Opinion
G052638
03-06-2017
THE PEOPLE, Plaintiff and Respondent, v. VERNON CRAIG THOMPSON, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Andrew S. Mestman and Arlene A. Sevidal, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12WF1042) OPINION Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. Affirmed and remanded. Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Andrew S. Mestman and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Vernon Craig Thompson appeals from a conviction of felony assault (Pen. Code, § 245, subd. (a)) and simple battery (§ 242). Following guilty verdicts by the jury, the trial court imposed a suspended sentence and placed defendant on three years of formal felony supervised probation. Defendant challenges the sufficiency of the evidence to support the felony assault charge, as well as a term of his probation that requires him to maintain a residence as approved by his probation officer. Although we find no merit to his first challenge — substantial evidence supports defendant's conviction — we agree, based on precedent, that the probation condition at issue is unconstitutionally overbroad because it gives his probation officer unbridled authority to restrict where defendant may live and with whom he may associate.
All statutory references are to the Penal Code unless otherwise indicated.
I
FACTS
Around 7:00 p.m. on the night before St. Patrick's Day in 2012, Jessie Dale and Chad Weaver walked from Dale's house in Los Alamitos to a nearby bar called the Sportsman. Dale, who grew up in Long Beach, was wearing a hat with the letters "LB" on it. Sometime between approximately 11:30 p.m. and midnight, while drinking beer and playing billiards with Weaver, Dale was approached by three males whom neither he nor Weaver had seen before. One of the three males was defendant, another had a buzz haircut and the third wore a t-shirt emblazoned with the words "Long Beach."
Dale testified that the male wearing the Long Beach t-shirt approached him aggressively, asking him "Where are you from?" Weaver testified that the same male and the male with the buzz haircut "were getting in [Dale's] face[,]" asking Dale where he was from, why he was wearing the Long Beach hat and what gang he was in. Dale responded that he was from Long Beach and not in a gang, and questioned why he could not wear the hat. Although defendant stood with the two aggressive males, defendant did not engage in the same aggressive behavior. Rather, he tried calming them down and pulling them away while saying, "This is not the place for this." Dale and Weaver notified the bar's security guard of the happenings, and defendant and the two aggressive males were asked to leave the bar, which they did.
After leaving the bar sometime between 1:30 and 2:00 a.m., and having consumed between seven and 10 beers each, Dale and Weaver lined up to order tacos from a taco cart that often set up in the parking lot of the bar around closing time. While in line, Dale and Weaver were confronted by the same Long Beach t-shirt wearing male that had approached them inside the bar. He proceeded to ask Dale questions similar to those he previously asked, making Weaver feel nervous and giving Dale the impression that the male was challenging him. Defendant and the male with the buzz haircut remained a short distance away next to the group's vehicle — a sports utility vehicle (SUV). Defendant once again tried to calm his friends down and encourage them to leave. Not long after the encounter began, the bar's security guard once again told the three men they needed to leave. Defendant grabbed his Long Beach t-shirt-wearing friend, and the three got into their SUV and sped off around the corner.
Deanna Lidyoff testified that she had gone to bed on the night in question, but then woke up hungry between 1:00 and 2:00 a.m., so she decided to walk to get something to eat at the taco cart that she knew set up outside the Sportsman to get something to eat. While waiting in line for tacos, she heard and saw a group of at least three males being very loud and standing next to an SUV in the bar's parking lot "with a lot of rowdy cuss words . . . being exchanged." Beyond hearing obscenities, Lidyoff was unable to hear exactly what was being said. Shortly thereafter, she saw the three males get into the SUV, and the SUV left the parking lot, turned the corner at the next block, and parked along the curb.
Knowing she had to walk home down the street on which the SUV parked, Lidyoff felt scared. Dale and Weaver, with whom she had struck up a conversation while waiting for food, offered to walk her home, and she accepted. As they started down the opposite side of the street from where the SUV was parked, Lidyoff continued to hear yelling and arguing coming from its three male occupants. She and Weaver increased their pace to get past it, while Dale fell a bit behind. Lidyoff did not turn around, but she heard Dale say, "Leave us alone, we are just going home." She continued to walk briskly, then heard some scuffling. Lidyoff turned around to see the three males outside the SUV and running across the street toward Dale. At almost that same moment, she noticed Weaver had left her side and was headed back to Dale. Lidyoff proceeded to see Dale down on the ground getting punched and kicked. At first she saw just one person standing over Dale, but thereafter she saw the three males from the SUV standing over him. Although she recalled observing "at least two doing some kicking[,]" it was difficult for her to identify which individuals were kicking and punching Dale. She testified that neither Dale nor Weaver provoked or started the fight.
