Opinion
A157294
08-07-2020
THE PEOPLE, Plaintiff and Respondent, v. CRYSTAL ROSE LOCKHART, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKCRCR1896516)
After a jury convicted Crystal Rose Lockhart of threatening her neighbor, Todd Salisbury, the trial court placed Lockhart on probation for three years subject to various terms and conditions. The sole issue on appeal is the facial constitutionality of a probation condition requiring Lockhart to write a letter of apology to Salisbury, a condition to which Lockhart did not object at sentencing. Lockhart argues that the condition violates the Fifth Amendment by forcing her to incriminate herself in order to successfully complete probation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A jury found Crystal Lockhart guilty of a felony count of making a criminal threat to Todd Salisbury in violation of Penal Code section 422 and using a deadly weapon (a knife) in commission of that offense. (Pen. Code, § 12022, subd. (b)(1).) Lockhart and Salisbury lived in the same apartment complex. At sentencing, Lockhart volunteered that she "ha[d] remorse" and stated, "I do apologize if I ever caused any fear to Mr. Salisbury. I - I never tried to intimidate him in any way." The trial court placed Lockhart on 36 months of probation, and, following the recommendation of the probation department, imposed the condition that Lockhart "write a letter of apology to Mr. Salisbury." Lockhart did not object to this condition at the sentencing hearing and raises the issue for the first time on appeal.
DISCUSSION
A. Applicable Law and Standard of Review
We agree with the parties that Lockhart can challenge the probation condition for the first time on appeal because her appeal raises a facial challenge under the Fifth Amendment. It therefore presents " ' "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." ' " (In re Sheena K. (2007) 40 Cal.4th 875, 889.)
The Penal Code gives a sentencing court broad authority to impose conditions of probation "as it may determine 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 generally and specifically for the reformation and rehabilitation of the probationer." (Pen. Code, § 1203.1, subd. (j).) Although the typical standard of review for probation conditions is abuse of discretion, we review a constitutional challenge to a probation condition de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
To prevail on her facial constitutional challenge, Lockhart must show that any letter-of-apology probation condition necessarily violates the Fifth Amendment right against self-incrimination. (See People v. Patton (2019) 41 Cal.App.5th 934, 946 [a facial constitutional challenge to a probation conditions requires showing that the condition "cannot have any valid application" regardless of the specific facts of the case].) The Fifth Amendment grants individuals the right to be free of "comp[ulsion] in any criminal case to be a witness against himself." (U.S. Const., 5th Amend.) This right has long been interpreted to provide criminal defendants a right against self-incrimination throughout the course of a criminal proceeding, including at sentencing. (See Mitchell v. United States (1999) 526 U.S. 314, 327 ["[t]o maintain that sentencing proceedings are not part of 'any criminal case' is contrary to the [Federal Rules of Criminal Procedure] and to common sense"].) B. Analysis
As is evident by the different definitions provided by Lockhart and the Attorney General, there is no one meaning of "apology." The Attorney General relies on the Merriam-Webster Dictionary to argue that an apology is "an expression of regret for not being able to do something." (Merriam-Webster.com Dictionary (2020) <http://www.merriam-webster.com/dictionary/apology> [as of Aug. 7, 2020].) Lockhart points to the Macmillan Dictionary to provide an entirely different definition of apology as "a statement that tells someone that you are sorry for doing something wrong or for causing a problem." (MacmillanDictionary.com (2020) <https://www.macmillandictionary.com/us/dictionary/american/apology> [as of Aug. 7, 2020].) Lockhart argues that an apology is effectively an admission of guilt. But we find her interpretation to be overly narrow.
The Merriam-Webster Dictionary offers several definitions for apology, of which the Attorney General's example is only one. "1a. an admission of error or discourtesy accompanied by an expression of regret // a public apology[;] [¶] b. apologies plural: an expression of regret for not being able to do something // I won't be able to attend. Please give them my apologies[;] [¶] 2a. something that is said or written to defend something that other people criticize[;] [¶] b. EXCUSE [to make apology for;] [¶] 3. . . . a poor substitute or example." (Merriam-Webster.com Dictionary, supra.)
The Macmillan Dictionary's definitions also extend beyond the one Lockhart chose. "1. a statement that tells someone that you are sorry for doing something wrong or for causing a problem . . .[;] [¶] 2. a statement in which you defend or explain something such as an idea." (MacmillanDictionary.com, supra.)
Our research shows that another dictionary includes the definitions offered by both parties; an "apology" is "1. An acknowledgement expressing regret or asking pardon for a fault or offense . . . [¶] 2.a. A formal justification or defense. [¶] b. An explanation or excuse . . . ." (The American Heritage Dictionary of the English Language (5th ed. 2020) <https://ahdictionary.com/word/search/html?q=apology> [as of July 22, 2020].) Still another dictionary defines apology as "a written or spoken expression of one's regret, remorse, or sorrow for having insulted, failed, injured, or wronged another." (Dictionary.com (2020) <https://dictionary.com/browse/apology> [as of Aug. 7, 2020].) From these definitions (as well as the full Merriam-Webster and Macmillan definitions), it appears to us that an "apology" can encompass statements that express responsibility for wrongdoing, statements that express remorse, and statements that do not express either.
From this we conclude that an apology need not be confessional, and the trial court did not require a confession or admission here. Common sense tells us that there are many examples of non-confessional apologies - "I am sorry you feel that way;" "I regret the harm you've suffered," etc. In fact, Lockhart voluntarily offered a variation of such an apology to Salisbury when she said at sentencing that she was sorry if she had "ever caused any fear to [him]." Her words conveyed regret for Salisbury's injury without incriminating herself or retracting her statement of innocence; in fact, she went on to assert that she "never tried to intimidate [Salisbury] in any way."
At least one published opinion has expressed doubt that apologies containing "no admission of responsibility" are satisfactory for the purposes of restorative justice or victim restitution. (See Commonwealth v. Melvin (Pa.Super.Ct. 2013) 79 A.3d 1195, 1204 [finding that an apology expressing regret but not an "admission of responsibility for the crimes at issue" would be unlikely to comply with sentencing order requiring defendant to write apology letters to the victims of her crimes].) But Lockhart's letter-of-apology probation condition provided no indication that such an admission would be necessary here.
Lockhart argues that because the privilege against self-incrimination exists even beyond direct appeal, a letter of apology would inhibit her ability to petition for a writ of habeas corpus in the future. However, because we do not accept the premise that an apology is necessarily an admission, this argument does not change our view that the probation condition survives the facial constitutional challenge. There may be circumstances in which the requirement that a defendant write a letter of apology is a violation of the defendant's Fifth Amendment rights, but Lockhart has not shown that is always the case. Accordingly, we affirm.
DISPOSITION
The challenged order is affirmed.
/s/_________
Miller, J. WE CONCUR: /s/_________
Kline, P.J. /s/_________
Stewart, J.