Opinion
D074165
11-27-2018
THE PEOPLE, Plaintiff and Respondent, v. HARRY BERMAN, Defendant and Appellant.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Amanda Lloyd, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN380087) APPEAL from a judgment of the Superior Court of San Diego County, Sim Von Kalinowski, Judge. Affirmed. Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
Harry Berman pleaded guilty to inflicting corporeal injury to a spouse and making a criminal threat. (Pen. Code, §§ 273.5, subd. (a), 422.) Pursuant to plea agreement, the court sentenced Berman to a three-year prison term, suspended, and ordered him to serve 365 days in local custody with a portion of the time at a residential treatment program, followed by formal probation. The court ordered Berman to pay restitution in the amount of $3,171.25 to the victim and $1,778.23 to the Victim Compensation Board.
The victim was Berman's girlfriend, S.M.
Further unspecified statutory references are to the Penal Code.
Berman appeals a portion of the restitution order requiring him to reimburse the victim for two cell phones and a laptop he damaged or destroyed in uncharged incidents. He contends the evidence does not support the finding the probation restitution is reasonably required to deter his future criminality. Berman does not challenge the restitution ordered for relocation expenses paid by the Victim Compensation Board and other items submitted directly to the court by the victim. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 9, 2017, police responded to a report of domestic violence at Berman and S.M.'s home. S.M. told police Berman stepped on her foot with his boot and repeatedly threatened to harm or kill her if she left him. S.M.'s son was in another room during the incident. Berman was not present when police arrived. He was charged with making a criminal threat, trying to prevent a victim from reporting a crime, battery on a spouse, and willful cruelty to a child (February charges). The case was not resolved and Berman and S.M. continued to live together.
On November 16, 2017, during an argument, Berman slapped and kicked S.M. When she attempted to run out of their house, Berman grabbed S.M. and placed her in a chokehold, yelling, "I'm going to fucking kill you, you deserve to die." S.M. lost consciousness as Berman threw her against a wall. The back of her head hit the wall. When she revived, she saw Berman on the bed eating candy. S.M. ran out of the house screaming for help. Berman followed close behind her. Neighbors intervened and telephoned the police.
S.M. had physical symptoms consistent with strangulation, including redness around her neck, a raspy voice and bloodshot eyes. She had bruises on both thighs. Paramedics transported her to the hospital for treatment. In later interviews, S.M. said Berman had assaulted her approximately ten times during their 15-month relationship.
Berman was arrested and charged with attempted murder (§ 664), corporeal injury to a spouse (§ 273.5, subd. (a)), and making a criminal threat (§ 422). As to the first two counts, Berman was charged with personally inflicting great bodily injury to S.M. under circumstances involving domestic violence. (§ 12022.7, subd. (e).) In an interview with police following his arrest in November 2017, Berman acknowledged he and S.M. had "scuffle[d]" during an earlier incident in which he took her keys away from her.
On February 27, 2018, Berman pleaded guilty to corporeal injury to a spouse and making a criminal threat. In exchange, the prosecution dismissed the charges of attempted murder and personal infliction of great bodily injury, and the February charges. On March 27, the court imposed a three-year suspended sentence, formal probation, and 365 days in local custody with some portion to be spent in a residential treatment program. The court ordered Berman to pay victim restitution in an amount to be determined.
At a restitution hearing on May 24, S.M. sought restitution for a number of expenses related to the November 16 assault, including the loss of her keychain and a replacement car key, and rekeying the lock to the house. S.M. requested restitution for electronic devices Berman destroyed in July and September after he discovered she was documenting his abusive behaviors. S.M. testified Berman took her cell phone away when he saw that she was recording him and he broke her iPhones on two occasions. She submitted claims to her insurance company for these items and paid a $225 deductible for each iPhone. In July, Berman destroyed her work laptop by repeatedly throwing it to the ground when he realized she was documenting his abusive behaviors. She reimbursed her employer $1,231.27 for the laptop.
Defense counsel objected to restitution for the cell phones and laptop because the loss did not occur on the date of either of the charged offenses. The prosecutor said Berman had perpetrated ongoing acts of abuse on S.M., who had testified about his prior acts of violence at a preliminary hearing. The victim's losses occurred as the result of Berman's criminal conduct.
