Opinion
B295280
02-11-2020
THE PEOPLE, Plaintiff and Respondent, v. MARK EDGAR BETMALECK, Defendant and Appellant.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Wyatt E. Bloomfield, Corey J. Robins, and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA145089) APPEAL from a judgment of the Superior Court of Los Angeles County. Hector E. Gutierrez, Judge. Affirmed. Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Wyatt E. Bloomfield, Corey J. Robins, and Nikhil Cooper, Deputy Attorneys General, for Plaintiff and Respondent.
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In an information filed by the Los Angeles County District Attorney's Office, defendant and appellant Mark Edgar Betmaleck was charged with one count of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). It was further alleged that defendant personally inflicted great bodily injury upon Jacqueline H. (Jacqueline) within the meaning of section 12022.7, subdivision (a). Defendant pleaded not guilty and denied the special allegation.
All further statutory references are to the Penal Code unless otherwise indicated.
Trial was by jury. The jury found defendant guilty as charged.
Imposition of sentence was suspended. On November 28, 2018, defendant was placed on formal probation for a period of five years. Conditions of his probation included a victim stay away order and the imposition of various fines and fees, including a $40 court operations assessment, a $30 criminal conviction assessment, and a restitution fine in the amount of $300.
Defendant timely filed a notice of appeal. On appeal, defendant contends: (1) the stay away condition to defendant's probation is unconstitutional because it does not contain an express knowledge requirement, and (2) the trial court erred in imposing certain fees and fines without first determining that he was able to pay those fines, pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157, 1163-1173 (Dueñas).
We affirm.
FACTUAL BACKGROUND
Given the issues raised on appeal, this brief description of the crime is taken from the probation report.
On January 1, 2018, Jacqueline was playing music in her apartment when she heard defendant banging on her front door. When she opened the door, defendant complained that her music was too loud. An argument ensued. Defendant punched Jacqueline in the face with his fist. She fell backwards and struck her head on an air conditioning unit, suffering injury. When Los Angeles sheriff's deputies spoke with defendant, he acknowledged having issues with the volume of Jacqueline's music and that he went to her apartment and complained. However, defendant told deputies that Jacqueline exited her apartment, yelled derogatory names at him, pushed him, and then hit him in the face with her fist. In response, defendant said that he pushed her with his right fist, causing her to fall and strike her head on the air conditioning unit, and then left.
DISCUSSION
I. Stay Away Order
Defendant argues that the trial court's order that he stay away from Jacqueline is overly broad; he asks that we modify the order to include an express knowledge requirement.
A. Relevant Facts
At sentencing, the trial court suspended imposition of sentence and placed defendant on formal probation for five years. The People were concerned about the fact that defendant apparently still resided at the same location where the incident occurred, but Jacqueline had moved away. Defense counsel replied: "[W]ith respect to that issue, if that is a term that the court would impose if probation is granted for my client, I just spoke with him, and that would be a term, to stay away from the 'Twin Towers.' If that's a term, then he would follow that order."
The appellate record and the parties' briefs are confusing on this point. It seems that the incident occurred at the "Twin Towers," where both defendant's girlfriend and Jacqueline lived at the time of the incident. Defendant testified at trial that he stayed at that apartment "a lot." In fact, the evidence also showed that he deemed that apartment "home." It also appears that defendant still lives there, but Jacqueline moved to a new location. It does not make sense that defendant agreed to stay away from the Twin Towers if he still lives there.
The trial court then asked whether the People would seek a "criminal protective order" or a "stay-away order per the terms of probation." The People requested that the trial court impose a criminal protective order on behalf of Jacqueline. The trial court imposed the following order: "Good cause appearing, the court orders that [defendant] must not harass, strike, threaten, assault (sexually or otherwise), follow, stalk, molest, destroy or damage personal or real property, disturb the peace, keep under surveillance, or block movements of the protected person named as" Jacqueline.
In his opening brief and his reply brief, defendant asserts that the trial court imposed the following condition on his probation: "[T]hat he 'not harass, bother, molest, annoy, or communicate with the victim . . . , and stay away from said person(s), their residence, or place of employment.'" That is not the language in the trial court's order.
The trial court also ordered the following as conditions of probation:
"You must take no action to obtain the addresses or locations of protected persons or their family members, caretakers, or guardian unless good cause exists otherwise.
"You must have no personal electronic, telephonic, or written contact with the protected person named.
"You must have no contact with the protected person named through a third party, except counsel of record.
"You must not come within 100 yards of the protected person named."
