Opinion
A100579.
10-9-2003
THE PEOPLE, Plaintiff and Respondent, v. LAURIE ANNE BAUSCH, Defendant and Appellant.
Defendants probation was revoked and she was sentenced to a middle term of four years in state prison for violation of a condition of probation that she avoid any contact with the victims in the case. She argues in this appeal that the condition was impermissibly vague, and she did not willfully violate it. She also complains that the trial court committed sentencing error by imposing a middle term based upon events that occurred after she was granted probation. We conclude that the no contact probation condition was not vague, and extended to indirect contact with the victims by a third party at appellants request. We further find that appellant willfully violated the probation condition, and no sentencing error occurred. We therefore affirm the judgment.
STATEMENT OF FACTS
On May 10, 2002, defendant was placed on probation for a term of five years after a jury found her guilty of the misdemeanor offenses of battery on a peace officer (Pen. Code, § 243, subd. (b)), resisting arrest (Pen. Code, § 148, subd. (a)(1)), driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), driving with a blood-alcohol level of .08 or greater (Veh. Code, § 23152, subd. (b)), and disobeying a domestic relations court order (Pen. Code, § 273.6, subd. (a)), and she entered a negotiated guilty plea to misdemeanor assault (Pen. Code, § 245) and felony child abuse (Pen. Code, § 273a, subd. (a)). One of the stated conditions of her probation was that she "have NO CONTACT with Michael, Cody, Allie Keller, Joey Bausch & Dannette Carroll," the victims in the case, who were her three children, the father of two of her children, and his current girlfriend.
All further statutory references are to the Penal Code; all references to rules are to the California Rules of Court.
At a subsequent probation revocation hearing on August 26, 2002, Michael Keller testified that a month to six weeks before the hearing he had received a recorded telephone call from "an inmate at Solano County jail." The only person Keller knew who was in the Solano County jail at that time was appellant. He immediately "hung up."
Also about a month or so prior to the hearing Keller received a telephone call at home from a woman named "Lori" who was "a co-worker" of appellant. Lori called at appellants request to inform Keller that appellant "was going to a program in Napa," that "would allow her to have visitation with the children." Although Lori was "very polite," Keller became "irritated" when he learned from her that appellant had given her his telephone number. Keller told Lori, "Dont call me again."
Appellant testified at the probation revocation hearing that she "might have" made a telephone call to Kellers residence from Solano County jail, although "it was an accident." She explained that she mistakenly dialed Kellers new telephone number, which she obtained from insurance documents, when she was attempting to call her friend Lori. The telephone call "wasnt accepted."
Appellant acknowledged that she asked Lori to call Keller. She wanted Lori to find out if Keller would agree for her to have supervised "visitation with the children on the weekend" as part of the "Family Program in Napa." If so, she then intended to tell her lawyer to request weekend visitation with the children, "with the program supervising it." Appellant knew she "couldnt call Mike" Keller, and thought "it would be best to have Lori call him." She did not realize that "by having Lori call, it was a violation" of her probation. Appellant claimed that she did not intend to violate the no contact condition of her probation.
The trial court found that appellant violated her probation, and at a subsequent sentencing hearing revoked her probation and imposed the middle term of four years in state prison for the felony child abuse offense, with concurrent sentences of one year or less for each of the misdemeanor convictions. This appeal followed.
DISCUSSION
I. The Validity and Meaning of the No Contact Probation Condition.
Appellant argues that the "no-contact" probation condition was "unconstitutionally vague" in violation of her "right to notice and due process of law." She complains that neither the language of the condition nor the trial court advised her "that she was prohibited from having indirect contact with the victims, and did not inform her that she was prohibited from having someone else contact the victims." Thus, she submits that "the no-contact order was void for vagueness and appellants probation should not have been revoked based on the alleged violation of the no-contact order."
As a threshold matter we observe that appellant did not object to the no contact condition in the trial court at the May 10, 2002, sentencing hearing, or challenge it in the trial court after it was imposed. Nothing in the record suggests that appellant was precluded from contesting the imposition of the probation condition at the sentencing hearing or denied a meaningful opportunity to seek clarification of its meaning and scope — from either the trial court or thereafter the probation department. (People v. Zuniga (1996) 46 Cal.App.4th 81, 84.) She never requested an interpretation of the meaning of the proscription against contact with the victims, and made no objection to the no contact condition until the probation revocation proceeding on October 7, 2002.