The court noted that restitution ordered as a condition of probation must be reasonably related to the crime for which the defendant was convicted or to the goal of deterring future criminality. The court found that S.M.'s losses were related to the defendant's course of abusive conduct and ordered Berman to pay restitution in the amount of $3,171.25 to S.M., including the costs to replace the two iPhones and laptop, and $1,778.23 to the Victim Compensation Board.
DISCUSSION
A
Overview
Berman contends the court abused its discretion in ordering restitution for property damage because it was not reasonably related to deterring future criminality. Drawing a distinction between domestic abuse of a person and destruction of property, Berman argues the evidence does not support a finding the probation restitution condition for the property he purportedly destroyed was reasonably related to deter any future criminal acts of domestic abuse. He points out the property destruction did not occur during any of the charged offenses and was not a result of domestic abuse.
B
Relevant Legal Principles and Standard of Review
When the court orders probation instead of incarceration, the court may impose conditions on release that are " 'fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and . . . for the reformation and rehabilitation of the probationer.' (§ 1203.1, subd. (j).)" (People v. Moran (2016) 1 Cal.5th 398, 402-403 (Moran), quoting People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) A sentencing court has broad discretion to impose conditions on probation to foster rehabilitation and to protect public safety. (Moran, supra, at p. 403.)
In People v. Lent (1975) 15 Cal.3d 481 (Lent ), the California Supreme Court held that " ' "[a] condition of probation will not be held invalid unless 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 . . . .' " ' " The Lent test is "conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Moran, supra, 1 Cal.5th at pp. 402-404.) The court is not limited to the transactions or amounts of the crime for which a defendant is actually convicted. A court may impose a restitution order as a condition of probation if it is reasonably related to the crime for which the defendant was convicted or to the goal of deterring future criminality. (People v. Snow (2012) 205 Cal.App.4th 932, 939-940 (Snow).)
"Lent's subsidiary holding concerning the use of misdemeanors for impeachment was superseded by Proposition 8 in 1982." (Moran, supra, 1 Cal.5th at p. 403, fn. 6.)
On appeal, we review the imposition of a condition of probation for abuse of discretion. (Snow, supra, 205 Cal.App.4th at p. 940.) The reviewing court will disturb the trial court's decision to impose a particular condition of probation only if, under all the circumstances, the determination is arbitrary or capricious or exceeds the bounds of reason. (Carbajal, supra, 10 Cal.4th at p. 1121.)
C
The Court Did Not Abuse Its Discretion in Ordering Berman to Pay Restitution for
Damaging or Destroying S.M.'s Cell Phones and Work Laptop
Berman's argument is fatally flawed. He challenges the court's decision only on the ground the restitution order does not further the goal of deterring future criminality. In so doing, he ignores the other ground for imposing probation restitution—that it reasonably related to the crime for which he was convicted. (Snow, supra, 205 Cal.App.4th at pp. 939-940.) In fashioning its restitution order, the trial court found that the victim's losses were related to Berman's ongoing course of conduct.
Berman attempts to distinguish between destroying S.M.'s property and physically and verbally abusing her. Relying on People v. Goulart (1990) 224 Cal.App.3d 71, in which this court held that a trial court may order defendant to pay restitution for uncharged offenses that are part of the same pattern of criminal conduct, Berman asserts the destruction of S.M.'s personal property was not part of the same pattern of criminal conduct as physical acts of domestic abuse. He argues he did not have the same state of mind when committing acts of vandalism as he did when committing acts of domestic violence. Because he did not have a history of vandalism, he concludes there was no rehabilitative purpose to the restitution award. The argument is not persuasive.
The evidence before the trial court showed that Berman engaged in an ongoing pattern of domestic abuse against S.M., culminating in strangling and injuring her on November 16, 2017. (§ 273.5, subd. (a).) The first documented incident of Berman's domestic abuse of S.M. occurred in February 2017. S.M. said he hit or strangled her approximately 10 times during their relationship. S.M. began to record and document Berman's abusive behaviors. Berman would take her cell phone away when he saw that she was recording him. On two occasions, in July and September, he broke her phones. S.M.'s testimony allows the reasonable inference Berman was either threatening physical abuse or engaging in verbal abuse at the time she was recording him. Berman also knew that S.M. had started to document his behaviors on her computer. In July, after locking her out of her personal computer, Berman destroyed her work laptop by repeatedly throwing it to the ground.
