Opinion
D075304
04-22-2020
THE PEOPLE, Plaintiff and Respondent, v. MARIO ANTHONY ENRIQUEZ, Defendant and Appellant.
Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF000778) APPEAL from a judgment of the Superior Court of Imperial County, William D. Quan, Judge. Affirmed. Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
Mario Enriquez pled guilty to inflicting corporal injury on his spouse (Wife). (Pen. Code, § 273.5, subd. (a).) The court granted him three years' probation with various conditions, including a restriction against any contact with Wife. The court also issued a three-year criminal protective order with this same restriction. The court found the no-contact order was necessary as a protective measure, but said it would be willing to modify the order if Enriquez and/or Wife petitioned for a modification based on facts showing contact would be safe and appropriate.
All further statutory references are to the Penal Code.
On appeal, Enriquez challenges the no-contact order. He contends the order violates his constitutional rights to marriage and marital privacy, and requests we remand for the court to impose a less restrictive provision such as one permitting him to respond to contact initiated by Wife. We determine the court acted within its discretion in imposing the strict no-contact order and the order satisfies constitutional requirements. The court had a reasonable basis to find the order was necessary to protect Wife and there were no reasonable alternatives at the time of the sentencing hearing.
In reaching these conclusions, we have rejected the Attorney General's argument that Enriquez waived his right to challenge the no-contact order through the appellate waiver provision in his plea agreement.
The Attorney General also contends we must dismiss the appeal because Enriquez did not obtain a probable cause certificate. However, we granted Enriquez's motion to file an amended notice of appeal showing he did obtain a probable cause certificate. Thus, even assuming a certificate was required, the requirement was satisfied in this case.
FACTUAL AND PROCEDURAL BACKGROUND
Facts Pertaining to Assault Offense
Our factual summary is derived from the probation report. On March 18, 2018, Wife was sitting in the passenger seat of her male friend's car in her apartment complex's parking lot. Enriquez approached the car, shouted profanities, and challenged the male to a fight. Enriquez then punched the front passenger side of the car's windshield. The windshield shattered, causing the glass to cut Wife's face and thigh. Wife's friend drove her to the hospital.
At the hospital, Wife's injuries included a deep laceration on her nose, a large cut on her right cheek, and a smaller cut on her left thigh. The hospital contacted the sheriff's department, and the responding deputy observed that Wife was crying and upset. Wife told the deputy that her husband of 11 years had assaulted her. She said Enriquez's actions resulted from his jealousy and accusing her of adultery. Wife refused to provide her male friend's name and declined to provide a written statement. Wife said she and Enriquez had separated in September 2017 and have two children together (eight and 10 years old), and that she has a four-year-old child from a different relationship. Wife said Enriquez had previously assaulted her three or four times, but she never reported these incidents.
When the deputy drove her home, Wife declined an offer for alternative housing, saying she felt safe in the apartment. When they arrived at the apartment, the door was unlocked and the children were alone, but asleep in their bedrooms. Wife said she did not want Enriquez to be prosecuted for his actions.
Criminal Charges and Guilty Plea
In April 2018, a felony complaint charged Enriquez with one count of felony corporal injury on the mother of his child. On October 23, 2018, Enriquez was arrested for the offense, and shortly after, he pled guilty to the felony count. The guilty plea included a waiver of certain specified appellate rights (discussed in more detail below). The court released Enriquez on his own recognizance conditioned on his agreement to abide by a criminal restraining order preventing him from having any contact with Wife, pending the sentencing hearing.
Probation Report
The probation officer then interviewed Enriquez and Wife, and prepared a report recommending that Enriquez be placed on three years' formal probation subject to numerous terms and conditions, including that he have no contact with Wife.
With respect to mitigation and probation-favorable circumstances, the probation officer said that Enriquez voluntarily acknowledged wrongdoing in the early stages of the criminal process; he has ties to the community; and he has employable skills and is working. With respect to aggravating and probation-negative circumstances, the officer said the crime involved great violence; Enriquez has a criminal history (a 2017 driving under the influence misdemeanor offense); he was on probation (for the DUI conviction) when he committed the current offense; and he "show[ed] no remorse for his actions." The probation officer identified Enriquez's risk level for reoffending as "Moderate." The officer said Enriquez was cooperative during the interview and agreed to be compliant with probation.
