Opinion
F075326
07-26-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOSEPH GENSIRACUSA, Defendant and Appellant.
Lindsay Sweet, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF337248)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Brett R. Alldredge, Judge. Lindsay Sweet, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
Appellant Michael Joseph Gensiracusa pled no contest to threatening a public employee (Pen. Code, § 71, subd. (a)(1)/count 1), making criminal threats (§ 422/count 7), a misdemeanor, and 13 misdemeanor counts of disobeying a court order (§ 166, subd. (a)(4)/counts 2-6 & 8-15). On appeal, he contends: (1) two of his probation conditions are constitutionally overbroad; (2) the criminal protective order imposed by the court was unauthorized; and (3) two probation conditions that were memorialized in the clerk's minutes were not orally pronounced and should be stricken. We find merit to this last contention and modify the judgment accordingly. In all other respects, we affirm.
All statutory references are to the Penal Code.
FACTS
Gensiracusa lived in a house on San Joaquin Street in Tulare located next to a house where P.C. and C.C. lived. Gensiracusa's mother lived in a house located next to Gensiracusa's house and two houses away from P.C. and C.C.
On numerous occasions from May 6, 2015, through May 13, 2016, Gensiracusa violated a civil protective order by engaging in a continuous course of harassment against P.C. and C.C. that included challenging them to fight, cursing at them, calling them derogatory names, and uttering racial slurs.
On April 19, 2016, Gensiracusa violated the protective order by threatening to shoot C.C. in the head when she arrived home.
On June 28, 2016, the Tulare County District Attorney filed a complaint charging Gensiracusa with felony making criminal threats (count 1), misdemeanor making criminal threats (count 7) and 13 counts of misdemeanor disobeying a court order (§ 166, subd. (a)(4)/counts 2-6 & 8-15.)
On June 29, 2016, the court issued a criminal protective order that prohibited Gensiracusa from contacting P.C. and C.C. and required him to stay 50 yards away from them, but allowed him to be in his house or on his property.
On July 7, 2016, as a condition of being allowed to remain out of custody on his own recognizance, the court ordered Gensiracusa to live on Myrtle Street in Visalia in a rental unit owned by his mother, but it allowed him to contact his mother at her residence between 9:00 a.m. and 2:00 p.m., or if there was an emergency.
On August 4, 2016, at a hearing to modify the protective order, C.C. testified that since July 7, 2016, she had seen Gensiracusa at his mother's house daily at times he was not supposed to be there and that sometimes he stayed overnight. She had also seen Gensiracusa at his own house. C.C. further testified that Gensiracusa continued to engage in harassing behavior that included glaring at her, threatening her, cursing at P.C., calling them derogatory names, and making obscene gestures. Based on C.C.'s testimony, the court modified the protective order to include P.C. and C.C.'s children and to prohibit Gensiracusa from coming within 100 yards of any of them.
On November 16, 2016, the prosecutor amended count 1 of the complaint to charge Gensiracusa with threatening a public employee (§ 71), a felony. Gensiracusa then entered his no contest plea to all 15 counts in the complaint in exchange for a suspended two-year local term and a grant of probation, conditioned on Gensiracusa serving 180 days in custody. Additionally, the court indicated that at Gensiracusa's sentencing hearing it intended to modify the protective order to allow him to live at his mother's residence as long as he did not violate the order.
The amendment of count 1 was based on C.C. being an employee of the police department.
On January 4, 2017, the court modified the protective order so it required Gensiracusa to stay away from the portion of San Joaquin Avenue between Cherry and O Streets in Tulare, which encompassed the portion of San Joaquin Avenue where P.C., C.C., and their children lived.
On January 25, 2017, at Gensiracusa's sentencing hearing, C.C. read an impact statement to the court in which she requested that the court not allow Gensiracusa to return to his house. According to C.C., since the August 2016 hearing, Gensiracusa had consistently violated the court's protective order by going to his mother's house daily and, on one occasion, he stood at the end of the street and made "gun gestures" with his hand toward C.C.'s daughter. C.C. also told the court that Gensiracusa did not have to live with his mother in Tulare because several of his relatives had told C.C. they were willing to assist in caring for Gensiracusa's mother.
