Opinion
A143504
01-23-2018
THE PEOPLE, Plaintiff and Respondent, v. DOMINIC BATISTE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. SCN220664)
A jury convicted appellant Dominic Batiste of assault by means of force likely to cause great bodily injury, but found him not guilty of participation in a street gang. The jury also found the street gang enhancement not to be true. A mistrial was declared regarding a robbery charge. Following a negotiated plea bargain, appellant entered a guilty plea on the robbery charge in exchange for a grant of probation. The court suspended imposition of sentence and placed appellant on probation for three years, with various terms and conditions including that he not come with 150 yards or three blocks of the corner of 24th Street and Mission Street. On appeal, appellant argues that substantial evidence does not support the jury's great bodily injury finding. He also contends the court erred by imposing an overbroad condition of probation. We affirm.
I. EVIDENCE AT TRIAL
A. The Offense
At approximately 10:40 p.m. on June 16, 2013, Fidel Miam ate dinner at a taqueria at 24th and Mission Streets in San Francisco. After he ate, Miam went to a nearby bar and drank about three or four beers while playing pool. Miam left the bar around 2:20 a.m., not feeling particularly intoxicated, and he walked to a nearby bus stop. While waiting for the bus, he encountered an acquaintance, Victor Ramirez. Miam and Ramirez talked for a few minutes, then decided to catch the bus at 23rd Street. Miam and Ramirez walked toward 23rd Street and observed three men approaching them. The three men were later identified as appellant and his two co-defendants, Romario Pineda, and Jaime Linares. As the two groups neared each other, one of the three men stepped forward and punched Miam in the temple. Miam fell backwards, striking his head against a wall, and Ramirez fled. As Miam lay on the ground, the three men punched and kicked him. Miam curled into a ball to protect his ribs, but the men continued to hit and kick other exposed portions of his body, including his head. One of the men placed his foot on Miam's forehead and "tried to squash [his] head against the ground." Miam "grabbed [the man's] balls" and pulled him to the ground. The other two men continued to hit and kick Miam. Miam thought the men were trying to kill him, and he begged them to stop. One or more of the men rifled through Miam's pockets, taking his keys, sunglasses, cell phone, paycheck stub, and about $150 in cash. The men eventually left, whooping in triumph.
After two or three minutes, Miam stood up and sought assistance. Miam saw some acquaintances and they called the police; and Miam told a responding officer what had happened. The officer drove Miam around the neighborhood, and Miam observed the three men at a taqueria. Other officers arrested the men and recovered some of Miam's stolen property.
Miam wrote a summary of the incident at the police station, and an officer took photographs of his injuries. Miam had cuts and bruises on his face, swollen fingers, and bruises on his shoulders and legs.
At trial, Miam positively identified appellant as one of the three men who had attacked him. Miam was certain that all three of the men had hit and kicked him, and he believed appellant was the man who had tried to "squash" his forehead.
A surveillance videotape from a location on 23rd Street was played for the jury during Miam's testimony. Miam confirmed that the videotape showed him being punched in the head and falling into a doorway between two buildings. Miam's friend, Ramirez, walked away, and the three men followed Miam into the doorway and emerged after about 83 seconds. Miam walked out of the entryway about two or three minutes later.
We have reviewed the surveillance footage included in the record on appeal.
On cross-examination, Miam acknowledged that there were a few discrepancies between his testimony on direct examination and other evidence. As examples, Miam had testified that he had first been punched by the shortest of the three men, but the surveillance video and Miam's written statement to the police indicate that he had first been punched by the tallest man in the group. Also, it appears that Miam had referred to Linares, not appellant, in his written statement describing how he had "grabbed the balls" of one of the assailants. When questioned about these discrepancies by the defense attorney on cross-examination, Miam said that his written description of the incident was probably more accurate than his trial testimony. Miam was nonetheless certain that all three of his assailants had hit and kicked him when he was on the ground. B. Other Evidence
Police officers described how they had arrested appellant, Linares, and Pineda. At the time of the arrest, all three men had red stains (which appeared to be blood) on their shoes. Pineda and Linares were wearing tennis shoes, and appellant was wearing Timberland boots. Appellant also had blood on his jeans, and $192 cash in his pockets. Pineda had Miam's sunglasses, paycheck stub, and keys.
Other officers testified that Miam had obvious facial injuries when they talked to him after the incident, but the injuries did not appear to require immediate medical treatment, and Miam did not ask to be taken to a hospital. C. Defense Case
Forensic nurse Tara Godoy testified as an expert in blunt force trauma. Godoy had reviewed police reports and photographs of Miam taken shortly after the incident. Godoy noticed several injuries on Miam's face, including black eyes and abrasions, bleeding in the whites of the eyes, a swollen (and possibly broken) nose; dried blood in the nostrils, and bruising on top of the forehead. Godoy did not believe Miam's injuries had been life-threatening. She noted the following: Miam said he did not lose consciousness during the attack; Miam spoke coherently with acquaintances and the police immediately after the attack; Miam never requested or obtained medical treatment; the police officers who spoke with Miam saw no need to call an ambulance; and the photos taken by the police showed no serious deformity to Miam's face. Godoy thought it was possible that Miam had suffered a minor skull fracture from the attack, possibly by hitting his head against the wall after the first punch, but she said that such fractures generally heal without treatment.