With respect to his interview with Wife, the probation officer said that after numerous attempts to contact Wife, she finally telephoned him on November 5. Wife told the officer she "does not want the stay away order." She said she misses Enriquez and the children miss him, and denied that Enriquez is a violent person. Wife said she "read the police report and that it is not correct; she said it sounds too dramatic tha[n] what it really was." She said she would provide a written statement, but failed to do so for the next two weeks, despite the probation officer's numerous calls requesting the statement.
On November 20, 2018, the probation officer received an email that appeared to be from Wife's email account. The email stated:
"I have known [Enriquez] since we were 15 years old. We were married at 20, and we have 2 Beautiful Children together. . . . I am writing you today asking that the no contact order be adjusted if not taken off due to our children needing both parents in the same home.
"Enriquez is a caring and loving Father and our children love him deeply. He is a very hardworking and dedicated provider for our family and has been My Biggest Support and only Family I actually have for the last couple of years. He has always tried to better our future by working hard and is our family's sole provider. [Enriquez] has always been selfless, in everything he does. He has never been physically abusive in any way towards me, our children or any other person.
"Please don't break up our family, we've come so far and we are together and we are happy. We're all we truly have. The No Contact order for 3 years is like taking 50 steps back for our family, we've grown and are trying to continue making positive changes, [Enriquez's] only goal is to make sure that our children are taken care of. Our Children need him in our lives. I'm asking that you Please reconsider."
Sentencing Hearing
At the November 29, 2018 sentencing hearing, defense counsel asked the court to remove or modify the recommended no-contact order. Wife did not appear at the hearing, but defense counsel said he had spoken with Wife and she told him she "wants to associate with" Enriquez, and denied any domestic violence history between them. Counsel noted there had been a "significant cool-down period" since the March 2018 incident, and there were no further incidents. Counsel said Enriquez had abided by the no-contact order after he was released from custody about one month earlier. Counsel argued that Enriquez "is taking this extremely seriously. He's shown the initiative of actually getting enrolled in anger management classes and has proof of enrollment today with him." When the court later looked at the submitted paperwork, the court said it showed Enriquez had enrolled in that course just three days earlier, and there was no indication he had attended any sessions.
Enriquez's counsel also argued the no-contact order violated Wife's and Enriquez's constitutional rights to "familial" and "marital" relations, and urged the court to impose a more limited order allowing Enriquez to engage in communications with Wife if she initiates the contact, citing to People v. Jungers (2005) 127 Cal.App.4th 698 (Jungers).
When the court asked for the prosecutor's response, the prosecutor said the no-contact order should remain:
"The People's position is that it should be a stay-away order at least until the defendant has made some progress. Yes, they are married, but the incident was not the first one. The victim relayed to the cops that the defendant had been physical with her three to four times before but she never reported it.
"As is typical in domestic violence cases, a large amount of the physical violence goes unreported, and in fact, the only reason that this one came to law enforcement's attention was because the victim asked her friend to drive her to the hospital and the victim there received stitches, she got a cut on her nose, cheek, and thigh as a result of the defendant's violence, and it was deep enough that she needed stitches, and it was because of going to the hospital that law enforcement got involved and all of this came to light. So yes, they do have children together and live together, but because of her safety, we would request that it be a stay-away order at least until he's done some progress." (Italics added.)
After considering these arguments and referring to the facts of the assault as described in the police report, the court said it would continue the no-contact order. The court found it important that the probation officer recommended this restriction after speaking with Wife. The court also noted there was no evidence Enriquez had made any progress in the anger management course. The court said it gave little weight to Wife's email, because it was unsigned and there were insufficient facts showing the email reflected Wife's true wishes. When defense counsel continued to assert that the Wife wants contact with Enriquez, the court said Wife was not at the hearing and it was not appropriate for counsel to be testifying, and that "if the victim desires to have [contact], have her [file a petition] . . . , [which contains information about] whether she's had a chance to talk to domestic violence advocates, whether she has a safety plan in place, how he's progressed."
