Opinion
G054156
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. DIEGO BAUTISTA ESPARZA, Defendant and Appellant.
Martin Kassman, 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, Barry Carlton and Sharon L. Rhodes, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14NF4084) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed as modified and with directions. Martin Kassman, 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, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury found Diego Bautista Esparza guilty of one count of domestic violence battery (Pen. Code, § 243, subd. (e)(1)), as a lesser included offense of domestic battery with corporal injury charged in count 1, and one count of petty theft (§ 484, subd. (a)), as a lesser included offense of second degree robbery charged in count 3. The trial court ordered Esparza to serve 180 days in jail and placed him on formal probation for three years.
Undesignated code sections are to the Penal Code.
Esparza argues (1) the trial court erred by not instructing the jury on self-defense and (2) the minutes of the sentencing hearing must be modified to correct 12 erroneous entries. We conclude the evidence at trial did not support giving a self-defense instruction and the minutes of the sentencing hearing must be corrected as set forth in the disposition. We therefore affirm the judgment as modified and with directions.
FACTS
In September 2014, Esparza and Rachiel Lopez were living together with their three children in a home in Fullerton. Esparza and Lopez had known each other for about 11 years and, during that period, had ended and resumed their relationship several times. Lopez suspected Esparza of being unfaithful to her.
Esparza and Lopez had two vehicles—a PT Cruiser and a Suburban—both registered in Lopez's name. During the evening of September 23, 2014, Lopez drove the children in the PT Cruiser to a Wal-Mart in Anaheim to buy some milk. She saw the Suburban in the Wal-Mart parking lot and parked next to it. She saw Esparza inside the Suburban with another woman. Lopez felt angry and betrayed.
Esparza and the other woman stepped out of the Suburban, and the woman ran away. Lopez stepped out of the PT Cruiser. She and Esparza argued. Lopez told Esparza to give her the keys to the Suburban, but he refused. Lopez said she was going to call the police. Esparza tried to take her cell phone; she resisted and held onto it. Lopez got in the PT Cruiser to leave and sat down on the front seat. The car door was open, and Esparza reached into the car and attacked Lopez to try to take her cell phone. Lopez kicked Esparza and elbowed him in the face to get him away from her. Lopez let go of the cell phone. During the struggle, the cell phone case broke and Lopez suffered scratches to her neck and hand.
As Lopez drove away, Esparza followed her in the Suburban. She lost him by turning off her car lights and turning onto a side street. She did not want to drive home for fear the argument would continue there and instead drove to the home of her children's babysitter.
At the babysitter's house, Lopez borrowed a cell phone and dialed 911. An audio recording of the 911 call was played for the jury and a transcript of the call was received into evidence as exhibit 3. Lopez testified she recognized her voice on the audio recording.
Lopez told the 911 dispatcher Esparza had "just tried to run me and my kids off the road." Lopez said, "I'm bleeding[,] he attacked me, he took my cell phone[,] he tried to chock [sic] me and I got away and he was following me in the truck and he [was] side[-]swiping me with my kids in the truck" and "he tried to beat the shit out of me." She asked the dispatcher to send police officers to her house because she was afraid Esparza would kill her dogs and "[G]od know[s] what." Lopez told the dispatcher Esparza was under the influence, his pupils were "black as a [hole]," and he had knives and weapons at the house.
Anaheim Police Officer German Alvarez responded to the 911 call and interviewed Lopez. She was very emotional, appeared to have been crying, and seemed to be nervous and afraid. She told Alvarez that Esparza got inside of her car, got on top of her, and choked her as he tried to take her cell phone from her hands. Lopez mentioned six times during the interview that Esparza had choked her. She said Esparza took her house keys and cell phone, and, as she drove away, pursued her and tried to force her off the road. She said she was afraid to go home. Alvarez saw scratches to Lopez's neck and a scratch to her hand but saw no severe signs of strangulation on her neck. Alvarez escorted Lopez home. Esparza, the Suburban, and Lopez's cell phone were not there. Alvarez prepared an emergency protective order for Lopez and her three children.
Detective Long Cao of the Domestic Violence Unit visited Lopez the next day. Lopez told Cao that Esparza had applied pressure to her neck while trying to take her cell phone and she had been afraid of passing out. She said Esparza took her cell phone but she was able to kick him out of the car. Cao saw no signs that Lopez had been choked or strangled, and Lopez denied having any symptoms of strangulation.