On cross-examination, Godoy acknowledged that a person can sustain great bodily injury from punches or kicks to the head or torso. She added that a powerful blow to the head can cause death or serious brain damage, and a blow to the torso can be fatal if it strikes a vulnerable organ like the liver or intestines. Godoy also said that the danger of serious injury is increased if the victim is kicked by an assailant wearing boots like those worn by appellant at the time of his arrest. Godoy also acknowledged that the red stains on appellant's boots "easily" could have been blood.
II. DISCUSSION
A. Substantial Evidence Supports the Finding that Appellant Used Force Likely to Produce Great Bodily Injury
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 701.)
" 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' [Citation.] Unless it describes facts or events that are physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Elliott (2012) 53 Cal.4th 535, 585.)
Penal Code section 245 prohibits an assault "by any means of force likely to produce great bodily injury." (Pen. Code, § 245, subd. (a)(4).) "Great bodily injury" means "bodily injury which is significant or substantial, not insignificant, trivial or moderate." (People v. McDaniel (2008) 159 Cal.App.4th 736, 748.) "Because the statute speaks to the capability of inflicting significant injury, neither physical contact nor actual injury is required" to establish the elements of the offense. (People v. Brown (2012) 210 Cal.App.4th 1, 7; see People v. Aguilar (1997) 16 Cal.4th 1023, 1028 [because section 245 "focuses on . . . force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial"].) " ' "The issue, therefore, is not whether serious injury was caused, but whether the force used was such as would be likely to cause it." ' [Citation.]" (People v. McDaniel, supra, 159 Cal.App.4th at p. 748.) If, however, injury is inflicted, the location and extent of such injury may be considered in connection with other evidence to determine whether the assault was of the sort likely to cause great bodily injury. (People v. Brown, supra, 210 Cal.App.4th at p. 7; People v. Beasley (2003) 105 Cal.App.4th 1078, 1086.)
It is well-established that "the use of hands or fists alone may support a conviction of assault 'by means of force likely to produce great bodily injury.' " (People v. Aguilar, supra, 16 Cal.4th at p. 1028; see also People v. Wingo (1975) 14 Cal.3d 169, 176.) Similarly, a defendant's act in kicking the victim with shod feet has been found sufficient to support a conviction for assault by means of force likely to produce great bodily injury. (People v. Aguilar, supra, 16 Cal.4th 1023, 1027, 1035-1036; see also Gonns v. United States (10th Cir.1956) 231 F.2d 907, 908 [applying California law].) "[T]he kicking on the head and torso of a largely defenseless man on the ground appears to us to be unmistakably an assault which a jury could reasonably find was likely to produce great bodily harm." (People v. Roberts (1981) 114 Cal.App.3d 960, 965.)
It is true, as appellant notes, that Miam did not seek medical attention, lose consciousness, or suffer any long-term effects from the blows. However, the critical determination is not whether Miam actually suffered great bodily injury, but whether the nature of the force inflicted by appellant and the circumstances under which he applied such force was likely to cause great bodily injury. (People v. McDaniel, supra, 159 Cal.App.4th at pp. 748-749.) Miam testified he had been attacked by all three men, including appellant. Although there was conflicting evidence as to which man threw the initial punch, Miam was sure that all three men hit and kicked him when he was on the ground. Miam stated after the attack that he had lacerations to his face and nose, as well as swollen fingers, and bruises on his shoulder and leg. Considered in the aggregate, this is sufficient evidence for the jury to find appellant committed assault by means of force likely to produce great bodily injury.
Miam identified appellant as one of the men who kicked and hit him while he was on the ground. To the extent Miam was unable to pinpoint whether appellant was the person who tried to stomp on his head, the inability is irrelevant for our purposes. Controlling authority holds that a defendant can be found to have personally inflicted great bodily injury where the defendant physically joins a group attack and directly applies force to a victim that is sufficient to inflict, or to contribute to the infliction of, great bodily harm. (People v. Modiri (2006) 39 Cal.4th 481, 486.) That is precisely the circumstance here. B. The Challenged Probation Condition is Not Unconstitutionally Overbroad
Appellant argues the probation condition prohibiting him from being within three blocks of 24th Street and Mission Street should be stricken because it is not related to the crime or future criminality, is unconstitutionally overbroad and impairs his rights to travel. The Attorney General argues appellant has forfeited his challenge to this condition because he failed to object at the sentencing hearing and his claim does not fall under the narrow exception to the forfeiture rule. In the alternative, the Attorney General asserts the geographical restrictions on appellant's constitutional rights to travel are not overbroad but are reasonably related to the crime appellant committed and to his future criminality.
