Opinion
E066912
05-29-2018
THE PEOPLE, Plaintiff and Respondent, v. SILVIA ESTER PIERRE, Defendant and Appellant.
Allison L. Ehlert, 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, A. Natasha Cortina and Annie Featherman Fraser, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1502044) OPINION APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions. Allison L. Ehlert, 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, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Silvia Ester Pierre appeals her conviction on one count of battery by gassing, in violation of Penal Code section 243.9, subdivision (a). She contends that the trial court erred by refusing her request for an instruction on self-defense. We find no error. Nor do we find any error in the conditions of probation imposed by the trial court. Accordingly, we will affirm the judgment. We will, however, order correction of the sentencing minutes to reflect the trial court's oral pronouncement of judgment.
Penal Code section 243.9 provides, in pertinent part:
"(a) Every person confined in any local detention facility who commits a battery by gassing upon the person of any peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, or employee of the local detention facility is guilty of aggravated battery and shall be punished by imprisonment in a county jail or by imprisonment in the state prison for two, three, or four years.
"(b) For purposes of this section, 'gassing' means intentionally placing or throwing, or causing to be placed or thrown, upon the person of another, any human excrement or other bodily fluids or bodily substances or any mixture containing human excrement or other bodily fluids or bodily substances that results in actual contact with the person's skin or membranes."
All further statutory citations refer to the Penal Code.
PROCEDURAL HISTORY
Defendant was charged with and convicted by a jury of one count of battery by gassing, in violation of section 243.9, subdivision (a). At sentencing, the court reduced the offense to a misdemeanor pursuant to section 17, subdivision (b), and placed defendant on probation, subject to specified terms and conditions.
Defendant filed a timely notice of appeal.
FACTS
Defendant was arrested following an incident of domestic violence against an ex-husband. She was not charged with an offense arising out of that incident. She was taken to a jail facility in Riverside. Correctional sergeant Nicole Fischer was working that evening in female intake. When defendant was escorted into intake, she was handcuffed. She was directed to sit down on a bench. Fischer began to ask routine booking questions, but defendant did not answer. She did not make eye contact and did not appear to acknowledge Fischer's presence. Fischer thought that defendant perhaps could not hear her and moved closer to her, but defendant continued not to answer her questions. When she did finally answer some questions, she was abrupt and angry.
Fischer decided to call a facility nurse to assist in getting answers. She started to walk toward the booking counter to call the nurse. Defendant got up and began walking behind her. Concerned for her safety because defendant had not yet been searched and because she was not certain that defendant was properly handcuffed, Fischer turned and told defendant to sit down and pointed to the bench where she wanted defendant to sit. Defendant did not comply. Fischer grabbed defendant's left forearm and pushed her back toward the bench. Defendant then spat at Fischer. The spittle struck Fischer's face. Fischer then "put" defendant's "face away from [Fischer] and towards the ground," a department-approved method of control in such circumstances.
The defense relied upon the expert testimony of Michael J. Gilewski, a neuropsychologist, who testified that, based upon his observation of the video of the incident, it was his opinion that defendant's act of spitting was not voluntary but was instead a reflexive reaction to being pushed against the wall and hitting her head on the metal bar above the bench. He noted that defendant appeared to be dazed, and that she did not appear to consciously gather saliva and spit it at Fischer.
LEGAL ANALYSIS
1.
THE EVIDENCE DOES NOT SUPPORT SELF-DEFENSE
Defendant sought an instruction on self-defense, specifically, to modify the instruction on battery by gassing to include a requirement that the prosecution prove that defendant did not act in self-defense. The court denied that request, holding that the legislative purpose of section 243.9 is to prevent the spread of communicable diseases, and that spitting is not in any event an act of self-defense because it is not a reasonable response to an unlawful use of force.
Defendant contends that this was error because "self-defense is always a defense to a battery charge," and there is "no compelling reason to exclude self-defense as a defense to battery by gassing." She contends that because the standard jury instructions on other forms of battery against custodial officers and by prisoners against nonprisoners require the prosecution to prove that the defendant did not act in self-defense, the same requirement should apply to battery by gassing. She points out that a battery involving fists or weapons also poses a threat of transmission of disease because of the likelihood that blood will be spattered during the altercation.
CALCRIM No. 946, for example, provides that in order to prove a commission of battery on a custodial officer, in violation of sections 242 and 243.1, the prosecution must prove that the defendant did not act in self-defense. In contrast, CALCRIM No. 2722 does not instruct that proof that the defendant did not act in self-defense is required in order for a conviction of battery by gassing, in violation of section 243.9.