Defense counsel then asked whether Enriquez would be allowed to respond to Wife's text messages, and the prosecutor replied that based on the court's existing order and comments at the hearing, "mutual contact isn't appropriate until the victim herself comes and says that she wants the defendant to be able to respond if she does reach out to him." The court said it "agree[d] with that." The court also observed that Wife retains the right to "contact [Enriquez]," and if she "does, he will not be able to respond. I think that if she wants him to be able to [respond], I recommend they ask the court for that."
The court then imposed three years' formal probation subject to various terms and conditions, including a 52-week certified anger management program; and that Enriquez "shall have no contact with . . . [Wife]. This will include any communication personally or through a third party and whether verbal, written or by nonverbal conduct. It will be clarified by the [criminal protective order] that will be issued which will include the safe exchange for any visitation for the children" (Boldface omitted.) The criminal protective order issued the same date stated: "[Enriquez] must have no personal, electronic[,] telephonic, or written contact with [Wife]"; and "must not come within 100 yards" of Wife, with an exception permitted for the "safe exchange of children and court-ordered visitations" by "any Family, Juvenile, or Probate court order issued after the date this order is signed."
DISCUSSION
I. Enriquez Did Not Waive Right to Appeal No-Contact Order
The Attorney General contends Enriquez waived his right to appeal the no-contact order based on the appellate-waiver provision in the plea agreement. We determine there was no waiver because the provision did not encompass matters occurring after entry of the plea.
Appellate waivers contained in a plea agreement are generally enforceable. (See People v. Panizzon (1996) 13 Cal.4th 68, 80.) But the waiver applies only to matters within the scope of the provision. (People v. Becerra (2019) 32 Cal.App.5th 178, 188-189.) In determining the scope, the courts apply a contract analysis and determine the parties' mutual intent by examining the plea agreement language and other objective criteria. (Id. at p. 189.)
To show a waiver, the Attorney General relies on the provision in Enriquez's plea agreement in which he agreed to "give up my right to appeal . . . any sentence stipulated herein." (Italics added.) The Attorney General also directs us to Enriquez's agreement that if he was placed on probation, he might be required to serve time in custody, "plus the fine, and any other conditions deemed reasonable by the Court." (Italics added.)
This court recently interpreted these same appellate-waiver provisions and found they did not bar the defendant from challenging an electronic-search waiver probation condition imposed at a sentencing hearing after the plea agreement. (People v. Patton (2019) 41 Cal.App.5th 934, 940-943.) We explained: "In waiving his right to appeal 'any sentence stipulated herein,' [the defendant's] plea agreement referred to the terms of the sentence that were included in the agreement itself. We construe that language to apply to the specifics of the stipulated sentenced specified in his plea agreement. By its terms, the scope of the waiver is limited; it did not encompass provisions (such as particular conditions of probation) that were yet to be determined in future proceedings." (Id. at pp. 942-943.)
This reasoning applies here. Although Enriquez was arguably on notice that the court would impose some form of a protective order when he pled guilty (see § 1203.097, subd. (a)(2)), there is no basis to find he agreed to any specific terms of the protective order (including a no-contact provision) or that he agreed he would not challenge the particular terms on appeal.
The Attorney General's reliance on People v. Espinoza (2018) 22 Cal.App.5th 794 is unhelpful because the Espinoza defendant's waiver agreement was significantly broader. The defendant "waived her 'right to appeal the judgment and any rulings of the court.' " (Id. at p. 801, italics added.) We also find unavailing the Attorney General's argument that the no-contact order was within the scope of the "sentence stipulated herein" language because Enriquez had been subject to a protective order with a no-contact restriction when he first pled guilty and was released from custody. There is nothing in the record showing Enriquez agreed, or the court had decided, that the terms of the initial protective order would remain identical once Enriquez was sentenced. The focus of the sentencing hearing was on Enriquez's challenge to the no-contact order, and neither the court nor the prosecutor suggested the challenge could not be made because the issue had already been decided.