After recounting the numerous times Gensiracusa violated the protective order, the court sentenced him, per his negotiated plea, to a two-year local term. It then suspended execution of sentence and placed him on probation for three years subject to certain terms and conditions, including that he serve 180 days in custody. The following colloquy then ensued:
"THE COURT: You shall have no further contact with these victims pursuant to the current criminal protective order which shall be a specific condition of your probation.
"You shall not come within a hundred yards of the victims P.C., C.C. and their minor children.
"Now, paragraph 23[] appears to be contrary to what the current criminal protective order is; is that correct?
"[THE PROSECUTOR]: Yes, [y]our Honor.
"THE COURT: That's right on that same street; correct?
"[DEFENSE COUNSEL]: We discussed it at the time of the plea, that he would be allowed to live at mother's but—
"THE COURT: Well, I'm not going to make that allowance. He's obviously violated the letter or if not the spirit of that since that time."
Paragraph 23 provided that Gensiracusa would be allowed to live at his mother's residence during his probationary term.
Later in the hearing, defense counsel sought clarification as follows, regarding where Gensiracusa was able to live:
"[DEFENSE COUNSEL]: Your Honor, just to clarify, [paragraph] 23 that was deleted, he's not allowed to live at his mother's residence in Tulare, which is on the same street as the victims' residence?
"THE COURT: I'm not prohibiting him in any way to live with his mother. That should be clear.
"[DEFENSE COUNSEL]: Right.
"THE COURT: I am prohibiting him to be within that geographic location described in the criminal protective order.
"[DEFENSE COUNSEL]: Right.
"THE COURT: So he can't live with his mother or anybody on that street that's set forth in the current CPO.
"[DEFENSE COUNSEL]: Just wanted to clarify."
After admonishing Gensiracusa that a violation of probation would result in the imposition of the suspended term, the court advised him of the fees and fines he was required to pay. At no time did defense counsel object to this condition of probation or to any of the orders contained in the criminal protective order.
DISCUSSION
The Challenged Probation Conditions
Gensiracusa contends the probation conditions that require him to stay 100 yards away from the victims and prohibit him from being on San Joaquin Avenue between Cherry and O Streets infringe on his constitutional right to travel and right to possess and enjoy his own property because they prohibit him from entering his or his mother's residences. Gensiracusa further contends that the purpose of these conditions, i.e., to prevent harassment of the victims, is accomplished through the probation condition that prohibits him from contacting them. Thus, according to Gensiracusa, these conditions are overbroad. Gensiracusa forfeited these contentions by not objecting to them in the trial court.
"Whether the issue has been preserved for appeal is governed by In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.), in which the Supreme Court concluded that the failure to object to a condition of probation does not necessarily avoid the normal rule of forfeiture on appeal simply because it involves a constitutional challenge on grounds of vagueness or overbreadth. [Citation.] A challenge on such grounds is forfeited by failure to object unless the error is one that is 'capable of correction without reference to the particular sentencing record developed in the trial court.' [Citation.] In the latter circumstance, such a claim may 'present a pure question of law' properly addressed on appeal, even if there was no objection below." (In re Luis F. (2009) 177 Cal.App.4th 176, 181.)
Gensiracusa's constitutional overbreadth challenge to two of his probation conditions requires that we refer to the sentencing record developed in the trial court in order to resolve the issues he raises. Thus, we conclude that Gensiracusa forfeited his constitutional claims by his failure to interpose appropriate objections to these conditions in the trial court. Nevertheless, even if this contention were properly before us, we would reject it.
