Opinion
A148170
04-06-2017
THE PEOPLE, Plaintiff and Respondent, v. JESSIKA MARIE ALCANTARA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCR304930)
Jessika Alcantara pled nolo contendere to being an accessory to a robbery (Pen. Code, §§ 32, 211) committed by Joshua Lee Davenport, her ex-husband and the father of her children. The trial court suspended imposition of sentence and placed Alcantara on probation with various conditions, including a condition barring contact with Davenport. Alcantara contends the probation condition is overbroad and unduly interferes with her constitutional right to association.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged Alcantara with being an accessory to robbery (Pen. Code, §32) and charged Davenport and Michael Delacruz with various offenses, including the underlying robbery (§ 211).
All undesignated statutory references are to the Penal Code. The facts underlying the offense are taken from the probation report.
The Robbery and Alcantara's Statements to Police
In January 2014, law enforcement officers received a report of a robbery at a U-Haul retail location. A U-Haul employee told the officers that Alcantara and Davenport came into the business and rented a moving trailer, which they attached to Alcantara's car. Davenport and Delacruz returned to the U-Haul location and robbed the business, holding the employees at gunpoint. Police officers spoke with Alcantara at her apartment, where she denied knowing Davenport and Delacruz were going to commit a crime. She admitted knowing the two men were driving a stolen car, and seeing Davenport with a gun two weeks before the robbery.
In a police interview, Alcantara said she was married to Davenport but "not together" with him. On the day of the incident, she was moving to Texas; she had packed the car and "even got a new cell phone number" because she "didn't want [Davenport] to get a hold of [her]." Davenport found Alcantara's new phone number and called her. He said he wanted to see their children before she left. Alcantara met Davenport and she, Davenport, and others "kicked it" and smoked methamphetamine. Alcantara knew the police "wanted" Davenport, but she agreed to see him. She explained: "[I]t's hard for me . . . he doesn't take my nos. Every time I tell him no, he doesn't listen to me." Alcantara was "scared of" Davenport and did not "like to get him mad" — she did not want him to "hurt [her]."
Plea and Sentencing
In November 2015, Alcantara pled nolo contendere to being an accessory to robbery (§§ 32, 211). The presentence report noted Alcantara had an extensive criminal history involving Davenport and that Alcantara acknowledged "she has been negatively influenced by her relationship to him." According to the presentence report, Alcantara's relationship with Davenport is "over and they are now legally divorced." Before the December 2015, sentencing hearing, Alcantara moved to reduce the crime to a misdemeanor (§ 17, subd. (b)), arguing she was "a victim of domestic violence" and had been estranged from Davenport before the incident. Alcantara, however, felt she "could not refuse [Davenport's] demand" to see the children before she moved to Texas "based upon past violence toward her, as well as her knowledge of his violent behavior and past criminal history." After the incident, Alcantara divorced Davenport and had full custody of her children.
At the sentencing hearing, defense counsel urged the court to reduce the crime to a misdemeanor and noted Alcantara's "criminal history, from 2007 until this offense[,] it has all been when she has been with Mr. Davenport." Defense counsel explained Alcantara was "afraid" of Davenport: she feels he "is a violent man, as she knows both from his criminal history and behavior." The court denied Alcantara's request to reduce the felony to a misdemeanor but suspended imposition of sentence and placed Alcantara on probation for three years, based on "unusual circumstances."
The court explained: "The unusual circumstance I will find . . . by a preponderance of the evidence, that your ex-husband [Davenport] was abusive, that you did feel some duress and pressure." The court imposed various probation conditions, including a condition prohibiting contact between Alcantara and Davenport. The court observed: "[T]his could turn out well for her, or it could be more of the same. And I think the key to that is what her decision is concerning [Davenport] . . . . [¶] If you can make a break . . . and go a separate way, it is most likely better for you and most likely better for your children." Defense counsel did not object to the condition.
The court noted the decision was difficult because Davenport "is the father of [Alcantara's] children. . . . [¶] . . . [¶] how are they going to get to see their father? So it's not so clear. It's not so easy."
DISCUSSION
Alcantara challenges the probation condition barring contact with Davenport. She has forfeited this claim because she did not object in the trial court. As a general rule, the failure to object to a probation condition when it is imposed forfeits any challenge to that condition on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 880-889 (Sheena K.)); People v. Trujillo (2015) 60 Cal.4th 850, 856 ["objections to probation conditions are forfeited for appeal if not voiced at trial"].) "Applying the [forfeiture] rule to appellate claims involving discretionary sentencing choices or unreasonable probation conditions is appropriate, because characteristically the trial court is in a considerably better position than the Court of Appeal to review and modify a sentence option or probation condition that is premised upon the facts and circumstances of the individual case." (Sheena K., at p. 885.)