Cao spoke with Lopez again the following day. Lopez told Cao that she had had time to gather her thoughts and now recalled that Esparza had applied pressure to her throat with his right forearm, not his hands, as he had tried to wrestle the phone from her with his left hand. She said she released her grip on the phone because the pressure on her neck was getting too hard, and elbowed him in the face to get him off of her. The scratches on her neck, she said, were from the broken cell phone case and might also have caused the scratch to her hand.
On October 6, 2014, a social worker from Orange County Social Services interviewed Lopez as part of an investigation of suspected child abuse. During the interview, Lopez said that, on September 23, when Esparza had refused to give her the keys to her car, she told him she was going to call the police. When she got back inside her car to make the call, he tried to grab her cell phone. As Lopez struggled to keep her cell phone from Esparza, he put his forearm against her neck to restrain her, but she was able to get the phone away from him, shut the car door, and drive away. Esparza followed her in his car and got very close to her, as if he was trying to make her pull over. Lopez was afraid he was going to drive the car into her.
At trial, Lopez testified she could not remember if Esparza choked her, did not remember making the 911 call, and could not recall that Esparza side-swiped her car or tried to drive her off the road. She did not recall telling Alvarez that Esparza had tried to get into her car and had laid on top of her as he tried to take her cell phone from her, and did not recall telling Cao that Esparza had used his forearm against her neck as he tried to take her cell phone. Lopez believed Esparza returned her cell phone the day after the incident.
DISCUSSION
I.
The Trial Court Did Not Err by Declining to Give a
Self-Defense Instruction.
During discussions over jury instructions, defense counsel asked the trial court to instruct the jury on self-defense. The court refused, stating that it did not "see sufficient evidence to give an instruction on self-defense." Defense counsel raised the issue again the next day and requested that self-defense be included in the instructions on elements of the offenses charged. The prosecutor asserted self-defense was not "a necessary element when there is no claim of self-defense." The trial court stated: "There is no evidence of self-defense. That objection is noted and overruled." Esparza argues the trial court prejudicially erred by refusing to instruct on self-defense.
"The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant's theory of the case." (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) "'If the evidence should prove minimal and insubstantial, however, the court need not instruct on its effect.'" (People v. Ramirez (1990) 50 Cal.3d 1158, 1180.) "Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.)
Esparza was charged in count 1 with domestic battery with corporal injury and was found guilty of the lesser included offense of domestic violence battery. For an assault or battery to be in self-defense, the defendant must have "'an honest and reasonable belief that bodily injury is about to be inflicted on him.'" (People v. Minifie (1996) 13 Cal.4th 1055, 1064.) "'[A]ny right of self-defense is limited to the use of such force as is reasonable under the circumstances.'" (Id. at p. 1065.) The reasonableness requirement "is determined from the point of view of a reasonable person in the defendant's position." (Ibid.) A defendant does not have the right to self-defense if he provokes a fight with the intent to create an excuse to use force. (People v. Enraca (2012) 53 Cal.4th 735, 761-762.)
We agree with the trial court there was not substantial evidence to support a self-defense instruction. Lopez gave several versions of the incident in the Wal-Mart parking lot—in her trial testimony, her 911 call, her interview with Alvarez, and her interviews with Cao. None of these versions of events provided substantial evidence that Esparza had an actual and reasonable belief Lopez was about to inflict bodily injury on him. In each version, Lopez asked Esparza to give her the keys to the Suburban, he refused, she said she was going to call the police, and, at that point, Esparza tried to take the cell phone from Lopez. A struggle over the cell phone ensued and during that struggle, Lopez kicked and elbowed Esparza to get him away from.
Esparza focuses on two parts of Lopez's testimony to argue he was entitled to a self-defense instruction. First, he points to testimony by Lopez that she tried to take the keys to the Suburban from him and "there was a struggle over those keys while he was holding them." Second, he points to testimony by Lopez that she could not remember who got physical first. That testimony is minimal and insubstantial. Lopez testified she believed she "wanted to take the keys away from him," they argued over the keys, but she did not try to physically take the keys from him. When asked if "eventually" they struggled over the keys, she answered "I believe so" but did not say who started the struggle. Under every version of events related by Lopez, Esparza initiated the contact by trying to forcibly take Lopez's cell phone, and Lopez responded by kicking and elbowing Esparza to get away.
