Opinion
C087804
10-25-2019
THE PEOPLE, Plaintiff and Respondent, v. J.P., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MAN-CR-FDV-2017-0010817)
After defendant J.P. filed a timely notice of appeal, appellate counsel was appointed to represent him. Appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), in which she raises no issue for appeal and asks this court for an independent review of the record. Defendant was advised of his right to file a pro per supplemental brief, a right which he has exercised. Having reviewed the record as required by Wende, we find no error that would result in a disposition more favorable to defendant. Accordingly, we will affirm the judgment.
BACKGROUND
Defendant was charged with corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) arising out of an incident that occurred on or about August 1, 2017, and resulted in the issuance of a criminal protective order under section 136.2 prohibiting defendant from contacting the victim, T.S. Defendant was separately charged with misdemeanor corporal injury on a spouse in a second earlier case arising out of a domestic violence incident that occurred on or around July 3, 2017.
Undesignated statutory references are to the Penal Code.
The People moved to consolidate these cases and presented evidence regarding them at a preliminary hearing for the felony matter. At that hearing, T.S. testified that she was married to defendant when, on July 1, 2017, he assaulted her in the hallway of their home. He pushed his foot onto her foot, while slamming her into the wall, leaving a knot on her head. Defendant then pushed her to the floor, still holding her foot in place, causing an injury to her toe and ankle. Defendant kicked her seven to 10 times while she was on the floor. T.S. did not report the incident to the police, but her doctor contacted authorities after she sought treatment for her injuries. Defendant was arrested on July 4, 2017.
A few days later, T.S. received a typed note on her door that read, "Fix this or you're dead. Remember the mines." T.S. believed the note came from defendant because they had visited mines together and discussed the tour guide's comments about the mines being a perfect place to dispose of a body. T.S. did not report the note to police and threw it away because she was scared. Following the first instance of abuse, she had multiple contacts with defendant's private investigator and defendant's sister-in-law. T.S. felt afraid and wanted defendant to know she was trying to help. She made statements to various people suggesting she may have had a seizure and was confused, as well as relaying other information that she believed might be helpful to defendant's defense.
On or around July 13, defendant promised it would never happen again, and returned to live in their home on July 14. A few weeks later, on August 1, defendant was upset with T.S. for confiding in defendant's sister-in-law about defendant's possible contacts with prostitutes. Defendant complained that T.S. could not "keep [her] fucking mouth shut" and punched T.S. multiple times with a closed fist causing bruising on her legs and a severe black eye. T.S. fled to her room to compose herself so that their daughter would not see her upset. Later, T.S. went outside to watch her daughter in the pool, and her daughter commented on T.S.'s eye. T.S. went to check on her eye, and when she returned, defendant was on the phone with authorities complaining that T.S. was hurting herself.
Defendant was held to answer on the felony count of corporal injury on a spouse, and the court refused defendant's request to reduce the charge to a misdemeanor. The court further refused the People's request to consolidate the matter with the other pending case because the consolidation motion was not before him.
Thereafter, the People filed an information collectively charging defendant with felony corporal injury on a spouse (§ 273.5, subd. (a)-count 1), dissuading a witness from prosecuting a crime (§ 136.1, subd. (b)(2)-count 2), and misdemeanor corporal injury on a spouse (§ 273.5, subd. (a)-count 3).
Defendant moved to dismiss the information for insufficient evidence, arguing that the preliminary hearing evidence was "insufficient to justify a holding order for a violation of Penal Code section 136.1(B)(1)." The People's opposition explained the procedural history of the case and argued the evidence from the preliminary hearing supported all three counts, including the previously uncharged violation of section 136.1, subdivision (b)(1). The court denied the motion.