"Claims of error relating to sentences `which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner are waived on appeal if not first raised in the trial court. [Citation.] For example, the waiver doctrine precludes appellate review in cases where a defendant fails to object to the reasonableness of a probation condition. [Citation.] The California Supreme Court has explained: `A timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case. The parties must, of course, be given a reasonable opportunity to present any relevant argument and evidence. A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis. [Citation.]" (People v. Brach (2002) 95 Cal.App.4th 571, 577; see also People v. Breazell (2002) 104 Cal.App.4th 298, 304-305.) Even an objection that a condition of probation is constitutionally flawed must be interposed on that basis in the trial court in order to preserve the claim on appeal. (People v. Gardineer (2000) 79 Cal.App.4th 148, 151; In re Josue S. (1999) 72 Cal.App.4th 168, 170-171.) Finally, appellants constitutional vagueness challenge does not present a pure question of law that we exercise our discretion to resolve without reference to the particular sentencing record developed in the trial court. (Cf., In re Justin S. (2001) 93 Cal.App.4th 811, 813-815.) Had appellant questioned the no contact provision earlier in the proceedings, she would have either given the trial court an opportunity to define it further, or at least learned its meaning and limitations. Consequently, appellants failure to object to the no contact provision precludes her from claiming in this appeal that it is unconstitutionally vague on its face. (People v. Gardineer, supra, at pp. 151-152.)
We proceed to appellants contention that the no contact condition was invalid in "the manner in which it was applied" by the trial court in the probation revocation proceeding to prohibit her "from having a third person contact the victim." She maintains that the "order was not sufficient to put appellant on notice that contact with the victims through other persons was prohibited, and thus, to the extent that the order was interpreted to prohibit indirect contact, it was unconstitutionally vague." She is essentially arguing for an interpretation of the terms of the condition that limits its scope to direct contact.
A condition of probation "`. . . must be sufficiently precise for the probationer to know what is required of [her], and for the court to determine whether the condition has been violated. [Citation.]" (In re Jason J. (1991) 233 Cal.App.3d 710, 719, disapproved on another point in People v. Welch (1993) 5 Cal.4th 228, 237; see also People v. Lopez (1998) 66 Cal.App.4th 615, 630.) "`It is an essential component of due process that individuals be given fair notice of those acts which may lead to a loss of liberty. [Citations.] This is true whether the loss of liberty arises from a criminal conviction or the revocation of probation. [Citations.] [¶] "`Fair notice requires only that a violation be described with a `"reasonable degree of certainty" . . . so that `ordinary people can understand what conduct is prohibited. . . ." [Citations.]" (In re Angel J. (1992) 9 Cal.App.4th 1096, 1101-1102.)" `Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. [Citation.]" (People v. Castenada (2000) 23 Cal.4th 743, 751.)
We find nothing vague in the no contact condition. The stated terms of the condition are abundantly clear: any contact with the victims is prohibited, with no exceptions expressed or implied. The court also repeatedly advised appellant at the sentencing that the condition meant she was to "have no contact" with the victims until further order of the court, by means of "phone contact, letters, personal visit." The court additionally warned her that a "zero tolerance policy" was invoked for the term of her probation. No reasonable person would interpret the no contact provision to mean that indirect contact was nevertheless authorized. If contact through a third party was permitted, the entire purpose of the condition would be easily flouted by a defendant who merely used an intermediary to accomplish otherwise prohibited communication with the victims.
A probation condition is not void for vagueness if any "`reasonable and practical construction" can be given its language. (People v. Lopez, supra, 66 Cal.App.4th 615, 630, citation omitted.) The no contact condition before us can only be reasonably and practically construed to forbid both direct and indirect volitional contact with the named victims, and specifically contact through a third party at the request of the probationer. As so construed the restriction placed upon appellants right of association has no constitutional infirmity, and her right to fair notice was not abridged. (See People v. Robinson (1988) 199 Cal.App.3d 816, 818.)