II.
Modification of Terms and Conditions of Probation
Esparza contends 11 terms and conditions of probation listed in the sentencing minute order must be modified or deleted to conform to the trial court's oral pronouncement. In addition, Esparza contends the statement in the sentencing minute order that "Defendant accepts the terms and conditions of probation" must be deleted because at the sentencing hearing he was not asked whether he accepted such terms and conditions.
The probation officer's report recommended the trial court place Esparza on three years' formal probation "under the following terms and conditions." At sentencing, the trial court stated it was suspending imposition of sentence and placing Esparza on supervised probation for three years "under the following terms." The court then orally recited the terms of probation, some of which matched the probation officer's recommendations and others of which did not. The record does not include a formal probation order.
"Although the traditional rule was that a court's oral pronouncement of probation conditions controlled over the written version, 'the modern rule is that if the clerk's and reporter's transcripts cannot be reconciled, the part of the record that will prevail is the one that should be given greater credence in the circumstances of the case.'" (In re D.H. (2016) 4 Cal.App.5th 722, 725.) A probation order, signed by the defendant, that recites probation conditions in detail is valid notwithstanding the fact the trial court's oral pronouncement may contain less detail. (Ibid.) But, if "there is no clear indication that the court intended to impose the version in either the minute order or the signed document," then the oral pronouncement controls. (Ibid.)
The record in this case does not include a formal probation order or a list of probation terms and conditions signed by Esparza, and there is no evidence the trial court intended to impose terms and conditions of probation other than those it orally pronounced. For those reasons, the oral pronouncement controls. (People v. Connors (2016) 3 Cal.App.5th 729, 734, fn. 3 ["we presume that the court's oral pronouncement of the new probation condition prevails over the clerk's conflicting recordation of it"].) The Attorney General agrees with Esparza the trial court's oral pronouncement of probation terms and conditions controls, except for those terms, conditions, and fines that are mandated by statute.
The following are the challenged provisions of the probation order, identified by the sequence number (Seq. No.) in the court minutes of September 16, 2016.
1. Seq. No. 21: "Do not knowingly own, use, or possess any type of dangerous or deadly weapon for 10 years." Esparza correctly argues the words "for 10 years" must be deleted because they were not included in the trial court's oral pronouncement. The Attorney General agrees.
2. Seq. No. 22: "Use true name and date of birth only at all times." Esparza correctly argues this condition must be deleted in its entirety because it was not included in the trial court's oral pronouncement. The Attorney General agrees.
3. Seq. No. 23: "Provide your Probation Officer with your current address, telephone number, employer's name, address, and telephone number, and immediately notify your Probation Officer of any changes." Esparza correctly argues this condition must be deleted in its entirety because it was not included in the trial court's oral pronouncement. The Attorney General agrees.
4. Seq. No. 31: "Do not associate with persons known by you to be illegal narcotic or drug users or sellers, and you are to stay away from places where users or sellers congregate." The Attorney General agrees with Esparza the words "and you are to stay away from places where users or sellers congregate" must be deleted because they were not included in the trial court's oral pronouncement.
5. Seq. No. 36: "Pay $150.00 Domestic Violence Discretionary Fee for all Orange County Domestic Violence Shelters." This condition was not included in the trial court's oral pronouncement. The Attorney General argues this fee is a required condition of probation under section 1203.097, subdivision (a)(11)(A). The domestic violence fee is discretionary, not mandatory, and the trial court did not exercise its discretion on the record. The clerk entering the minutes did not have the power to impose this fee, and it shall be stricken.
