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People v. Velasquez

California Court of Appeals, Fourth District, Third Division
Mar 6, 2008
No. G037925 (Cal. Ct. App. Mar. 6, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. EDGARDO BARAJAS VELASQUEZ, Defendant and Appellant. G037925 California Court of Appeal, Fourth District, Third Division March 6, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Appeal from an order of the Superior Court of Orange County, Gregg L. Pickett, Judge. Super. Ct. No. 06NF1924. Affirmed.

Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, Raquel M. Gonzalez, and Marissa Bejarano, Deputy Attorneys General, and Lois Seong, Certified Law Student, for Plaintiff and Respondent.

OPINION

RYLAARSDAM, J.

Defendant Edgardo Barajas Velasquez appeals from an order imposing a probation condition prohibiting him from having any contact with his wife, Andrea Velasquez, the victim of his domestic violence. Defendant contends the condition violates his rights to free association and marital privacy and therefore cannot withstand constitutional scrutiny. We disagree and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2005, defendant assaulted Andrea by grabbing her everywhere, including around the neck. They wrestled in the living room. A girl intervened and during the struggle, both defendant and the girl fell on top of Andrea. Andrea did not remember telling a police officer that defendant ran over and punched her in the head using his right hand. She pleaded with defendant to stop because there were children present but he said, “I don’t give a fuck who is watching.” Defendant kicked her during the struggle.

When Andrea tried to call the police from the kitchen phone, defendant grabbed it from her and ripped it from the jack. Andrea then tried to use a cell phone but defendant took that away also. Defendant said he or one of his friends would kill her if she called the police. She managed to call the police and when they arrived she told them what happened and did not deny defendant had hit her. She told an officer she was very scared of defendant. The assault left Andrea with an eight-and-a-half-inch contusion and swelling above her left eye. Defendant had assaulted her on prior occasions as well.

Defendant received probation and a protective order was issued prohibiting him from having any personal, telephonic, or written contact with Andrea or coming within 100 yards of her. It also directed him not to have any firearms and to stay away from the residence where Andrea lives with their child, defendant’s mother, defendant’s brother, and a renter.

One year later, Andrea was four months pregnant with their second child and living at the same residence. Early one May morning, she called 911 from a bathroom and reported defendant had “showed up” and “was being very violent.” She asked the 911 dispatcher to keep her call anonymous. When questioned whether defendant had been drinking, she said she did not know and that she had to go because “he is going to come in right now.” The dispatcher told her to leave the phone on, but she replied, “It’s . . . the bathroom . . [.] going to die . . . I’m on a cell phone.”

A police officer responded to the residence. Andrea came out of the house, looking nervous and denying having called 911. She glanced several times towards a carport and shed on the east side of the house. The officer separated Andrea from the other residents. Once they were 20 to 25 feet away from the residence, Andrea told the officer that defendant and some friends had been at the residence earlier and that he was in the shed. She said she was afraid and that the officer would understand by looking at the marks on her body. The officer saw redness on the top of both arms and two bruises: a quarter-inch bruise on her upper right arm and a one-inch bruise on her lower left arm.

Defendant was locked in the shed when the officer went over and had to be ordered out. He told the officer he and Andrea were married and that there was a restraining order against him, but that she did not live there and was only picking up some clothes. He said he was playing on the computer in the shed and did not have any contact with her.

Andrea was nervous and reluctant to talk when the officer returned to speak with her. She said she and defendant lived in the back bedroom of the residence and that she had heard defendant on the phone with another woman. She confronted him and they argued about the phone call. Defendant grabbed her by the arms and pushed her several times causing her to fall back on the bed. He then spit on her. He appeared very angry.

Andrea also told the officer defendant had been carrying a black bag. A black bag was found inside a tool box on the east side of the residence. It contained a gun and ammunition.