II. The Finding of a Probation Violation .
Next, appellant argues that the evidence adduced at the probation revocation hearing did not prove her "willful violation of the no-contact order." Appellant claims that the evidence did not establish she "knew she was not allowed to have Lori call Keller, or that she intentionally and willfully violated the no-contact order by having Lori call Keller." Therefore, she "cannot be deemed to have willfully violated" the probation condition, and the revocation of her probation "must be reversed."
"`[S]ection 1203.2 provides the court may revoke probation if it has reason to believe that the person has violated any of the probation conditions." (People v. McGavock (1999) 69 Cal.App.4th 332, 337.) "`When the evidence shows that a defendant has not complied with the terms of probation, the order of probation may be revoked at any time during the probationary period. [Citations.] [Citation.]" (Id., at p. 110.) "More lenient rules of evidence apply than at criminal trials [citations], and the facts supporting revocation need only be proved by a preponderance of the evidence [citation]. . . . [Citation.]" (People v. McGavock, supra, at p. 337.)
The evidence must prove a willful violation of a probation condition. (People v. Zaring (1992) 8 Cal.App.4th 362, 379.) A willful violation requires "`simply a purpose or willingness to commit the act . . . , without regard to motive, intent to injure, or knowledge of the acts prohibited character. [Citation.] The terms imply that the person knows what he is doing, intends to do what he is doing, and is a free agent. [Citation.] Stated another way, the term `willful requires only that the prohibited act occur intentionally." (In re Jerry R . (1994) 29 Cal.App.4th 1432, 1438; see also People v. Valdez (2002) 27 Cal.4th 778, 787-788;People v. Atkins (2001) 25 Cal.4th 76, 85; People v. Lara (1996) 44 Cal.App.4th 102, 107.) The requirement of a knowing or willful violation does not additionally require proof of defendants awareness that her acts constituted a violation of the condition or was otherwise culpable in nature. (See People v. Valdez, supra, at pp. 787-788, 336-337; People v. Ramsey (2000) 79 Cal.App.4th 621, 632; People v. Honig (1996) 48 Cal.App.4th 289.)
If appellants telephone call to Keller was an "accident," as she claimed — that is, she did not intend to dial his telephone number, and did so only by mistake — the contact would be considered inadvertent rather than willful. However, the court was not required to accept appellants claim of a mistaken telephone call, and a reasonable inference may be drawn from Kellers testimony that appellant was the inmate at Solano County jail who called him, a direct contact and obvious violation of the condition. (People v. Millwee (1998) 18 Cal.4th 96, 134; People v. Wader (1993) 5 Cal.4th 610, 641.) On appeal we must of course "view the facts in the light most favorable to the judgment, drawing all reasonable inferences in its support." (People v. Cochran (2002) 103 Cal.App.4th 8, 13; see also People v. Bento (1998) 65 Cal.App.4th 179, 193; People v. Hayes (1992) 3 Cal.App.4th 1238, 1249-1250.) Further, appellant not only sanctioned Loris telephone call to Keller, but admitted that she requested it. As we have construed the probation condition to prohibit both direct and indirect contact with the victims, the finding of a willful probation violation based upon Loris call to Keller on appellants behalf is supported by ample evidence.
III. The Revocation of Probation and Imposition of a Middle Term in State Prison .
Appellants final contention is that the trial court improperly considered "events which occurred after appellant was placed on probation" in revoking her probation and imposing a state prison sentence. She claims that imposition of a middle term sentence "based at least in part on events which occurred after the date that appellant was granted probation" violated rule 4.435(b)(1).
The Attorney General has argued that appellant waived this contention by failing to object below, and appellant countered that she had no meaningful opportunity to object. We acknowledge the lack of an objection in the trial court, but under the circumstances we proceed to the merits of the issue raised by appellant to offset any claim of incompetence of counsel. (See, e.g., People v. Marshall (1996) 13 Cal.4th 799, 831-832;People v. Ashmus (1991) 54 Cal.3d 932, 976; People v. Sully (1991) 53 Cal.3d 1195, 1218; People v. Morris (1991) 53 Cal.3d 152, 196; People v. Williams (1998) 61 Cal.App.4th 649, 657.)