This general rule of forfeiture, however, does not extend to a facial challenge of a probation condition on the ground that it is unconstitutional when the constitutional challenge presents " ' "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." [Citation.]' " (Sheena K., supra, 40 Cal.4th at p. 889.) Here, Alcantara's challenge to the probation condition cannot be resolved without considering the facts and circumstances in the record, including Alcantara's criminal history with Davenport, the legal status of her relationship with him, and information regarding custody of the children. We conclude Alcantara's challenge to the probation condition does not present a pure question of law and, as a result, it is forfeited. (In re Luis F. (2009) 177 Cal.App.4th 176, 182 [objection to probation condition forfeited on appeal, despite being labeled a facial challenge]; cf. People v. Jungers (2005) 127 Cal.App.4th 698, 703 (Jungers) [defendant preserved claim for appellate review by "bringing a motion to modify or clarify" the probation order].)
To obviate an ineffective assistance of counsel claim, we consider the merits of Alcantara's claim. Alcantara contends the probation condition violates her constitutional right to freedom of association. "Because probation is a privilege and not a right [citation], a probationer is not entitled to the same degree of constitutional protection as other citizens." (People v. Peck (1996) 52 Cal.App.4th 351, 362; Jungers, supra, 127 Cal.App.4th at p. 704 [the defendant's "reasonable expectations of free association and marital privacy" were "reduced by his conviction of a crime"].) The "restriction of the right of association is part of the nature of the criminal process." (People v. Robinson (1988) 199 Cal.App.3d 816, 818.) In this respect, "[a] limitation on the right to associate which takes the form of a probation condition is permissible if it is '(1) primarily designed to meet the ends of rehabilitation and protection of the public and (2) reasonably related to such ends.' [Citations.]" (People v. Lopez (1998) 66 Cal.App.4th 615, 628 (Lopez).)
"Conditions of probation prohibiting an individual from associating with other persons including spouses and close relatives, who have been involved in criminal activity have generally been upheld when reasonably related to rehabilitation or reducing future criminality." (People v. Wardlow (1991) 227 Cal.App.3d 360, 367 (Wardlow) [no error in imposing condition of probation barring defendant from contacting two brothers involved in the same criminal activity as the defendant] (italics added); see also In re Peeler (1968) 266 Cal.App.2d 483, 492-493 [upholding probation condition prohibiting association with reputed drug users, including the defendant's husband]; People v. Celestine (1992) 9 Cal.App.4th 1370, 1375 [probation condition prohibiting the defendant from associating with other drug users, including his girlfriend, was reasonable].)
As Alcantara acknowledges, the probation condition is undoubtedly related to rehabilitation and reducing future criminality. The undisputed evidence demonstrates Alcantara had an extensive criminal history with Davenport and that he "negatively influenced" and manipulated her. Alcantara was afraid of Davenport, supporting the trial court's conclusion she committed the crime "under duress." Ample evidence supports an inference that Alcantara could not successfully complete probation if she remained in contact with Davenport. (People v. Robinson, supra, 199 Cal.App.3d at p. 818.) For these reasons, the trial court was entitled to restrict Alcantara's freedom to associate with Davenport. (Lopez, supra, 66 Cal.App.4th at p. 628; Wardlow, supra, 227 Cal.App.3d at p. 367.)
Nor are we persuaded by Alcantara's claim that the probation condition is overbroad because it bans all contact with Davenport. To be sure, "probation conditions that restrict constitutional rights must be carefully tailored and reasonably related to the compelling state interest" in reforming and rehabilitating the defendant." (Jungers, supra, 127 Cal.App.4th at p. 704.) Here, the probation condition is "carefully tailored" to promote Alcantara's rehabilitation. (See People v. Olguin (2008) 45 Cal.4th 375, 384.) At the sentencing hearing, the court considered the difficulties associated with precluding contact between Alcantara and Davenport and determined the only way for Davenport to protect her children and successfully complete probation was to "make a break . . . and go a separate way" from Davenport. (See Couzens et al., Sentencing California Crimes (The Rutter Group 2016) §8:17, p. 8-36 ["no-contact provision must be reasonably specific and must be related to the defendant's circumstances"].)
Alcantara's reliance on Jungers does not alter our conclusion. In that case, the defendant pled no contest to inflicting corporal injury on his wife, and the trial court imposed a probation order prohibiting him from "initiating contact" with her. (Jungers, supra, 127 Cal.App.4th at pp. 700, 701.) The appellate court upheld the condition, concluding it was not "a complete ban on association or marital privacy, but only a narrowly tailored condition consistent with [the defendant's] rehabilitation and the safety of the victim." (Id. at p. 705.) Here, a probation condition preventing Alcantara from initiating contact with Davenport would be ineffective — Alcantara changed her phone number but Davenport found a way to contact her, and he insisted on seeing Alcantara before she moved. Alcantara agreed, because she was afraid of Davenport and because he did not listen when she said "no." Jungers is distinguishable and does not demonstrate the probation condition here is not narrowly tailored. We conclude the probation condition is "tailored to fit the individual probationer." (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373.)
The probation condition does not, as Alcantara contends, interfere with her right to "raise her children." Alcantara is divorced from Davenport and has custody of the children. --------
DISPOSITION
The judgment is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Needham, J.