On the recommendation of the probation department, the trial court imposed a condition that appellant stay away from the victim and the co-defendants. At the sentencing hearing, the district attorney requested an additional order that appellant stay-away from 24th and Mission Streets in San Francisco. Granting that request, the trial court imposed the following condition: "All right. So you also have to stay away, I'm presuming it's 150 yards. So that's like at least three blocks in all directions of 24th and Mission. Okay. That's a pretty big swath. So don't even walk through there. You have to take the long way around. Stay out of that area, okay." Appellant indicated he understood, and counsel did not object to the condition.
The record is silent as to the scope of this stay-away condition.
Where a claim that a probation condition is facially overbroad and violates fundamental constitutional rights is based on undisputed facts, it may be treated as a pure question of law, which is not forfeited by failure to raise it in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.); People v. Welch (1993) 5 Cal.4th 228, 235.) As the court in Sheena K. explained, the doctrine of forfeiture on appeal does not apply to challenges to probation conditions based on "facial constitutional defects" that do "not require scrutiny of individual facts and circumstances." (Sheena K., supra, 40 Cal.4th at pp. 885-886.) However, the forfeiture doctrine does apply if the objection involves a discretionary sentencing choice or unreasonable probation conditions "premised upon the facts and circumstances of the individual case." (Id. at pp. 885, 888.)
Here, appellant claims that even though he did not object to this condition on constitutional grounds at sentencing, his overbreadth argument presents a facial constitutional challenge with pure questions of law based on undisputed facts and, thus, can be properly raised on appeal for the first time. We agree.
We focus on the constitutionality of the condition, not whether it is reasonable as applied to defendant. (See People v. Lent (1975) 15 Cal.3d 481, 486 [test for reasonableness of probation conditions].) By failing to object below, defendant has forfeited all claims except a challenge "based on the ground the condition is vague or overbroad and thus facially unconstitutional." (Sheena K., supra, 40 Cal.4th at p. 878.) --------
To be valid, a probation condition "must (1) . . . relate[ ] to the crime of which the defendant was convicted, or (2) relate to conduct that is criminal, or (3) require or forbid conduct that is reasonably related to future criminality." (People v. Bauer (1989) 211 Cal.App.3d 937, 942 (Bauer).) "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." ' " (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355 (O'Neil), quoting People v. Lopez (1998) 66 Cal.App.4th 615, 624.) But an otherwise valid condition that impinges upon constitutional rights "must be carefully tailored, ' "reasonably related to the compelling state interest in reformation and rehabilitation . . . ." ' " (Bauer, supra, 211 Cal.App.3d at p. 942, quoting In re White (1979) 97 Cal.App.3d 141, 146.)
"A restriction is unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' [Citations.] 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." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
However, even a facial challenge to constitutionality requires more than a one-size-fits-all approach. Our inquiry does not take into account the individual facts pertaining to this particular probationer—as would an "as applied" challenge—but it must take into account the nature of the case and the goals and needs of probation in general. For example, what is constitutional in a case involving drug usage is not necessarily the same as what is constitutional in a theft-related case or, as here, a case involving an assault. This broad consideration of the nature of the case must inform all decisions about whether the condition has been "narrowly tailored," even where, as here, we do not reach the personal circumstances of the probationer.
Here, the offense is assault with force likely to cause great bodily injury. The appropriate inquiry therefore, is whether the probation condition is reasonably related to the supervision of a person convicted of that crime. Appellant argues that the condition prohibiting him from being within three blocks of where the assault took place violates his right to intrastate travel and is not specifically tailored to his needs. However, as to intrastate travel, probation by its very nature often limits the exercise of what would be unqualified constitutional rights, including the right of travel. (In re White, supra, 97 Cal.App.3d at pp. 149-150.) Further, the requirement that appellant not come within three blocks of where the assault occurred is directly related to the crime of which appellant was convicted. Thus, placing this narrowly drawn "security blanket" on an area of interest, such as an intersection where the assault took place, is fundamentally within the scope and intent contemplated by the governmental interests and is therefore valid. (See id. at p. 150.)
Moreover, the societal interest of protecting the victim from any further harm reasonably outweighs appellant's interest in being within three blocks of the scene of the crime. To the extent appellant argues that we should modify the condition to require him to stay 25 feet away from the restaurant where the assault occurred, we find no compelling reason to interfere with the trial court's sentencing discretion. (See U.S. v. Lowe (9th Cir. 1981) 654 F.2d 562, 568 ["Absent compelling reason for appellate interference, the task of line-drawing in probation matters is best left to the discretion of the sentencing judge."] Given the alternatives of imprisonment or some greater restriction upon appellant's movement, the three-block limit is reasonable. In any event, if appellant is able to show a pressing need to be within the precluded vicinity of 24th Street and Mission for reasons of employment, school or other related matters, he has the option of seeking a modification. (See e.g., People v. Lopez, supra, 66 Cal.App.4th at p. 638.) Accordingly, we conclude the trial court properly exercised its discretion when it imposed this probation condition.
III. DISPOSITION
The judgment is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
RUVOLO, P. J. /s/_________
STREETER, J.