At trial, Lidyoff identified the male wearing the Long Beach t-shirt and the male with the buzz haircut as being two of the three individuals she saw standing over Dale. She also testified that defendant did not look familiar.
Fearful of being attacked, Lidyoff started back down the street toward her house. Before getting far, but far enough away that she no longer could see the fight, Lidyoff called 911; the police arrived at the scene within minutes. Once the 911 operator told Lidyoff the police had arrived, she returned to where the fight broke out and saw Dale lying on the ground and "very bloody." She spoke with a police officer, but she was not asked to identify anyone involved in the brawl.
Dale testified that after the three males left the bar's parking lot, they sped off around the corner in an SUV. He and Weaver started talking to a woman who was also waiting for tacos. She mentioned that she was afraid of walking home because of the behavior of the three males that she observed, so Dale and Weaver offered to walk her home. As they began walking down the street where the SUV had parked, Dale saw the male wearing the Long Beach t-shirt begin to approach him, so he told Weaver to continue walking with the woman to "get her out of [there]." Dale told the man in the Long Beach t-shirt that they were just walking home and to leave them alone. Dale then saw the male with the buzz haircut and defendant rushing at him from the SUV. As the three men rushed at him, Dale recalled the one wearing the Long Beach t-shirt was agitated and yelling things similar to the statements he had made in the bar and the parking lot earlier that night. Next thing Dale knew, the man wearing the Long Beach t-shirt punched him in the side of the face without any provocation. As Dale was falling to one side, he felt another punch from the opposite side, which caused him to fall to the ground.
Once on the ground and in the fetal position, Dale felt a kick to his face and his vision went black. Thereafter, as his vision went in and out, he felt more kicks and punches, as well as a stomp on his face. Although he was unable to connect a particular individual to each contact, he testified that he could tell the blows were being delivered by all three men that had run at him, including defendant, because he felt kicks simultaneously hit three different parts of his body — his face, his upper back and the top of his head. Dale eventually lost consciousness and his next memory was waking up in the hospital, from which he was released later that same day. He received a total of about seven stiches in his mouth and on his cheek, he had a footprint on the side of his face, his face was so swollen he could not talk and he had to feed himself through a straw for two weeks. He returned to work approximately two and a half to three weeks later.
The final witness to testify was Weaver. He recounted details nearly identical to Dale's testimony concerning the confrontation with the three men in front of the taco cart and the bar security guard asking the three men to leave. He said Lidyoff asked Dale and him to walk her home because she was afraid of the three men. Weaver further testified that as he and Dale began walking Lidyoff down the street where the SUV had parked along the curb, he saw the driver get out of the vehicle and Dale told him to continue walking and get Lidyoff home safely. Weaver continued walking, hearing statements similar to those that were exchanged earlier inside and outside the bar. Then, unprovoked by Dale as far as Weaver could tell, Weaver observed the three males jump on top of Dale. Dale fell to the ground almost instantly. While turning back to aid his friend, Weaver saw punches being thrown and all three males, including defendant, kicking Dale on his face, head and body.
At the time of trial, Weaver could not recall the specific number of kicks and punches delivered by defendant, or precisely where they hit Dale.
When Weaver reached the fight, he pushed away the first person he could reach to prevent Dale from being further injured. Defendant, who was the one Weaver pushed, turned and began punching Weaver, hitting him in the head and ribs. Weaver testified that he swung back at defendant to defend himself, and the police arrived very shortly thereafter.
The jury found defendant guilty on both counts — as to Dale, felony assault with force likely to produce great bodily injury, and as to Weaver, simple battery. They found it "not true" that defendant had personally inflicted great bodily injury on Dale.
Defendant was given a suspended sentence and placed on three years of formal felony supervised probation. One condition of his probation is that he maintain a residence subject to the approval of his probation officer.