We need not address either the question of whether defendant was entitled to an instruction on self-defense or the question of whether the absence of self-defense is part of the prosecution's burden of proof, however, because the evidence does not support a finding that defendant acted in self-defense. An instruction on self-defense is warranted only if there is substantial evidence that defendant acted out of actual fear of imminent harm. (People v. Stitley (2005) 35 Cal.4th 514, 552.) Defendant did not testify, and there was no other evidence that she acted out of actual fear. Nor, at the time the court ruled on the request, did the defense make an offer of proof as to evidence that would show that defendant acted out of fear of imminent harm. Accordingly, even if self-defense is an available defense to battery by gassing, the evidence in this case does not warrant instructing the jury on self-defense. Similarly, even if the absence of self-defense is part of the prosecution's burden of proof, the omission of that element from the instruction on battery by gassing is harmless beyond a reasonable doubt because there is no evidence that supports a finding by the jury that defendant did act in self-defense. (People v. Flood (1998) 18 Cal.4th 470, 491-504 [reducing burden of proof by omitting an element of an offense from prosecution's burden of proof violates due process and is subject to the Chapman harmless error standard]; Chapman v. California (1967) 386 U.S. 18, 24 [erroneous jury instruction is harmless if it appears beyond a reasonable doubt that the error did not contribute to the conviction].) For both reasons, the omission of any instruction on self-defense does not require reversal of defendant's conviction.
The omission of an element of an offense from the jury's consideration is error under the California Constitution as well. (People v. Flood, supra, 18 Cal.4th at pp. 479-480.) For purposes of California law, such an error is subject to the prejudice test of People v. Watson (1956) 46 Cal.2d 818, 836-837, i.e., whether there is a reasonable probability that the outcome would have been more favorable to the defendant in the absence of the error. (Flood, at p. 490.)
2.
THE RESIDENCE CONDITIONS OF DEFENDANT'S PROBATION ARE VALID
The trial court imposed several conditions of probation relating to defendant's residence: that defendant must inform the probation officer of her place of residence and reside at a residence approved by a probation officer; that defendant must give written notice to the probation officer 24 hours before changing her residence; and that defendant may not move without informing her probation officer. Defendant did not object to these conditions or request any modification of them before she agreed to the terms of probation offered by the court, although she did request and receive certain other modifications. She now, however, contends that the residence conditions are unconstitutionally overbroad in that they impermissibly encroach on her constitutional rights to freedom of association and to travel. The Attorney General responds that defendant's challenge is not to the facial constitutionality of the residence conditions but is rather a challenge to those restrictions as applied to her particular circumstances. He contends that a challenge to a probation condition as applied in a particular case is forfeited if it is not raised in the trial court. Defendant acknowledges that a challenge to a probation condition may be forfeited if it is not raised below, but asserts that we "can and should" review her claim on the merits "because it is based on undisputed facts and therefore presents a pure question of law suitable for appellate adjudication."
A claim that a probation condition is unconstitutionally overbroad may be reviewed on appeal without objection in the trial court if it is capable of correction without reference to the particular sentencing record in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 878-879, 888-889 (Sheena K.).) Otherwise, the claim is forfeited. (Id. at p. 882.) As the court in Sheena K. explained, "an appellate claim—amounting to a 'facial challenge'—that phrasing or language of a probation condition is . . . overbroad because, for example, of the absence of a requirement of knowledge as in the present case, does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts" and is therefore well suited to the role of an appellate court. (Id. at p. 885.)
Here, defendant contends that the residence restriction is overbroad because there is no factual basis for concluding that there is any connection between her conviction for battery and where she chooses to live, or that requiring her to obtain her probation officer's consent to her residence will deter her from committing future crimes, or that her choice of residence could be pertinent to her rehabilitation. All of those contentions are fact based and depend upon the sentencing record in the trial court, and we could therefore deem them forfeited. However, as defendant notes, the underlying facts are not disputed. Moreover, defendant's contentions that the trial court gave the probation officer "unfettered" discretion in determining where defendant could live is a facial challenge. For these reasons, and because all of defendant's contentions apply to the residence condition, we will exercise our discretion to review them all.
Section 1203.1, subdivision (j), gives a trial court the authority to impose reasonable 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." "'Trial courts have broad discretion to set conditions of probation in order to "foster rehabilitation and to protect public safety pursuant to . . . section 1203.1."' [Citations.] If a probation condition serves to rehabilitate and protect public safety, the condition may 'impinge upon a constitutional right otherwise enjoyed by the probationer, who is "not entitled to the same degree of constitutional protection as other citizens."' [Citation.]" (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355 (O'Neil).)