At the conclusion of the sentencing hearing the trial court was presented with two sentencing choices: whether to revoke appellants probation; and if so, the length of state prison term to impose. After referring to the recitation in the probation report of appellants "mental health history" and her "established pattern of violent threats of physical harm and death towards others," the court turned to the determination of "whether or not probation would be beneficial to this defendant in the interest of justice." The court pointed out that upon review of the "entire case, the defendants course of conduct," she refused to "leave these people alone" or "abide by the courts orders." The court then very briefly recited the factual basis of the convictions, followed by the conduct of appellant that "violated probation by contacting these people, albeit indirectly." Finally, the court found "that the defendant cannot be managed on probation, and theres no way to assure the safety of the victims in this case. Therefore, it is the conclusion of this court that probation in this case should be denied. The court is prepared to follow the recommendation of the probation department and to impose the midterm on Count 2," with an award of sentence credits.
The court also referred to testimony from appellants mother that appellant admitted to her that "she violated probation once" by contacting Keller.
We do not find any violation by the trial court of rule 4.435(b)(1), which "provides, in part, that when the trial court determines, following revocation of probation, that the defendant should be committed to prison, `[t]he length of the sentence shall be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term . . . . (Italics added.)" (People v. Griffith (1984) 153 Cal.App.3d 796, 799.) Under rule 4.435(b)(1), "`the acts which constituted the probation violation" may not be considered in determining the length of the term imposed following revocation of probation. (People v. Angus (1980) 114 Cal.App.3d 973, 989, citation omitted; see also People v. Colley (1980) 113 Cal.App.3d 870, 872.) As we read the record, the trial court relied upon appellants post-probation conduct solely and properly to comply with rule 4.406(b)(2), which requires a statement of reasons for denying probation and imposing a prison term. (People v. Downey (2000) 82 Cal.App.4th 899, 917.) "The inquiry upon revocation of probation is not directed to the probationers guilt or innocence but to performance on probation, that is whether the probationer violated the conditions of probation and if so what does that action signify for future conduct. The focus is whether a probationer has shown [she] can conform [her] behavior within the parameters of the law." (People v. Johnson (1993) 20 Cal.App.4th 106, 110-111.) "Obviously, a court must consider postprobation events to determine whether or not there has been a violation of probation and, if probation has been revoked, whether the defendant should be reinstated on probation or incarcerated. . . . [¶] California Rules of Court, rule [4.435(b)(1)] has no application to the decision making process delimiting the initial inquiry—namely whether or not to incarcerate the defendant or reinstate [her] to probation. That rule merely states that events subsequent to the original grant of probation cannot be considered in determining the length of the sentence under the Determinative Sentencing Act. That choice must be based solely on the circumstances existent at the time probation was granted." (People v. White (1982) 133 Cal.App.3d 677, 681-682, italics omitted.)
Rule 4.435(b)(1) now reads: "(b) Upon revocation and termination of probation pursuant to section 1203.2, when the sentencing judge determines that the defendant shall be committed to prison: [¶] (1) If the imposition of sentence was previously suspended, the judge shall impose judgment and sentence after considering any findings previously made and hearing and determining the matters enumerated in rule 433(c). [¶] The length of the sentence shall be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term nor in deciding whether to strike or specifically not order the additional punishment for enhancements charged and found."
Nothing in the trial courts statement of reasons indicates that appellants conduct after she was granted probation was considered for any reason other than to revoke her probation. The courts recitation of the acts that constituted the violation of probation immediately preceded and was related to the decision to deny probation. Only then did the court turn to the separate sentence choice of a middle term of imprisonment, without any further articulation of reasons. The court was not required to state reasons to support imposition of the middle term (rule 4.420; People v. Garcia (1985) 166 Cal.App.3d 1056, 1071; People v. Langevin (1984) 155 Cal.App.3d 520, 524), and apparently did not do so. "`"A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown."" (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 136, citations omitted; see also People v. Martinez (1998) 65 Cal.App.4th 1511, 1517.) Appellant has not affirmatively established any error in the sentencing proceedings with proof in the record that the court improperly relied upon subsequent events to impose the middle term. (People v. White, supra, 133 Cal.App.3d 677, 681-682.)
Accordingly, the judgment is affirmed.
We concur: Stein, Acting P. J. and Margulies, J.