Defendant acknowledged that he understood and accepted the terms and conditions of his probation.
B. Forfeiture
Defendant has forfeited any objection on appeal. Defendant did not object to the terms of the criminal protective order or to any of the conditions of probation. Not only did defendant fail to object, he actually agreed to a stay away order. Given defendant's concession to adhere to this condition of probation, we conclude that defendant forfeited any objection to this condition of his probation. (People v. Welch (1993) 5 Cal.4th 228, 235-236; In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.).)
C. Stay Away Order is Constitutional
For the sake of completeness, we address the merits of defendant's challenge to the stay away order.
Trial courts have broad discretion to prescribe probation conditions to foster rehabilitation and protect public safety. (People v. Rhinehart (2018) 20 Cal.App.5th 1123, 1126 (Rhinehart).) Such conditions, however, must not be unconstitutionally vague or overly broad. (Id. at pp. 1126-1127.) A probation condition must be "sufficiently definite" for a probationer to know what conduct is required or prohibited and to allow the court to determine whether the condition has been violated. (People v. Hall (2017) 2 Cal.5th 494, 500 (Hall).) Thus, a court may not revoke a defendant's probation absent a finding that he willfully and knowingly violated the terms and conditions of his probation. (Id. at pp. 498-499; People v. Patel (2011) 196 Cal.App.4th 956, 960-961.) We review defendant's challenge to the constitutionality of the stay away order de novo. (Sheena K., supra, 40 Cal.4th at pp. 888-889.)
In the past, California courts insisted that probation requirements contain express knowledge provisions. (See, e.g., In re Ana C. (2016) 2 Cal.App.5th 333, 347-350; In re Kevin F. (2015) 239 Cal.App.4th 351, 361-366, both cases disapproved on this point in Hall, supra, 2 Cal.5th at p. 503, fn. 2.) However, in Hall, the California Supreme Court disapproved of cases holding that an express knowledge requirement was necessary to prevent unwitting violations of possessory probation conditions. (Hall, supra, at p. 503, fn. 2.) Hall also disapproved of cases holding that possessory probation conditions must include an express knowledge requirement where the prohibited item was not criminalized by statute, but was merely related to criminality. (Ibid.) "California case law already articulates not only a general presumption that a violation of a probation condition must be willful, but also specifically provides that probation conditions barring possession of contraband should be construed to require knowledge of its presence and its restricted nature." (Id. at p. 501.) Thus, the Hall court "decline[d the] defendant's invitation to modify those conditions simply to make explicit what the law already ma[de] implicit." (Id. at p. 503.) The Supreme Court added that while trial courts are free to explicitly "specify the requisite mens rea" when imposing such a probation condition, inclusion of the express knowledge requirement was not constitutionally compelled. (Id. at pp. 503-504.)
The same rationale applies here. An express knowledge requirement is not necessary for the stay away order to pass constitutional muster. Defendant has not made any specific argument pointing out how the stay away order is vague or overly broad without an express scienter requirement. The protected person is named and defendant knows to stay at least 100 yards away from her. (People v. Rodriguez (2013) 222 Cal.App.4th 578, 594, disapproved in part in Hall, supra, 2 Cal.5th at p. 503, fn. 2.)
In urging us to reverse, defendant asserts that "[t]he stay-away condition here is not subject to the implicit knowledge limitation set forth in Hall" because Hall involved the possession of contraband while in this case defendant was ordered to stay away from Jacqueline. We disagree.
In Rhinehart, the defendant claimed that the condition that he "[s]tay out of places where alcohol is the primary item of sale, such as bars or liquor stores" was infirm because it did not contain an express knowledge requirement. (Rhinehart, supra, 20 Cal.App.5th at p. 1126.) Applying Hall, the Court of Appeal disagreed, stating: "While Hall involved conditions barring a probationer from possessing certain contraband, its reasoning applies with equal force to conditions prohibiting a probationer from entering certain spaces, like the one at issue here. The condition forbidding [the defendant] from entering a business [that] primarily sells alcohol does not include reference to any mental state, but neither is it unconstitutionally vague. As Hall establishes, there is already a general presumption that a probation condition violation must be willful. Thus, a violation of this condition can occur only if [the defendant] enters a business [that] he knows sells alcohol primarily. He is not in violation if his entrance to such an establishment was unwitting. Because willfulness is presumed and nothing would change if we were to add 'knowingly' to the condition, we decline [the defendant's] modification request.