"The conditions of probation may include, in lieu of a fine, but not in lieu of the fund payment required under paragraph (5), one or more of the following requirements: [¶] (A) That the defendant make payments to a battered women's shelter, up to a maximum of five thousand dollars ($5,000)." (§ 1203.097, subd. (a)(11)(A), italics added.) --------
6. Seq. No. 37: "Pay $150.00 Domestic Violence [F]ee pursuant to [section] 1203.097(a)(5)." This condition was not included in the court's oral pronouncement. Section 1203.097, subdivision (a)(5)(A) provides that a term of probation must include "[a] minimum payment by the defendant of a fee of five hundred dollars ($500)." The trial court has discretion to reduce or waive this fee if, "after a hearing in open court, the court finds that the defendant does not have the ability to pay." (Ibid.) Thus, while the $500 fee is mandatory, Esparza never had the opportunity to seek a reduction or waiver of the fee because the court never orally imposed it. The clerk who entered the minutes did not have the power to reduce or waive the fee. The matter is remanded with directions to impose the full $500 fee under section 1203.097, subdivision (a)(5)(A) with the opportunity for Esparza to request a hearing regarding his ability to pay.
7. Seq. No. 38: "Pay $40.00 Court Operations Fee per convicted count pursuant to [section] 1465.8." The court operations fee was not included in the court's oral pronouncement. The fee is mandatory (§ 1465.8, subd. (a)(1)) and may be added on appellate review (People v. Rodriguez (2012) 207 Cal.App.4th 1540, 1543, fn. 2). The court operations fee cannot be imposed as a condition of probation but must be imposed as a separate order at judgment. (People v. Soto (2016) 245 Cal.App.4th 1219, 1237.)
8. Seq. No. 39: "Pay Criminal Conviction Assessment Fee per convicted count of $30.00 per misdemeanor/felony and $35.00 per infraction pursuant to Government Code [section] 70373(a)(1)." The court's oral pronouncement did not include this fee, usually called a "court facilities assessment." (People v. Soto, supra, 245 Cal.App.4th at p. 1237.) The court facilities assessment is mandatory (Gov. Code, § 70373, subd. (a)(1)) and may be added on appellate review (People v. Rodriguez, supra, 207 Cal.App.4th at p. 1543, fn. 2). The court facilities assessment cannot be imposed as a condition of probation but must be imposed as a separate order at judgment. (People v. Soto, supra, 245 Cal.App.4th at p. 1237.)
9. Seq. No. 46: "Pay $150.00 Probation Revocation Restitution Fine pursuant to [section] 1202.44. Restitution fine stayed, to become effective only upon revocation of probation." The court did not orally impose the Probation Revocation Restitution Fine. This fine is mandatory (§ 1202.44) and may be added on appellate review (People v. Rodriguez, supra, 207 Cal.App.4th at p. 1543, fn. 2).
10. Seq. No. 47: "Defendant is required to complete a new financial disclosure form if money is still owing on a restitution order or fine 120 days before the scheduled release from probation. Defendant is required to file the form with the court at least 90 days before the scheduled release from probation." This condition must be deleted in its entirety because it was not included in the trial court's oral pronouncement.
11. Seq. No. 53: "Obey all rules of the program(s) and do not leave the program without court approval." This condition must be deleted in its entirety because it was not included in the trial court's oral pronouncement. The Attorney General agrees.
12. Seq. No. 61: "Defendant accepts the terms and conditions of probation." At the sentencing hearing, the trial court did not ask Esparza whether he accepted the terms and conditions of probation. The Attorney General agrees with Esparza this entry must be deleted in its entirety from the court minutes.
DISPOSITION
The judgment is modified by striking the following from the trial court minutes of September 16, 2016:
1. Seq. No. 21, the words "for 10 years."
2. Seq. No. 22 in its entirety.
3. Seq. No. 23 in its entirety.
4. Seq. No. 31, the words "and you are to stay away from places where users or sellers congregate."
5. Seq. No. 36 in its entirety.
6. Seq. No. 47 in its entirety.
7. Seq. No. 53 in its entirety.
8. Seq. No. 61 in its entirety.
The judgment is further modified to impose, as a condition of probation, a $500 fee under section 1203.097, subdivision (a)(5)(A) unless the court finds, following a hearing in open court, that Esparza does not have the ability to pay, in which case the court may reduce or waive this fee.
The judgment is further modified to impose, by separate order and not as a term or condition of probation, a court operations fee (§ 1465.8, subd. (a)(1)), a court facilities assessment (Gov. Code, § 70373, subd. (a)(1)), and a probation revocation restitution fine (§ 1202.44).
In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modifications and to forward a certified copy to the Department of Corrections and Rehabilitation.
FYBEL, J. WE CONCUR: ARONSON, ACTING P. J. THOMPSON, J.