II
DISCUSSION
A. Sufficiency of the Evidence
Defendant asserts there was insufficient evidence to support the jury's guilty verdict on the felony assault count on Dale "because the victims and witnesses were unable to identify [defendant] as the perpetrator." The Attorney General contends that such an assertion is belied by the record and that substantial evidence supports defendant's conviction. We agree.
"'In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding."'" (People v. Nelson (2011) 51 Cal.4th 198, 210 (Nelson).)
"In deciding the sufficiency of the evidence, [we] resolve[] neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).)
Here, Dale and Weaver testified defendant was inside the bar, outside the bar, in the SUV parked on the street where the physical altercation took place, and was part of the group of three males that rushed towards Dale.
Weaver testified about his personal observations on the night of the altercation. As he and Dale walked Lidyoff home, not only did Weaver see defendant get out of the SUV that was parked on the opposite side of the street, but Weaver also saw him and the other two males he was with "jump on top of [Dale] and beat him up." Weaver elaborated in further detail that, as he went back to assist Dale, he saw Dale lying on the ground. "[A]ll three" males who had gotten out of the SUV, including [defendant], were "kicking and punching and kicking and punching" Dale in his face, head and body. Weaver's testimony alone supports a guilty verdict. (Young, supra, 34 Cal.4th at p. 1181 [testimony of single witness sufficient to convict so long as events testified to are not physically impossible and testimony is not false on its face]; People v. Aguilar (1997) 16 Cal.4th 1023, 1028 (Aguilar) ["That the use of hands or fists alone may support a conviction of assault 'by means of force likely to produce great bodily injury' is well established"]; People v. Leonard (2014) 228 Cal.App.4th 465, 486 [same].)
Defendant argues that "Weaver's testimony that all three men were hitting and kicking Dale was thoroughly impeached[,]" implying that it should be discredited. Though such an argument may have been proper for the jury, it is futile in this appeal. Impeachment goes to a witness' credibility, and "'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.'" (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Thus, it is outside our charge to resolve credibility issues. (Ibid.; Young, supra, 34 Cal.4th at p. 1181.)
Lidyoff testified that she saw the three males outside the SUV and running across the street toward Dale, that all three were standing over Dale as he lay on the ground, that "at least two" were punching and kicking Dale while he was on the ground, and that Dale did not do anything to start or provoke the fight. Though defendant did not look familiar to Lidyoff at the time of trial, Dale's testimony helped complete the picture. He testified that all three males, including defendant, rushed at him, with the man wearing the Long Beach t-shirt in the lead and delivering the first punch without provocation. Dale further testified that he felt simultaneous kicks hit three separate parts of his body.
"'The right to draw proper inferences from the evidence is a function of the jury; and as long as its conclusions do not do violence to reason, an appellate court is not permitted to substitute its finding of the ultimate fact for that reached by the constitutional as well as the statutory arbiter thereof. Circumstantial evidence may be as convincing in its force and as conclusive as the testimony of witnesses to an overt act.'" (People v. Stark (1936) 16 Cal.App.2d 467, 469.) "Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt." (People v. Pierce (1979) 24 Cal.3d 199, 210.)
We find the evidence in the record before us "'"reasonable, credible and of solid value—such that a reasonable trier of fact could find . . . defendant guilty beyond a reasonable doubt."'" (Nelson, supra, 51 Cal.4th at p. 210; see People v. Jackson (1960) 183 Cal.App.2d 562, 567 ["[A]ny factual finding on the issue of identification this court may not disturb unless it can be said that the evidence thereon is so weak as to constitute no evidence at all"].) Accordingly, we reject defendant's insufficiency of the evidence claim. (People v. Millwee (1998) 18 Cal.4th 96, 131-132.) B. Probation Condition Concerning Residence
Defendant's second challenge is to the probation condition which requires that he "maintain [a] residence as approved by [his] probation or mandatory supervision officer." He contends it is "unconstitutionally overbroad because it infringes on [his] federal constitutional rights to travel and freedom of association." We agree.
Despite defendant's failure to raise the objection below, we apply a de novo standard of review to such a challenge because unconstitutional overbreadth presents a question of law that is not waived by a failure to object below. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.) In contrast, defendant has waived the right to challenge the "reasonableness" of the residence approval requirement due to his failure to object at sentencing. (Id. at pp. 881-882.)
"'Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. [Citation.] The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.] The primary goal of probation is to ensure "[t]he safety of the public . . . through the enforcement of court-ordered conditions of probation."'" (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).)