Gensiracusa cites People v. Leffel (1987) 196 Cal.App.3d 1310 to contend that he did not forfeit this issue. In Leffel, this court found that defense counsel's objection to the trial court's denial of his request for a continuance "was adequately preserved for appeal" because the court cut off counsel when he attempted to place the reasons for his request on the record. (Id. at pp. 1317-1318.) Leffel, however, is inapposite because when the court cut off defense counsel here, counsel was merely seeking a clarification of a previous statement the court made. Further, the court's statements did not suggest that it would not entertain constitutional objections to any of the conditions of probation it imposed and, following that exchange, counsel had ample opportunity to state any such objections. --------
" '[A] probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of
the condition to avoid being invalidated as unconstitutionally overbroad.' [Citation.] 'The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.' [Citation.] [¶] ... [¶] [W]e review constitutional challenges to probation conditions de novo." (People v. Appleton (2016) 245 Cal.App.4th 717, 723, italics added.)
The record shows that Gensiracusa had a long history of violating a civil protective order through his continuous harassment of P.C., C.C., and their children and that the court used increasingly restrictive methods in a futile effort to force Gensiracusa to comply with the order. On June 29, 2016, the court issued a new order that required Gensiracusa not to contact P.C. and C.C. and to stay 50 yards away from them, but allowed Gensiracusa to remain in his house. On July 7, 2016, after those restrictions proved ineffective in curbing Gensiracusa's unlawful behavior, the court required Gensiracusa, as a condition of being allowed to remain out of custody, to live in his mother's rental unit in Visalia, but it allowed him to visit her during certain specified times. Nevertheless, Gensiracusa continued to violate the protective order and on August 4, 2016, the court modified the order to cover P.C. and C.C.'s children and require Gensiracusa to stay 100 yards away from all of them. It also revoked the exception that allowed Gensiracusa to visit his mother. Further, despite the court informing Gensiracusa on November 16, 2016, that it intended to allow him to return to his house when it sentenced him, Gensiracusa continued harassing the four victims. These circumstances demonstrate that the court went out of its way to closely fit the purpose of the restrictions, i.e., to prevent the harassment of the victims, with the burden they imposed on Gensiracusa's constitutional rights. They also demonstrate that through his obstinate, unlawful conduct, Gensiracusa created the practical necessity that required the court to increase the restrictions imposed on his constitutional rights.
Further, the no contact provision in the June 29, 2016, protective order had been unsuccessful in preventing Gensiracusa from continuing to harass the victims. Additionally, the court could reasonably have found from Gensiracusa's past conduct that a no contact probation condition alone would not have prevented Gensiracusa from driving or walking by the victims' house and intimidating them by glaring or staring at them. Thus, there is no merit to Gensiracusa's contention that the purpose of the two challenged conditions was accomplished through the no contact probation condition.
Gensiracusa relies on this court's opinion in In re White (1979) 97 Cal.App.3d 141 (White) to contend that the two conditions at issue are unreasonable. In White, this court found that a probation condition that prohibited a defendant convicted of soliciting for prostitution from being in three large areas of Fresno "any time, day or night" was constitutionally overbroad. (Id. at pp. 143, 148, 150.)
White is inapposite because the conditions challenged here do not completely bar Gensiracusa from entering or passing through large geographical areas of a city at any time. Instead, they are narrowly tailored to prohibit him from being on only a small portion of a single street in Tulare and from coming within 100 yards of the victims of his harassment. Moreover, in White we found the condition at issue in that case unconstitutionally overbroad, in large part, because "there [was] little factual nexus between the proscribed activity and future criminality." (White, supra, 97 Cal.App.3d at pp. 147-148.) The opposite is true here. Living next to the victims allowed Gensiracusa to engage in a continuous course of harassment against them. The probation conditions at issue here were tailored to eliminate this proximity to the victims and to prevent future criminality of this type by Gensiracusa. And, unlike the defendant in White, Gensiracusa had shown through his conduct that less restrictive conditions would be ineffective in curbing his unlawful behavior. Accordingly, we reject Gensiracusa's contention that the two probation conditions he challenges are constitutionally overbroad.
The Protective Order
Gensiracusa cites People v. Selga (2008) 162 Cal.App.4th 113 (Selga) to contend that the protective order the court imposed pursuant to section 136.2 as a condition of probation should be stricken because it is unauthorized. Gensiracusa is wrong.