Defendant was charged with domestic battery causing injury with a prior conviction for violence (count 1); possession of a firearm by a misdemeanant with a prior conviction (count 2); possession of ammunition by a prohibited person (count 3); and violation of a protection order resulting in physical injury to the victim (count 4.) During the trial, Andrea recanted and said she had called 911 not because she feared for her safety, but because she was angry after hearing defendant speaking with “a girl” on the phone and she did not want him at the residence. She testified defendant did not enter the house and that she could see him outside in the shed. She denied defendant had hit her and claimed he merely grabbed her while trying to restrain her. She also denied seeing defendant with the black bag containing the gun.

A jury convicted defendant of violating a protection order (count 4), but found not true that the violation resulted in physical injury to another person. It returned not guilty verdicts on the remaining counts. The court suspended sentence and placed defendant on formal probation for three years. It imposed and stayed a sentence of 365 days in jail, pending compliance with all the terms of probation. One of the conditions prohibits him from having any contact with his wife, “directly, indirectly, or through a third party except by an Attorney of Record.” Another condition states that “[u]pon completion of one year of probation, victim may then apply for a modification of the protective order.” Defendant accepted the terms and conditions of probation and replied “no” when asked if he objected to any of the terms.

The trial court also found defendant had violated his probation in two prior misdemeanor cases, including the one necessitating issuance of the protective order. For those, the court terminated probation and ordered defendant to serve the remaining time in county jail.

DISCUSSION

Defendant contends the no-contact probation condition violates his freedom of association and right to marital privacy. But he did not object to the probation condition at the sentencing hearing. The first issue we must address therefore is whether the forfeiture rule applies.

1. Waiver

As a general rule, the failure to object, at the time the probationary conditions are imposed, waives a claim of error on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237.) This rule does not extend to a facial challenge to a probation condition on constitutional grounds of vagueness and overbreadth where the issue presents a pure question of law that can be corrected without reference to the particular sentencing record developed in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 887, 889.)

Although defendant does not argue the probation term is vague or overbroad, his challenge to it on the grounds it violates his freedom of association and right to marital privacy presents a pure question of law that requires consideration of only the language of the condition and does not require reference to the factual matters presented in the record. Therefore, it falls into the category of nonwaivable claims. (People v. Smith (2001) 24 Cal.4th 849, 852; In re Kacy S.(1998) 68 Cal.App.4th 704, 713 [Welch waiver rule did not preclude appellate review of overbreadth-based challenge, raised for first time on appeal, to probation condition restricting probationer’s freedom of association].)

2. Right of Association

Penal Code“[s]ection 1203.1 gives trial courts broad discretion to impose conditions of probation to foster rehabilitation of the defendant, protect the public and the victim, and ensure that justice is done. [Citations.]” (People v. Jungers (2005) 127 Cal.App.4th 698, 702 (Jungers).) We review a probation condition for abuse of discretion. (People v. Lent (1975) 15 Cal.3d 481, 485-487 (Lent), superseded on another ground by Proposition 8 as stated by People v. Wheeler (1992) 4 Cal.4th 284, 290-295.) A sentencing court abuses its discretion when it imposes a probation condition that is “arbitrary or capricious or ‘“exceeds the bounds of reason, all of the circumstances being considered.”’” (People v. Welch, supra, 5 Cal.4th at p. 234; People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)

The court may 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).) A probation condition is valid unless it “‘(1) has no relationship to the crime of which the [defendant] 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.” (Lent, supra, 15 Cal.3d at p. 486.)

Because probation conditions foster rehabilitation and protect the public safety, they may impinge upon the constitutional rights of the probationer who is “not entitled to the same degree of constitutional protection as other citizens.” (People v. Peck (1996) 52 Cal.App.4th 351, 362.) Thus, restrictions placed upon the probationer’s right of association are permissible if reasonably necessary to accomplish these goals. (People v. Robinson (1988) 199 Cal.App.3d 816, 818.)

