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People v. Diaz

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Jan 12, 2012
A130854 (Cal. Ct. App. Jan. 12, 2012)

Opinion

A130854

01-12-2012

THE PEOPLE, Plaintiff and Respondent, v. ROSENBERG DIAZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Francisco County Super. Ct. No. 211115)

Appellant Rosenberg Diaz was tried before a jury and convicted of crimes committed during a physical altercation with the mother of his two-year-old son. In this appeal from a judgment placing him on felony probation, he challenges the constitutionality of a probation condition barring him from having contact with his son in the absence of a visitation order by the family law court. He also complains that the court violated his right to due process and equal protection under the law by admitting evidence of prior acts of domestic violence under Evidence Code section 1109. We affirm.

BACKGROUND

Appellant is the father of Christine A.'s son Anthony, who was born in 2007. When Anthony was five weeks old, appellant struck Christine during an argument. He pled guilty to a misdemeanor assault and a stay-away order was issued against him. In 2008, upset that Christine would not answer his telephone calls, appellant went to her grandmother's house and argued with Christine and her grandmother, spitting at them both. In March 2009, appellant telephoned Christine's grandmother's house and argued with her grandmother until Christine picked up the phone and told him to stop calling her. In September 2009, appellant telephoned Christine at work and said he was coming over to "look for" her. Christine felt threatened and left work early; later that day, appellant came to her apartment and banged on the door until police officers arrived.

The final altercation between the couple—the one leading to the charges in this case—occurred on October 14, 2009. Christine and her friend Yvonne M. left Christine's apartment while two-year-old Anthony played with a neighbor boy inside the apartment. When they returned, appellant was sitting in the bedroom examining text messages on Christine's cell phone. Appellant accused Christine of seeing other men, and the two of them struggled over the phone. They starting pushing and hitting each other and fell inside a closet, where they continued to struggle on the floor. Anthony was "crying and screaming," and Yvonne came inside the bedroom to try to stop the fight.

At some point during their struggle, appellant punched Christine in the face several times "like he really wanted to hurt [her]," causing her lip to bleed. According to Yvonne, appellant struck Christine "like a man would hit another man." Appellant left the bedroom after Christine threw a coffee mug at him and struck him in the forehead. On his way out of the apartment, he used a pot to break the television screen. Once outside, he began banging on the front door (which was locked) and making threats. He "messed with" the door handle, causing it to break, and kicked at the door for about 30 minutes.

Based on this evidence, a jury convicted appellant of a felony count of inflicting corporal injury on his child's parent (Pen. Code, § 273.5, subd. (a)), misdemeanor assault (Pen. Code, § 240), and two counts of misdemeanor vandalism of the television set and door handle (Pen. Code, § 594, subd. (b)(2)(A)). The court placed him on felony probation for three years, conditioned in part on his participation in a 52-week domestic violence counseling program. The court also ordered appellant to stay 150 yards away from Christine and 150 yards away from his son Anthony, unless he obtained an order by the family court allowing contact with Anthony. The court told appellant, "Just so you understand, [] I'm making this order here, this is part of the criminal case. I don't think it's a good idea for you or your son to not have contact with each other. I think that's a bad idea. I think you should have contact with your son, but it has to be done under the control of the family court, okay? [¶] So you can't have any contact with your son unless and until you go to family court and arrange for them to [set up] a structure under which you can have contact with him. [¶] I highly encourage you to do that. In no way[,] shape or form am I suggesting you should not do this by making this order, I'm suggesting right now that you should do it. However, I want you to be - I want this to be very clear. Until you do that, and unless and until the family court makes an order allowing you to see your son, which I have no control over, the judge there is going to make his or her own determination. But unless and until a family court judge says you can have contact with him you cannot." The defendant indicated he understood and the court reiterated, "I really encourage you to go to the family court. Not having contact with your son is not a good thing."

The court filed a Criminal Protective Order—Domestic Violence (Judicial Council Form CR-160, Rev. Jan. 1, 2009) memorializing the requirement that appellant not come within 150 yards of Christine or Anthony. The form indicates that appellant "may have peaceful contact with the protected persons named above only for the safe exchange of children for visitation as stated in a Family, Juvenile, or Probate court order issued after the date this order is signed, as an exception to the 'no contact' or 'stay away' provisions . . . of this order."

DISCUSSION


I. Stay-Away Order as Condition of Probation

Appellant argues that the trial court violated his constitutional right to a relationship with his son by imposing a probation condition that bars him from contacting Anthony absent a family court order allowing him to do so. (See In re Marilyn H. (1993) 5 Cal.4th 295, 307 [liberty interest in companionship of one's children].) The People respond that appellant has forfeited this challenge on appeal because he did not object to the condition in the trial court.

As a general rule, the failure to object to a probation condition at the time 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. Welch (1993) 5 Cal.4th 228, 237.) "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 does not extend to a facial challenge of a probation condition on the ground that it is unconstitutional when the constitutional challenge presents a pure question of law that can be corrected without reference to the particular sentencing record developed in the trial court. (Id. at pp. 887, 889.)