We now turn to examine Enriquez's constitutional challenge on its merits.
II. Legal Principles and Analysis
When a defendant is convicted of an offense under section 273.5, subdivision (a), "the sentencing court shall . . . consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court." (§ 273.5, subd. (j).) In addition to this discretionary order, if a person is granted probation, the terms of probation "shall" include a criminal protective order "protecting the victim from further acts of violence, threats, stalking, sexual abuse, and harassment, and, if appropriate, containing residence exclusion or stay-away conditions." (§ 1203.097, subd. (a)(2), italics added.)
A no-contact order authorized under these provisions is subject to a constitutional challenge. (See People v. O'Neil (2008) 165 Cal.App.4th 1351, 1356 ["Judicial discretion to set conditions of probation is . . . circumscribed by constitutional considerations"]; Jungers, supra, 127 Cal.App.4th at pp. 703-705 [analyzing constitutionality of no-contact order between spouses].) Although a probationer is " 'not entitled to the same degree of constitutional protection as other citizens,' " (People v. Lopez (1988) 66 Cal.App.4th 615, 624), a probation condition that infringes on a constitutional right must be carefully tailored, relate to a compelling state interest, and be reasonably necessary to accomplish these goals. (In re Victor (2010) 182 Cal.App.4th 902, 910; People v. Robinson (1988) 199 Cal.App.3d 816, 818; see In re Sheena K. (2007) 40 Cal.4th 875, 890; Jungers, supra, 127 Cal.App.4th at p. 704.) These principles apply equally to a criminal protective order. (See People v. Race (2017) 18 Cal.App.5th 211, 220.)
In asserting his as-applied challenge, Enriquez argues the no-contact restriction violates his constitutional rights to free association and marital privacy. Although the order does impact these fundamental rights, we determine it was justified by the compelling state interest of eliminating domestic violence and protecting the safety of a domestic violence victim, and it was necessary to accomplish these important objectives under the circumstances here.
With respect to the governmental interest, both the Legislature and the courts have made clear that "[t]he elimination of domestic violence is a compelling state interest." (Jungers, supra, 127 Cal.App.4th at p. 704.) The Legislature has "expressed its intent 'that the official response to cases of domestic violence shall stress the enforcement of the laws to protect the victim and shall communicate the attitude that violent behavior in the home is criminal behavior and will not be tolerated.' " (Ibid.)
With respect to the necessity of the no-contact order to achieve the goal of protecting Wife, the record supports the restriction was necessary to ensure her safety. Enriquez admitted to smashing a car window in front of where Wife was sitting, causing Wife to suffer serious cuts (requiring stitches) to her face, arm, and thigh. Wife told the responding officer that Enriquez had engaged in physically abusive behavior several times before, but she also said she did not want him to be prosecuted. The record shows the only reason this incident came to law enforcement's attention was that the hospital contacted the sheriff's office when Wife came to the hospital for treatment of her wounds. Enriquez did not manifest any remorse and had not made any progress in addressing his out-of-control anger issues. Although he was aware of the need to complete an anger management course, the documentation showed he had enrolled in the course only several days before the sentencing hearing and there was no showing he had attended any classes.
Enriquez contends the no-contact order was constitutionally invalid because it was not sufficiently tailored, and that the court could have accomplished the goal of protecting Wife by allowing him to communicate with her if she initiated the contact. However, in declining to permit this exception, the court found a strict order was necessary to keep Wife safe at the current time. This finding was reasonable, particularly given Wife's history of denying or minimizing the risk of danger from Enriquez's conduct. The Legislature and courts have recognized that domestic violence victims often remain in abusive relationships despite the continuing danger; minimize what happened to them; refuse or fail to cooperate with the abuser's prosecution; and are afraid of retaliation. (See Jungers, supra, 127 Cal.App.4th at p. 705, fn. 3.) Because these characteristics limit the effectiveness of traditional enforcement efforts, domestic violence statutes seek "to protect 'victims from participation or complicity in their own predicament.' " (Ibid.)
