
N.J. further reported the following to police, as described in defendant's probation report: "The defendant stood in front of her in the hallway several times to block her path and prevent her from leaving. The argument continued in the bedroom where he pushed her with both hands on her upper torso, causing her to fall backward onto the bed. He did this several times until he positioned himself on top of her and held her down using his knee on her stomach. He also hit her with his head on her upper lip. . . .
"When the defendant got off her, she ran out of the house and down the street where she encountered M[.]P[.,] who was standing in front of his house. The victim approached him and asked him to take her to the hospital because she had been in an altercation with her boyfriend who had placed his knee on her stomach during a fight and [she] was currently pregnant. P[.] drove the victim to the hospital."
The report noted the police officer saw a "bruise" on the "inside of [N.J.'s] upper lip." The nurse at the hospital informed the officer N.J. "appeared to have no other injuries."
Defendant was interviewed at his residence. He told police that he and N.J. had argued in the bedroom; that N.J. "had hit him several times with [a] closed fist on his upper body area"; and that he in response "grabbed [N.J.'s] wrists to stop her from hitting him and while doing so, he lost his balance and unintentionally fell on the right side of her stomach." The officer noted defendant "had a bump on his forehead and an abrasion to his chin," and also a bruise to his upper left thigh and inside left thigh, although it was unclear whether they were "fresh bruises." Police arrested defendant for domestic violence because "it appeared he was the aggressor and the risk factor that the victim claimed to be pregnant."
As noted ante, defendant pleaded guilty to count 1. Defendant was personally served with the CPO on February 6, 2018.
At defendant's March 23 sentencing, the court reissued the CPO effective that same day under the same terms as the February 6 CPO, except that the March 23 CPO allowed defendant to "have peaceful contact" with N.J. "as an exception to the 'no-contact' or 'stay-away' provision in items 12, 13, or 14 of this order, only for the safe exchange of children and court-ordered visitation as stated in . . . any Family, Juvenile, or Probate court order issued after the date this order is signed."
N.J. on April 5, 2018, petitioned to lift the CPO. N.J. in her petition stated that defendant was the father of their daughter, A.M.; that they loved each other and were "working things out for [their] family"; and that she never wanted the CPO, as she and defendant were "happy" together. N.J., however, did not appear at the hearing on her petition, and thus it was taken off calendar.
On April 26, 2018, N.J. filed another petition seeking modification of the CPO. In this petition, N.J. reiterated she and defendant "love each other, spend time with [their] daughter [and were] fixing [their] relationship." N.J. asked the court to "modify" the CPO, but did not specify in what manner. The court at a May 10 hearing continued the matter to May 24, and requested the probation department prepare a report addressing the issue.
On May 23, 2018, the probation department issued its report. The probation officer noted that she had visited defendant's residence on May 21 and had found N.J. and defendant together; and that as a result of the "no-contact" provision in the CPO, defendant had been arrested.
The May 23 report noted that the day after defendant's arrest, N.J. contacted defendant's probation officer and stated she and defendant were " 'fixing' their relationship" and when an issue arose, they "talk it out." N.J. also told the officer she and defendant were "spending time with each other and their baby"; she was then five-months pregnant; they were considering, but had not yet enrolled in, "couple counseling"; and she wanted the CPO lifted so she and defendant could reside together with their daughter. The May 23 report further noted defendant disclosed he allowed N.J. to stay in his residence, in violation of the CPO, because she did not have anywhere else to go, and he "could not put [N.J.] out on the street, especially being pregnant."
The probation department in its May 23 report recommended the CPO not be modified because defendant and N.J. had "disregarded" the order; and because defendant had neither enrolled in anger management classes, nor had the couple participated in "counseling" and "parenting classes."
The probation department on May 23 also filed a petition for revocation of probation pursuant to section 1203.2, based on defendant and N.J. being together on May 21; his failure to provide proof of enrollment in anger management classes, despite the April 26 court order waiving the fees for such classes; and his admission to using methamphetamine on May 20 and smoking marijuana on May 21. The petition recommended defendant's probation be revoked and reinstated; and he serve 30 days in custody, participate in "Smart Recovery," and abstain from the possession or use of drugs or narcotics unless prescribed.
The court at the May 24 hearing continued N.J.'s April 26 petition to modify the CPO, and revoked and reinstated defendant's probation, after defendant admitted to a probation violation. The court also ordered defendant to serve eight additional days in custody; to enroll and complete Smart Recovery; to report to the probation department within 48 hours of his release from county jail; and to abstain from use or possession of drugs or narcotics unless prescribed.
After a series of continuances, the court set N.J.'s hearing to modify the CPO for October 17. However, on October 10, the probation department filed a second revocation of probation petition. The October 10 petition noted defendant admitted to using methamphetamine on October 8, after he was arrested by the Imperial County Narcotic Task Force on October 9. It also noted defendant on "multiple occasions" had failed to provide proof that he was enrolled in, and attending, both a 52-week certified anger management program and Smart Recovery, in contravention of the court's orders. The October 10 petition recommended defendant's probation again be revoked and reinstated; and he serve 90 days in jail and undergo an evaluation through the Behavior Health Services Substance Use Disorder Program.