Appellant acknowledges that his argument concerning the constitutionality of the stay-away order as a probation condition is an "as-applied" challenge rather than a facial challenge involving a pure question of law. By failing to object in the trial court, he has forfeited the issue on appeal. (See Sheena K., supra, 40 Cal.4th at p. 889.) But, even if we considered appellant's challenge on its merits, we would uphold the stay-away order as a reasonable condition of probation.

A sentencing court has broad discretion to impose probation conditions that foster rehabilitation and promote public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal); see Pen. Code, § 1203.1.) " '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. . . ." [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.' " (People v. Jungers (2005) 127 Cal.App.4th 698, 702 (Jungers), quoting People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted.)

"Because probation conditions foster rehabilitation and protect the public safety, they may infringe the constitutional rights of the defendant, who is 'not entitled to the same degree of constitutional protection as other citizens.' " (Jungers, supra, 127 Cal.App.4th at p. 703.) Probation conditions infringing on a constitutional right will be upheld where they are "carefully tailored and 'reasonably related to the compelling state interest' in reforming and rehabilitating the defendant." (Id. at p. 704.)

In the case before us, appellant assaulted Christine in Anthony's presence, an act that was indisputably detrimental to the child. (See In re E.B. (2010) 184 Cal.App.4th 568, 576.) The trial court reasonably concluded that contact between appellant and Anthony should be controlled by the family court to protect Anthony from further harm. The probation order did not bar all contact between the two, as appellant suggests, but required that he go through specific legal channels to see his son. The trial court did not abuse its discretion in formulating the probation order. (Carbajal, supra, 10 Cal.4th at p. 1121.)

Appellant suggests that the condition limiting his contact with Anthony could only be supported by a showing that he was an unfit parent, citing Adoption of Kelsey S. (1992) 1 Cal.4th 816, at page 849 (Kelsey S.).) Kelsey S. is an adoption case concerned with the showing necessary to terminate parental rights and free a child for adoption; it has little if any relevance to a probation condition temporarily limiting parent-child contact in a domestic violence case.

Appellant's conviction of a crime involving domestic violence, based on acts committed in Anthony's presence, has reduced his reasonable expectation of having unrestricted contact with his son. (See Jungers, supra, 127 Cal.App.4th at p. 704.) Appellant was not the custodial parent and visitation would be the proper subject of a family court order even if there were no criminal case pending. The court did not exceed its authority or abuse its discretion in conditioning contact on a family court order.

The People also argue that the stay-away order was specifically authorized by Penal Code section 1203.097. We agree. Section 1203.097 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 . . . [¶] . . . [¶] (2) A criminal court protective order protecting the victim from further acts of violence, threats, stalking, sexual abuse, and harassment, and, if a appropriate, containing residence exclusion or stay-away conditions." Family Code section 6211, subdivision (e) defines "domestic violence" to include "abuse" perpetrated against "a child of a party." "Abuse" means, among other things, "To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another." (Fam. Code, § 6203, subd. (c).) The trial court could reasonably conclude that Anthony, though not a named victim in the corporal injury or assault counts, was a victim of domestic violence within the meaning of Penal Code section 1203.097, given his presence in the room when his mother was attacked. (Contrast People v. Selga (2008) 162 Cal.App.4th 113, 119-120 [current boyfriend of defendant's ex-girlfriend was not a person listed in Family Code section 6211 and could not be included in protective order under Penal Code section 1203.097; case remanded so trial court could consider whether to issue a no-contact order as a general condition of probation under Penal Code section 1203.1].)

II. Evidence Code Section 1109

Over defense objection, the trial court allowed the prosecution to present evidence of prior confrontations between appellant and Christine. The evidence was admitted under Evidence Code section 1109, which provides, "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." In an argument made for the purpose of preserving the issue for federal review, appellant claims that Evidence Code section 1109 is unconstitutional on its face and that the evidence of prior acts violated his federal constitutional rights to due process and to equal protection under the law.

Appellant acknowledges that challenges to the constitutionality of Evidence Code section 1109 have been rejected by a number of state appellate courts. (E.g., People v. Rucker (2005) 126 Cal.App.4th 1107, 1120; People v. Price (2004) 120 Cal.App.4th 224, 240-241; People v. Jennings (2000) 81 Cal.App.4th 1301, 1310-1313; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096.) He also recognizes that the California Supreme Court has rejected a due process challenge to the analogous provisions of Evidence Code section 1108, which allows evidence of prior sex offenses in certain cases. (People v. Falsetta (1999) 21 Cal.4th 903, 922.) We follow these authorities, which we find persuasive.

DISPOSITION

The judgment is affirmed.

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NEEDHAM, J.
We concur.

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JONES, P. J.

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BRUINIERS, J.


Summaries of

People v. Diaz

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Jan 12, 2012
A130854 (Cal. Ct. App. Jan. 12, 2012)
Case details for

People v. Diaz

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROSENBERG DIAZ, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

Date published: Jan 12, 2012

Citations

A130854 (Cal. Ct. App. Jan. 12, 2012)