Section 136.2, subdivision (a)(1), in pertinent part states:
"Upon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, a court with jurisdiction over a criminal matter may issue orders, including, but not limited to, the following: [¶] ... [¶] (G)(i) An order protecting a victim or witness of violent crime from all contact by the defendant, or contact, with the intent to annoy, harass, threaten, or commit acts of violence, by the defendant."
"Although section 136.2 does not indicate on its face that the restraining orders it authorizes are limited to the pendency of the criminal action in which they are issued or to probation conditions, it is properly so construed. It authorizes injunctions only by courts with jurisdiction over criminal proceedings and is aimed at protecting only 'victim[s] or witness[es],' an indication of its limited nature and focus on preserving the integrity of the administration of criminal court proceedings and protecting those participating in them." (People v. Stone (2004) 123 Cal.App.4th 153, 159, italics added.)
Here, the court properly ordered Gensiracusa pursuant to section 136.2 and as a condition of probation not to have any further contact with the victims pursuant to the "current" protective order.
Gensiracusa's misplaces his reliance on Selga to contend that the protective order the court issued is unauthorized. In Selga, the trial court issued protective orders pursuant to section 136.2 on behalf of a stalking victim and her boyfriend that were effective during the pendency of the criminal proceedings. (Selga, supra, 162 Cal.App.4th at pp. 116-117.) However, the court subsequently issued a protective order on behalf of the boyfriend pursuant to section 1203.097 as a condition of the defendant's probation. (Selga, supra, at p. 119.) The defendant appealed from the imposition of the criminal protective order under section 1203.097 as a condition of probation, arguing that the boyfriend was not a protected person under that statute. (Selga, supra, at pp. 115-116.) The appellate court agreed and struck the order. (Id. at p. 121.) The court, however, did not hold that compliance with a protective order issued pursuant to section 136.2 cannot be made a condition of probation. Thus, we conclude that the court did not impose an unauthorized sentence when it made compliance with the criminal protective order it issued pursuant to section 136.2 a condition of Gensiracusa's probation.
The Discrepancy Between the Oral Pronouncement of Judgment and the Minute Order
The minute order for Gensiracusa's sentencing hearing states that as conditions of probation the court ordered Gensiracusa to reside in Tulare County unless given permission by the probation department to live elsewhere and that he could not leave the state unless his probation officer gave him permission to do so in writing. The reporter's transcript of the sentencing hearing, however, does not indicate that the court imposed these conditions.
Gensiracusa contends that the oral pronouncement of judgment should control and, therefore, these conditions should be stricken. Respondent agrees that the oral pronouncement of judgment controls here. However, respondent further contends that the matter should be remanded to the trial court so that it can decide whether to impose these conditions.
Generally, "[w]here there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Since we have no reason to doubt the accuracy of the oral pronouncement of judgment, we agree with the parties that the oral pronouncement of judgment controls and that at Gensiracusa's sentencing hearing, the court did not impose the two conditions noted above.
Respondent contends the record is ambiguous as to whether the court intended to impose these conditions and since these conditions are essential to the probation officer's ability to supervise Gensiracusa, the failure to impose these conditions may have been an oversight. Thus, according to respondent the matter should be remanded to the trial court so that it can clarify whether it intended to impose these conditions or not. We decline to do so.
Respondent did not object to the trial court's failure to impose the two conditions it omitted from its oral pronouncement of judgment. As noted earlier, the normal rule is that a failure to object to a probation condition in the trial court forfeits the issue on appeal. (In re Luis F., supra, 177 Cal.App.4th at p. 181.) It follows that respondent forfeited its right to challenge the court's omission of these conditions by its failure to interpose an appropriate objection in the trial court to this omission.
DISPOSITION
The trial court is directed to issue an amended minute order for Gensiracusa's sentencing hearing that does not state that the court ordered, as conditions of probation, (1) that Gensiracusa reside in Tulare County unless given permission by the probation department to live elsewhere; and (2) that he not leave the state unless his probation officer gives him permission to do so in writing. In all other respects, the judgment is affirmed.