On the day trial was to start, the parties announced that a settlement had been reached. Defendant's attorney relayed that the agreement was that count 1 would be amended to allege a violation of section 632, a misdemeanor, defendant would plead no contest to count 1, he would receive three years of informal probation, and "[t]he CPO [criminal protective order] will be modifiable by family court, if appropriate." He stated, "[Defendant] is entering this plea in the interest of maintaining his employment so that he can support his daughter. And he is maintaining his innocence as to . . . all DV-related charges." The parties stipulated there was a factual basis for the plea. The court confirmed defendant's plea was knowing, intelligent, and voluntary and then accepted that plea of no contest to a violation of section 632, which prohibits eavesdropping upon or recording of a confidential communication. The court granted the People's request to dismiss the remaining counts in the interest of justice.
At the same hearing, the court then sentenced defendant to three years' informal probation, with an order that he obey all laws. The court also imposed a $150 restitution fine (§ 1202.4), a corresponding suspended $150 probation revocation fine (§ 1202.44), a $30 conviction assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8), and a $438 booking fee. Defendant was credited $250 towards his fine for two days in custody, and declined the court's invitation to set up payments for these amounts, instead agreeing to pay them within 90 days. At the close of the hearing in open court, the sentencing judge executed the modified protective order provided by the district attorney, which identified section 136.2, subdivision (i)(1) as the legal basis for the order. No one objected to this modified order. Defendant timely appealed, but did not receive a certificate of probable cause.
The court also erroneously imposed an O.R. fee, which was later deleted.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Following the advisement regarding the filing of a Wende brief, defendant filed a multifaceted attack on the trial court's issuance of the amended domestic violence protective order at sentencing following his guilty plea.
He argues: (1) "The court exceeded the terms of the plea agreement when it imposed a CR-160 because a CR-160 was not part of the plea agreement";
(2) "The court lacked the legal authority to issue the type of criminal protective order that it issued";
(3) "If the court had broad authority to issue a criminal protective order under PC 136.2, subdivision (a), then its authority was for a Criminal Protective Order - Other Than Domestic Violence (CR-161), citing PC 136.2, subdivision (a), after a full hearing on the matter and a finding that harm to the protected person had occurred or was likely to occur.";
(4) "The CR-160 unfairly stigmatizes the defendant as a domestic violence perpetrator";
(5) "If the court finds that a CR-160 was an element of the plea deal, then it should find that the CR-160 violates the plea agreement because it is not 'modifiable by the family court' as defense counsel indicated on the record";
(6) "The CR-160 is not reasonably related to the crime of which this defendant was convicted";
(7) "The CR-160 deprives [defendant] of the constitutional right to bear arms when there is no nexus between this right and illegal recording";
(8) "The court did not inform [defendant] of the information that it used to establish the conditions of probation and permit [defendant] to answer or controvert the information";
(9) "The CR-160 is an invalid condition of probation";
(10) "The CR-160 contains provisions that are unconstitutionally overbroad";
(11) "The CR-160 is unconstitutionally vague as a condition of probation";
(12) "The CR-160 in this case is inappropriate because the crime for which [defendant] was convicted - illegal recording (pc 632) - is not 'abuse' " (original italics); and
(13) The CPO is also inappropriate for a host of reasons related to the merits of whether it should have been imposed by the superior court.
"A defendant may not appeal 'from a judgment of conviction upon a plea of guilty or nolo contendere,' unless he has obtained a certificate of probable cause. [Citations.] Exempt from this certificate requirement are postplea claims, including sentencing issues, that do not challenge the validity of the plea. [Citations.]" (People v. Cuevas (2008) 44 Cal.4th 374, 379; § 1237.5.) " '[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself' and thus requires a certificate of probable cause. (People v. Panizzon (1996) 13 Cal.4th 68, 79.)" (People v. Shelton (2006) 37 Cal.4th 759, 766 (Shelton).) However, defendant may challenge whether the sentence imposed violates the plea deal itself without running afoul of the certificate of probable cause requirement. (People v. Johnson (2009) 47 Cal.4th 668, 679, fn. 5.)