Here, the three-prong Lent test was satisfied. The no-contact probation condition was directly related to defendant’s conviction of violating a domestic battery protective order. It related to conduct that is not in itself criminal, namely, associating with another person. And it was reasonably related to defendant’s future criminality. The initial crime involved domestic violence, necessitating a protective order for the victim. While on probation, defendant violated that order by living with Andrea at the residence he had been ordered to stay away from. In fact, Andrea was about four and a half months pregnant with defendant’s child at the time. He then assaulted her on the day in question, causing visible bruising. “Under these circumstances, the probation condition is reasonably related to the goals of enhancing rehabilitative and deterrence objectives and protecting the victim. [Citation.]” (Jungers, supra, 127 Cal.App.4th at p. 703.) The court did not abuse its discretion in forbidding defendant from associating with his wife as a condition of his probation.

Defendant is correct that marriage is a basic civil right entitled to constitutional protection (see Loving v. Virginia (1967) 388 U.S. 1, 12 [87 S.Ct. 1817, 18 L.Ed.2d 1010] [“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival”]) and that a probation term restricting marital association implicates the constitutional rights of privacy, liberty and freedom of association and must be subjected to special scrutiny. But his reasonable expectations of free association and marital privacy have been necessarily reduced by his conviction of a crime, specifically, violating a protective order necessitated by domestic violence against his wife.

Nevertheless, probation conditions that impinge on “constitutional rights must be tailored carefully and ‘reasonably related to the compelling state interest in reformation and rehabilitation . . . .’ [Citation.]” (People v. Delvalle (1994) 26 Cal.App.4th 869, 879.) Thus, “the probation condition restricting [defendant’s] ability to contact [his wife] is valid only if it is reasonably necessary to accomplish the needs of the state and is narrowly tailored to accomplish this goal.” (Jungers, supra, 127 Cal.App.4th at p. 704.)

Defendant argues the condition is invalid because it “prohibits all contact, whether by telephone, e-mail, letter, or otherwise[]” even if his wife initiates the contact. We note, however, that the ban was not permanent. After defendant completed one year of probation (he was sentenced in October 2006), Andrea was free to apply for a modification of the protective order. The record does not reflect whether she has done so.

In In re Peeler (1968) 266 Cal.App.2d 483, the defendant pled guilty to possession of marijuana. She later petitioned for a modification of probation because she had married after the plea, but before sentencing and certain of her probation conditions were “inimical to her status as a married woman.” (Id. at p. 484.) The trial court modified her probation to provide that she was not to associate with known or reputed users of drugs. Compliance with the condition was “effectually, a command that she live apart from her husband.” (Id. at p. 488.)

Regarding the validity of the order in light of the marriage, the court noted, “The trial court here has not severed the marital union of petitioner and Peeler. Had it denied or revoked probation it would have more permanently affected the probability of the durability of the marriage. . . . [¶] We have not lost sight of the eventual acquittal of the presumptively innocent husband, with his ability to demonstrate that he is a fit consort for this petitioner, plus petitioner’s own development of a mature sense of responsibility which will permit the court again to modify the terms of probation to the end that petitioner and her husband may live happily ever after. [¶] We hold that under the peculiar circumstances of this case the conditions imposed by the court were reasonable and valid pro tempore. (The terms imposed insofar as they affect the marital status of this couple are temporary.)” (In re Peeler, supra, 266 Cal.App.2d at pp. 492-493.)

The restriction here is likewise temporary. The no-contact probation condition places the key to relief in the hands of defendant and his wife. The court expressed a willingness to monitor defendant’s progress to see whether a modification or elimination of this condition would be appropriate in the future. We conclude the no-contact probation condition was reasonable and valid and find no basis on which to strike or modify it.

DISPOSITION

The order is affirmed.

WE CONCUR: SILLS, P. J., O’LEARY, J.


Summaries of

People v. Velasquez

California Court of Appeals, Fourth District, Third Division
Mar 6, 2008
No. G037925 (Cal. Ct. App. Mar. 6, 2008)
Case details for

People v. Velasquez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. EDGARDO BARAJAS VELASQUEZ…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Mar 6, 2008

Citations

No. G037925 (Cal. Ct. App. Mar. 6, 2008)

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People v. Velasquez

In an unpublished opinion, we disagreed and affirmed the order. (People v. Velasquez (Mar. 6, 2008, G037925)…