In Snow, the defendant pleaded guilty to false imprisonment of his girlfriend and was placed on probation. The reviewing court upheld a restitution award to the victim for a dental crown the defendant had knocked out of her mouth during an uncharged assault. (Snow, supra, 205 Cal.App.4th at pp. 935, 940.) The reviewing court held that the defendant's past conduct toward the victim was not merely reasonably related to the crime for which he was convicted, it was directly related. The defendant's charged and uncharged acts installed fear and facilitated his ongoing intimidation of the victim. Moreover, requiring the defendant to pay restitution to the victim for the injury she sustained during the uncharged act served the goal of deterring any future assaultive conduct by the defendant. (Id. at p. 940.)
This case is similar to Snow. The destruction of S.M.'s cell phones and laptop were not merely acts of vandalism. Instead, they were directly related to the crimes for which Berman was convicted because they were part of a pattern on ongoing domestic violence. Domestic violence is abuse perpetrated against a current or former spouse, cohabitant, person in a dating relationship, or a person with whom the respondent has had a child (domestic victim). (§ 13700, subd. (b); Fam. Code, § 6211.) Domestic abuse requires either bodily injury, attempted bodily injury, or placing the victim in "reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (§ 13700, subd. (a).) Moreover, Evidence Code section 1109 allows the admission of prior uncharged incidents of domestic abuse, as defined in the Family Code, if the prior uncharged acts occurred no more than five years before the charged offense. (Evid. Code, § 1109, subd. (a)(1), (3).) "Abuse" not only encompasses causing or attempting to cause bodily injury but also includes molesting, attacking, striking, stalking, threatening, sexually assaulting the domestic victim and, as relevant here, destroying personal property. (Fam. Code, § 6320, subd. (a); People v. Ogle (2010) 185 Cal.App.4th 1138, 1144 [stalking is an act of domestic violence under section 13700 and Family Code section 6211].)
In Brown, the defendant was convicted of vandalism under section 594 for smashing the windows in his wife's car after an argument as she was walking away from the vehicle. (People v. Brown (2001) 96 Cal.App.4th Supp. 1, 6.) On appeal, he challenged the imposition of probation terms applicable in domestic violence cases. The reviewing court determined that the defendant's crime of vandalism was an act of domestic abuse under Family Code section 6320 and held that the trial court did not abuse its discretion in imposing probation terms applicable in domestic abuse cases to defendant's conviction for vandalism. (Brown, at pp. 39-40 & fn. 6.)
Similarly, Berman's vandalism constitutes acts of domestic abuse as defined in section 13700 and Family Code section 6320. In damaging or destroying S.M.'s cell phones and work laptop, Berman not only prevented S.M. from collecting evidence to protect herself from his ongoing abuse but also placed her in reasonable apprehension of imminent serious injury. (People v. James (2010) 191 Cal.App.4th 478, 483 [burglary placed victim of ongoing domestic abuse in reasonable apprehension of serious injury].) The destruction of the S.M.'s property is a prohibited act of abuse. (Fam. Code, § 6320, subd. (a); see Evid. Code, § 1109, subd. (a)(1), (3).) The trial court did not abuse its discretion in requiring Berman to pay restitution to S.M. for the loss of her cell phones and work laptop. Berman's vandalism was not only reasonably related to the crime for which he was convicted, it was directly related. His charged and uncharged acts were part of the same pattern of domestic abuse. (Snow, supra, 205 Cal.App.4th at pp. 935, 940.) Moreover, requiring the defendant to pay restitution to the victim for the loss of her property discourages any additional abusive conduct by the defendant, and therefore furthers the goal of deterring future criminality.
DISPOSITION
The order is affirmed.
HALLER, J. WE CONCUR: BENKE, Acting P. J. IRION, J.