We must first determine whether the protective order was part of the plea agreement because if it was, a certificate of probable cause is required to challenge it. "A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] 'The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.) On the other hand, "[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it." (Id. § 1649; [citations].)' [Citation.] 'The mutual intention to which the courts give effect is determined by objective manifestations of the parties' intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. (Civ. Code, §§ 1635-1656; Code Civ. Proc., §§ 1859-1861, 1864; [citations].)' [Citations.]" (Shelton, supra, 37 Cal.4th at p. 767.)
Here, we find that the parties understood as part of the plea agreement that the section 136.2 protective order would continue. Defendant's attorney's summary of the plea deal included that the "CPO will be modifiable by family court, if appropriate." A CPO is a criminal protective order, and defendant already was subject to one issued on August 14, 2017, under section 136.2. The deputy district attorney affirmed counsel's description of the deal and stated that she would prepare a "modification of the CPO to reflect that." At the close of the hearing, the district attorney announced that the modified protective order was prepared, and the court signed it in the presence of all parties. It was personally served on defendant at that hearing, and defendant did not object. As such, it is clear that the modified protective order under section 136.2 was fully contemplated by and part of defendant's plea agreement. Accordingly, defendant's failure to obtain a certificate of probable cause precludes his appellate challenge to the protective order. (§ 1237.5; Shelton, supra, 37 Cal.4th at p. 766; People v. Panizzon, supra, 13 Cal.4th at p. 74.)
Defendant nonetheless argues that the protective order violates his plea deal because it is not "modifiable" by the family court. We have located no authority that would authorize the family court to modify a criminal protective order. (Cf. § 136.2, subd. (c) [recognizing the criminal protective order takes precedence over other protective orders with the exception of emergency protective orders under specified circumstances]; Judicial Council of Cal., Advisory Com. Deskbook (2004) Unified Courts for Families Deskbook, § 9.2, p. 9-5 [same and highlighting the importance of family court judge access to the terms of the criminal protective order in the automated case management system].) However, this does not lead to the conclusion that the amended protective order violates the plea agreement.
Nonetheless, section 136.2, subdivision (f) contemplates coordination with other courts and expressly recognizes that criminal, family and juvenile courts are to adopt a protocol for "coordination of all orders against the same defendant and in favor of the same victim." It also recognizes that this protocol "shall permit a family or juvenile court order to coexist with a criminal court protective order subject to the following conditions: [¶] (1) An order that permits contact between the restrained person and his or her children shall provide for the safe exchange of the children and shall not contain language either printed or handwritten that violates a 'no-contact order' issued by a criminal court. [¶] (2) The safety of all parties shall be the courts' paramount concern. The family or juvenile court shall specify the time, day, place, and manner of transfer of the child, as provided in Section 3100 of the Family Code."
Originally, defendant was subject to a protective order that precluded all contact with T.S., despite the need to transfer custody of their shared daughter for visitation. Defendant twice sought modification of the order to address difficulties arising from this prohibition, but was unsuccessful. Thereafter, as part of the plea deal, the amended protective order authorized contact with T.S. for purposes of the exchange of their daughter for court-ordered visitation as ordered in the couple's family law case. Thus, to the extent that the family court later modified its custody order, this would have the effect of modifying the contact authorized in the criminal protective order. We believe this is a fair view of the parties' intent vis-à-vis the protective order at the plea hearing. To the extent defendant now seeks to set aside his plea because of a perceived promise that the family court would have wholesale authority to modify the protective order, he cannot raise this argument without obtaining a certificate of probable cause. (See People v. Pannizon, supra, 13 Cal.4th at p. 76 [noting longstanding rule that a certificate of probable cause is required to argue that a plea was induced by a fundamental misrepresentation].)
Defendant's argument that the original and amended protective orders were the same because both checked box 16, ignores the facts leading up to the amendment. Further, while box 16 was checked on the first order, the sub-box authorizing such exchanges in the identified family law case was not. Thus, the amended order authorized contact for purposes of exchanges, while the original order did not.
DISPOSITION
The judgment is affirmed.
KRAUSE, J. We concur: BLEASE, Acting P. J. ROBIE, J.