Although the trial court has relatively broad discretion in imposing conditions of probation, there nevertheless exist constitutional boundaries within which it must operate. Specifically, if a probation condition impinges on the exercise of a constitutional right, it "must be carefully tailored, '"reasonably related to the compelling state interest[s] in reformation and rehabilitation. . . ."'" (People v. Bauer (1989) 211 Cal.App.3d 937, 942 (Bauer).) If the condition is not so tailored, it may be unduly restrictive and, thus, deemed unconstitutionally overbroad. (Id. at pp. 944-945; In re E.O. (2010) 188 Cal.App.4th 1149, 1153; People v. Harrisson (2005) 134 Cal.App.4th 637, 641.)
Bauer, supra, 211 Cal.App.3d 937, is a case in which the defendant, after being convicted of assault and false imprisonment, challenged a condition of probation indistinguishable from the one challenged by defendant. The Bauer court determined that requiring the defendant to "obtain his probation officer's approval of his residence" (ibid.) was an "extremely broad" restriction instead of being one that was "narrowly tailored to interfere as little as possible" with the constitutional right of travel and to freedom of association (id. at p. 944). The condition gave the probation officer free reign to prohibit the defendant from living with or near whomever the probation officer chose — "that is, the power to banish him." (Ibid.) The appellate court struck the challenged probation condition. (Id. at pp. 944-945.)
We find Bauer's reasoning to be sound and believe it applicable to, and dispositive in, this case. The residence approval requirement imposed on defendant gives unbridled authority to his probation officer to restrict where he may live and, consequently, with whom he may associate. As in Bauer, it allows the possibility that defendant could be effectively banished. (Bauer, supra, 211 Cal.App.3d at p. 944.) We, of course, hope that his probation officer would strive to act reasonably when deciding whether to approve a particular location. However, such an optimistic outlook cannot save the facially overbroad language of the condition. (Id. at pp. 944-945; People v. O'Neil (2008) 165 Cal.App.4th 1351, 1358-1359 ["[A] court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court's order cannot be entirely open-ended"].)
The Attorney General argues that the condition is justified because it allows the probation officer to know where defendant is living at all times so that searches may be performed, to ensure defendant is kept away "from persons who might be 'a source of temptation to continue to pursue a criminal lifestyle[,]'" and to ensure he "is not living in close proximity to the victim." But, none of these reasons are sufficient to warrant such a far-reaching infringement on defendant's constitutional rights. First, in order to perform a residential search, a probation officer need merely to be informed of defendant's place of residence; the officer need not have approval authority over it. (See Olguin, supra, 45 Cal.4th at p. 380 [upholding condition that probationer "'[k]eep the probation officer informed of place of residence, cohabitants and pets, and give written notice to the probation officer twenty-four (24) hours prior to any changes'"].) Second, minimizing sources of temptation for future criminality can be served by a condition limiting contact with persons whom defendant knows to have certain types of criminal history (e.g., parolees, felons). (See People v. Robinson (1988) 199 Cal.App.3d 816, 818 [upholding probation condition requiring "that defendant avoid the company of those persons known to have a criminal record"].) Third, prohibiting contact with the victims can be achieved by a condition that expressly prohibits such contact. (See People v. Petty (2013) 213 Cal.App.4th 1410, 1424 [requiring probationer to stay away from victim is within authority granted by Penal Code section 1203.1, subd. (j)].) Notably, the latter two of these alternative, narrowly tailored conditions are, in fact, probation conditions that the trial court imposed on defendant — conditions to which defendant assented and he does not challenge.
The probation condition requiring that defendant obtain prior approval of his residence from his probation or mandatory supervision officer must be stricken. (In re Sheena K., supra, 40 Cal.4th at p. 890 ["A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad"].) Although the trial court did not impose it, a condition requiring, for example, that defendant notify the probation officer of any change in residence 24 hours prior to any such change would be viable (see Olguin, supra, 45 Cal.4th at pp. 386-387), and the trial court may choose to add such a condition if it deems it appropriate.
III
DISPOSITION
The condition of probation requiring defendant to maintain a residence as approved by his probation or mandatory supervision officer is stricken (§ 1260). The matter is remanded to the trial court to modify the residency probation. In all other respects, the judgment is affirmed.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.