The court's discretion, however, is not unlimited. A probation condition is unreasonable if 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.] But '"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."' [Citation.] '"As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or '"exceeds the bounds of reason, all of the circumstances being considered."'"' [Citation.]" (O'Neil, supra. 165 Cal.App.4th at pp. 1355-1356.) Judicial discretion to set conditions of probation is further circumscribed by constitutional considerations: where an otherwise valid condition of probation impinges on constitutional rights; such conditions must be carefully tailored to be "'"reasonably related to the compelling state interest in reformation and rehabilitation . . . ."' [Citations.]" (People v. Bauer (1989) 211 Cal.App.3d 937, 942.)
A residence condition of probation can be reasonably related to the objectives of rehabilitation and preventing future criminality. (People v. Stapleton (2017) 9 Cal.App.5th 989, 995-996.) Here, the residence conditions in general are reasonably related to those objectives. The court believed that defendant's actions arose to some extent out of mental health issues. On defense motion, the court referred her, before sentencing, for a determination of her mental competence, pursuant to Evidence Code section 1017. Based on the assessment report, the court found that defendant did not meet the criteria for mental health court. Nevertheless, at sentencing, after reviewing the assessment report, the court stated that defendant had mental health issues that needed to be addressed in order to prevent further criminal conduct. The court ordered defendant to attend counseling twice a month and to take any psychotropic medications ordered by defendant's doctor.
Placing limitations on defendant's right to choose her own residence is rationally related to the court's objective of rehabilitation and preventing future criminality in part through mental health services because defendant needed to live in an area where she had access to mental health services. She was then living in Las Vegas, where such services are presumably available, but in the absence of a probation condition requiring her probation officer's consent to any relocation, there is nothing that would prevent defendant from moving to an area where services are not available. The court recognized that defendant did not agree that she needed mental health services, and after some discussion, the court changed its initial grant of summary probation to formal probation because it thought "someone needs to be coordinating this," referring to counselling, rehabilitation and treatment the court ordered, as well as coordinating with Nevada authorities under the Interstate Compact for Adult Offender Supervision, and "keeping an eye on" defendant.
Section 11180 et seq. --------
Although the restrictions on defendant's choice of residence are reasonably related to the objectives of rehabilitation and preventing future criminality, this reasoning is not explicitly set out in the conditions of defendant's probation. We reject, however, defendant's contention that the conditions allow the probation officer to arbitrarily determine where she would reside. "A probation officer cannot issue directives that are not reasonable in light of the authority granted to the officer by the court," and a probation condition "does not grant a probation officer the power to issue arbitrary or capricious directives that the court itself could not order." (People v. Stapleton, supra, 9 Cal.App.5th at pp. 996-997, citing People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240-1241.) We will not assume that defendant's probation officer would arbitrarily order defendant to change her place of residence or would arbitrarily deny her request to move to a different residence or location. If the officer did so, however, defendant has recourse to the court to challenge the directive through a motion to modify the conditions of probation. (§ 1203.1, subd. (a).)
3.
THE SENTENCING MINUTES MUST BE CORRECTED TO REFLECT THE
COURT'S ORAL PRONOUNCEMENT OF JUDGMENT
At sentencing, the court declined to order defendant to pay the costs of probation supervision or to pay a booking fee. The court also set victim restitution to zero, based on the representation in the probation report that the victim was not requesting restitution. The sentencing minutes, however, state that a booking fee of $425.82 was imposed and that defendant was ordered to pay victim restitution in an amount to be determined by the probation department and to pay costs of the presentence probation report and the costs of probation supervision, also in an amount to be determined by the probation department.
The parties concur that because the court's oral pronouncement of judgment controls over any conflicting statements in the sentencing minutes (People v. Mitchell (2001) 26 Cal.4th 181, 185), the sentencing minutes must be corrected to reflect the court's oral pronouncement of judgment. The parties agree that the minutes must reflect that defendant is not required to pay costs of probation and is not required to pay a booking fee. The Attorney General contends, however, that the minutes are sufficiently accurate with respect to the victim restitution order. It notes that the court set victim restitution to zero based on the probation report's recommendation. Accordingly, it contends, the minute order is "not inconsistent" with the court's order where it states, "Pay victim restitution. Amount to be determined by the Probation Department." We disagree. The amount may not be determined by the probation department because the trial court expressly set the amount of restitution to zero. We will order the sentencing minutes to be corrected accordingly.
DISPOSITION
The clerk of the superior court is directed to correct the sentencing minutes to reflect that booking fees, the cost of the presentence probation report and the costs of probation supervision are waived, and that victim restitution is set at zero. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. SLOUGH
J.