Additionally, there was no credible evidence Wife desired to have any continued contact with Enriquez. The court reviewed the letter that came from Wife's email account suggesting she wanted to reunite with Enriquez, but the court found there was an insufficient basis to show the email reflected Wife's true wishes. As the factfinder, the court had a sound basis to reach this conclusion. Wife did not sign the letter, nor did she attend the hearing or petition the court for continued contact. Because there was no petition, there was no indication that Wife had spoken to domestic violence advocates or that she had a safety plan in place. The Legislature has identified these factors as important in determining the appropriate scope of a criminal protective order and whether to permit a modification of the order. (See § 1203.3, subd. (b)(6)(G).)
Relying on Jungers, Enriquez suggests the order was unconstitutional as a matter of law because it did not contain an exception for spouse-initiated contact. (Jungers, supra, 127 Cal.App.4th 698.) In Jungers, the trial court's order prohibited the defendant from calling or writing to his wife, but the court said the wife could write to the defendant and visit him at Teen Challenge, a residential placement. (Id. at pp. 701-702.) In determining the order was narrowly tailored, this court noted that the order "assures that contact between [the defendant and his spouse] is acceptable to and welcomed by [his spouse], thus supporting the state's compelling interest in preventing further incidents of violence, threats and harassment." (Id. at p. 705.) We concluded: "As drawn, the condition does not interfere with [the defendant's] marital relationship to an impermissible degree." (Ibid.)
Contrary to Enriquez's arguments, Jungers did not state or suggest an exception must be provided to assure a spousal no-contact order's constitutionality. The trial court in Jungers was responding to a specific set of facts in which the defendant was in a custodial residential placement and there was credible evidence his spouse did want to initiate contact with him and that she would be safe if any such contact occurred. (Jungers, supra, 127 Cal.App.4th at pp. 700-702, 705.) On this record, we upheld the trial court's determination. (Ibid.) The facts here are different. Enriquez is not in any type of residential treatment program. The trial court made a finding that there was insufficient showing that Wife in fact wanted contact and/or that she had been appropriately counseled as to her rights and the problems inherent in maintaining contact with someone who has repeatedly physically abused her.
Enriquez's claim that the order "essentially sever[s]" his marital ties does not establish a basis for reversal. (See In re Peeler (1968) 266 Cal.App.2d 483, 492-493 (Peeler).) The protective order is limited in time, and is carefully tailored to include an exception for exchanging and visiting children pursuant to any family court order. Moreover, the court made clear it was willing to consider a modification request from Enriquez if he shows he has made progress in addressing his anger management issues, and/or from Wife if she shows she desires continued contact after she has had the opportunity to obtain appropriate counseling and consider the relevant issues. (See § 1203.3, subd. (b)(6) [permitting a court to limit or terminate protective order terms in domestic violence cases].)
On the record before us, the no-contact order was necessary to accomplish the state's dual goals of protecting domestic violence victims and rehabilitating offenders, and was not overbroad. (See Jungers, supra, 127 Cal.App.4th at p. 705 ["state's compelling interest in protecting victims of domestic violence justifies the restriction on [defendant's] right to initiate contact" with his wife]; Peeler, supra, 266 Cal.App.2d at pp. 492-493 [upholding probation condition prohibiting probationer from associating with spouse, effectively requiring them to live apart]; see also People v. Wardlow (1991) 227 Cal.App.3d 360, 367 [probation conditions "prohibiting an individual from associating with other persons including spouses and close relatives, who have been involved in criminal activity have generally been upheld when reasonably related to rehabilitation or reducing future criminality"].)
DISPOSITION
Judgment affirmed.
HALLER, J. WE CONCUR:
HUFFMAN, Acting P. J.
DATO, J.