At an October 18 hearing, the court revoked and reinstated defendant's probation, ordered defendant to comply with all terms of probation, and serve 60 days in county jail. As relevant to this appeal, newly appointed defense counsel during this hearing raised N.J.'s April 26 petition to modify the CPO. The prosecutor (incorrectly) stated that petition had been denied. In reliance on the prosecutor, the court informed defense counsel that N.J. needed to file another modification petition.
N.J. on October 29 filed her third petition to modify the CPO. N.J. in this petition stated she had given birth "at home," as she went "into labor," called defendant to help her, but could not make it to the hospital in time to deliver the baby. N.J. added defendant was a "wonderful father and boyfriend"; they were "resolving [their] problems by talking and taking [their] time for the sake of [their] daughters;" and defendant did not "fight or argue" with her.
At the November 19 hearing on N.J.'s third petition to modify the CPO, N.J. informed the court she requested the modification because she wanted defendant to "see his daughter." Defendant agreed with N.J.'s request, but the People opposed it based on defendant's admission on October 18 of violating the terms of his probation. The court asked probation to prepare another report before it ruled on N.J.'s modification petition.
The probation department in response prepared a report dated December 3. The probation officer stated she attempted, but was unable, to contact N.J. before the continued hearing; that neither defendant nor N.J. were receiving any sort of counseling to better their relationship; that defendant still had not enrolled in court-ordered anger management classes; and that as such, it recommended denial of N.J.'s modification petition.
At the December 3 hearing on the petition, defense counsel noted N.J. wanted a "good conduct order" between herself and defendant. Defense counsel represented the couple had been together for about three years; N.J. had a "safety plan" in place; N.J. believed defendant was a "good father" and wanted his involvement in raising their two children; she was attending anger management classes, and up to then, had gone to about three such classes; the incident between the couple occurred in April 2017, or about a year and a half earlier; and other than the April 2017 incident, there had been no other incidents of domestic violence between them.
The record shows the court then asked defense counsel why defendant had not enrolled in anger management classes, in contravention of several court orders. Defense counsel noted defendant had recently been released from custody, he had "appointments" to enroll in such classes, and had "proof" of his enrollment, which was to occur on December 20. The record also shows the court inquired about the couple's two children. N.J. informed the court they were being cared for by her mother.
The court then denied N.J.'s petition. In so doing, the court explained it was "because the defendant hasn't taken any classes whatsoever" and he bore the burden to "show the situation has changed, that he understands what he did and accepts reasonability for it, and until he gets enrolled in some classes and completes [some] classes," it was unwilling to modify the CPO.
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).)
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).)
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, the record shows that defendant pleaded guilty to inflicting corporal injury on a cohabitant, his girlfriend N.J., which is a felony. The record further shows during an argument with N.J., defendant repeatedly pushed her, ultimately causing her to fall on their bed. He next got on top of her, and placed his knee on her stomach, despite the fact she was about four-months pregnant. Defendant used his forehead to hit N.J. on the upper lip. After pushing defendant off her, N.J. ran out of the house and down the street, encountered M.P., and asked him—but not defendant—for a ride to the hospital, out of concern for her unborn child.
We summarize the evidence in the light most favorable to the CPO. (See People v. Osband (1996) 13 Cal.4th 622, 690.)
Moreover, the record also shows that despite several court orders requiring defendant to attend a 52-week certified anger management program, Smart Recovery, and other classes as conditions of probation, defendant, as of December 3, 2018, not only had not started in any such programs or classes, but had yet to enroll in them, despite the court's May 10, 2018 order providing some or all of them at no cost to him.
In addition, the record also shows defendant and N.J. appeared to routinely violate the CPO. Defendant also violated the court order and the terms of his probation requiring him to abstain from using "any form of controlled drugs or narcotics" unless prescribed, as he admitted on October 9, 2018 using (once again) methamphetamine.
We note that "restriction 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.
Based on this record and in light of the compelling state interest to protect victims of domestic violence such as N.J. (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—including a no-contact provision—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.)
In light of our decision on the merits, we deem it unnecessary to decide the People's alternate contention that this appeal should be dismissed because defendant failed to challenge the imposition of the CPO, as opposed to the modification thereof.
As noted ante, our decision does not leave defendant and/or N.J. without recourse. Subdivision (a) of section 1203.3 provides in part: "(a) The court has the 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.
We note from the record the CPO has a three-year term, and, as noted, was issued on March 23, 2018. --------
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 N.J. 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" (now) exists will be based on a more complete record if and when such relief is sought in the trial court, using the myriad factors set forth in subdivision (b)(6) of section 1203.3.
DISPOSITION
The December 3, 2018 order denying N.J.'s petition to modify the CPO is affirmed.
BENKE, Acting P. J. WE CONCUR: O'ROURKE, J. IRION, J.