"[The defendant] argues [that] Hall does not govern here because that case involved conditions prohibiting possession of certain items, whereas his condition prohibits entry into certain types of locations. This is a distinction without a difference. Just as a probation condition can presume a probationer's knowledge that he possesses a restricted object (e.g., a firearm or a drug), it can also presume his knowledge that he entered a restricted space (e.g., a liquor store or bar). No scienter modification is necessary." (Rhinehart, supra, 20 Cal.App.5th at p. 1128.)
For the same reasons, we need not modify the stay away order issued in this case. Any purported violation of that order must be "willful and knowing." (See, e.g., § 166, subd. (c)(1).) In other words, the knowledge requirement is implicit.
This case differs from Sheena K., where the absence of an express knowledge requirement mandated modification when the probation condition imposed upon the defendant prohibited her from associating "with anyone 'disapproved of by probation.'" (Sheena K., supra, 40 Cal.4th at p. 890.) As explained by our Supreme Court in Hall: "[T]he category of prohibited persons [in Sheena K.] was vague, in that the condition failed to specify which persons the probation officer had disapproved of." (Hall, supra, 2 Cal.5th at p. 503.) Here, the probation condition prohibiting defendant from contact with Jacqueline is not so attenuated. Defendant knows Jacqueline's identity; he knows who to stay away from. It follows that Sheena K. does not compel reversal.
Because the stay away order issued is not ambiguous, defendant's claim fails on appeal. (See, e.g., People v. Hartley (2016) 248 Cal.App.4th 620, 632-635 [no express knowledge requirement needed where condition of probation required the defendant to stay at least 100 yards away from the named person and to have no contact with that person].)
II. Fines and Fees
Defendant argues that the trial court erred in imposing various fines, fees, and assessments without first determining whether he had the ability to pay those fines, fees, and assessments. In support, he relies upon Dueñas, supra, 30 Cal.App.5th 1157.
We find no error. (People v. Hicks (2019) 40 Cal.App.5th 320, 322, 324-329.) Even before Dueñas, a trial court could "consider[]" a defendant's "[i]nability to pay" whenever it "increase[ed] the amount of the restitution fine" in excess of the minimum of $300 applicable here. (§ 1202.4, subds. (b)(1), (c).) As appellant concedes, he did not object or otherwise present any evidence regarding his ability to pay to the trial court at sentencing. As a result, the issue has been forfeited on appeal. (See, e.g., People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [by failing to object to fees or fines in the trial court, the defendant forfeited his objection on appeal]; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155.)
Moreover, there is no indication that any objection would have been futile. "Although [the] statutory provisions mandate the assessments be imposed, nothing in the record of the sentencing hearing indicates that [defendant] was foreclosed from making the same request that the defendant in Dueñas made in the face of those same mandatory assessments. [Defendant] plainly could have made a record had his ability to pay actually been an issue. Indeed, [defendant] was obligated to create a record showing his inability to pay the maximum restitution fine, which would have served to also address his ability to pay the assessments." (People v. Frandsen, supra, 33 Cal.App.5th at p. 1154.)
"More fundamentally, we disagree with [defendant's] description of Dueñas as 'a dramatic and unforeseen change in the law . . . .' [Citation.]" (People v. Frandsen, supra, 33 Cal.App.5th at p. 1154.) "Dueñas was foreseeable." (People v. Frandsen, supra, at p. 1154.)
Setting aside this procedural obstacle, defendant's argument fails on the merits. "Dueñas is inconsistent with the purposes and operation of probation." (People v. Hicks, supra, 40 Cal.App.5th at p. 327.) After all, the chief purpose of probation is to rehabilitate and reintegrate a defendant into the community, and "[o]ne way to achieve this purpose is to require the defendant[] to make an effort to repay his debt to society." (Ibid.) "Dueñas is also inconsistent with the operation of probation, which typically lasts a number of years [citation] and thus gives probationers a significant period of time to repay their financial obligations." (People v. Hicks, supra, at p. 328.) Against this backdrop, and given that defendant is an "able-bodied, [55]-year-old probationer," there appears to be no reason why he cannot make an effort to repay his debts. (Ibid.) "Defendant still has [over four years] of probation left to make bona fide efforts to repay these obligations. Should they remain unpaid at the end of his probationary period, the trial court will have to decide whether it was due to his indigence or to a lack of bona fide effort. At this point in time, however, due process does not deny defendant the opportunity to try." (Id. at p. 329.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, Acting P. J.
ASHMANN-GERST We concur: /s/_________, J.
CHAVEZ /s/_________, J.
HOFFSTADT