Opinion
B199077
6-24-2008
THE PEOPLE, Plaintiff and Respondent, v. GRAHAM SCOTT GRIFFIN, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Graham Scott Griffin appeals from an order modifying probation previously granted following his plea of no contest to stalking (Pen. Code, § 646.9, subd. (b)) with an admission the offense was a hate crime (Pen. Code, § 422.75, subd. (a)). Appellant claims the order was erroneous. We affirm it.
FACTUAL SUMMARY
The record reflects that between about September 22, 2004, and May 22, 2006, appellant committed the above offense.
CONTENTION
Appellant contends that the condition of his probation that he stay away from his property except for maintenance reasons must be stricken because the condition has no reasonable rehabilitative or public safety purpose.
DISCUSSION
The Trial Courts Stay-Away Probation Condition Was Proper.
As shown below, testimony elicited at appellants June 2006 preliminary hearing established that appellant, who lived on unimproved property, was stalking a neighbor. Based on that conduct, appellant, in August 2006, entered the previously mentioned no contest plea. In January 2007, pursuant to the plea, the court ordered that appellant transfer the property and stay away from it. However, in April 2007, after appellant made a motion to modify his probation, the court tentatively ruled it would delete the transfer condition, and modify the stay-away condition to permit appellant to visit the property for maintenance purposes. At a later April 2007 hearing, the courts tentative rulings became final. Appellant challenges the stay-away condition as modified.
1. Pertinent Facts.
a. The June 2006 Preliminary Hearing Testimony, and Pre-Plea Proceedings.
A complaint charged appellant with attempted criminal threats and stalking. At appellants June 7, 2006 preliminary hearing, Los Angeles Police Dispatcher Marisa Lujan testified as follows. At 2:28 a.m. on May 22, 2006, appellant called Lujan from a pay phone. Appellants speech was rambling and profanity-laden, but he said the following. Appellant was going to walk from the pay phone to "5370 Mount Royal," which was about a mile away. Appellant was a terrorist and was going to beat up someone, whom appellant identified. Appellant was going to harass and assault the man who lived there. The prosecutor played a tape of the call. Lujan then testified that anytime someone harassed or threatened anyone due to sexual orientation, it was a hate crime.
Arthur Mattox testified as follows. Mattox, a homosexual, lived at "5370 Mount Royal" in Eagle Rock, and had lived there for 22 years. He lived on a "narrow street on an incline leading up the hill with nine houses on it." There had been a series of incidents on the street where teenagers whom "we had never seen in the area kept walking past our houses" to a vacant lot at the end of the street.
Appellant lived in a vehicle up the hill and at the end of the street. He also owned a wooded piece of property at the top of the hill. Appellant lived there even though there was no house on the property. Teenagers and other persons went there. Mattox and the neighbors observed what was occurring and it disturbed him. Police were called and they removed some of the people.
After that, every time appellant walked by or rode by Mattoxs home, appellant would complain that Mattox was out to get appellant, Mattox was harassing him, and Mattox should not interfere with appellants friends. Appellant would have to pass Mattoxs home to get to appellants property.
In September 2004, appellant began threatening Mattox. About midnight on one occasion in September 2004, Mattox heard appellant coming down the street yelling hateful things in a very loud and very threatening manner. Appellant was yelling right outside Mattoxs bedroom window, which was about eight feet from the street. Mattox was able to identify appellants voice because, after two years of what had been happening, Mattox was very familiar with appellants voice. Appellant repeatedly yelled for about five minutes, "`Homo, Mother fucker. Im going to beat you." Appellant was on the street and screaming it at the top of his lungs. Mattox was terrified and called 911.
Mattox also testified as follows. There were additional similar contacts. In 2005, every time appellant would drive by or walk by, he would "yell something, `Im going to beat you. Im going to get you. You cant treat me like this. Things to that effect." Appellant made similar threats against Mattox in 2006. On the night before Easter in 2006, appellant approached Mattoxs house and screamed "at the top of his lungs, `Homo. Mother fucker. Im going to kick your ass." Appellant was saying this repeatedly as he walked down the hill, and his voice became louder. Mattox called 911 and said "hes back."
About 6:00 a.m. on May 22, 2006, Los Angeles Police Officer Joe Galindo contacted Mattox and told him that police had arrested appellant because, in the presence of police, appellant repeatedly had threatened to kill Mattox. Mattox was terrified, and put his home up for sale.
Galindo testified as follows. On May 22, 2006, Galindo contacted appellant in jail. Appellant told Galindo that when appellant got out of jail, appellant was going to "get that mother fuckin fag; he doesnt know who hes fucking with."
Appellant appeared to be intoxicated. Galindo served a restraining order on appellant.
During argument at the preliminary hearing, the magistrate acknowledged that, on the tape, appellant told Lujan that Mattox "should take the protective order and shove it up his ass."
Appellant presented no defense evidence. After the presentation of evidence, appellant moved to dismiss the complaint. During argument on the motion, appellants counsel commented that appellant could be considered as having disturbed the peace of the neighbors, but appellant had not committed the crime of criminal threats. Appellants counsel acknowledged that appellant had to pass by the neighbors homes to get to his house. The magistrate denied the motion to dismiss and held appellant to answer on both charges.
An information filed in June 2006, alleged attempted criminal threats (count 1) and stalking (count 2). On August 16, 2006, the court granted appellants Penal Code section 995 motion to dismiss count 1.
b. The August 2006 No Contest Plea.
On August 18, 2006, the court indicated it would accept a plea with the understanding the court would place appellant on probation and, if appellant violated probation, the court could sentence appellant to prison. Appellants counsel later indicated that he had explained to appellant, inter alia, that if appellant "blatantly went back to Mr. Mattox, or to this neighborhood, contrary to the agreement," the court could impose the maximum sentence. The court agreed counsels explanation was accurate.
The court then indicated that appellant would have one year from the date of the plea to transfer his property. Appellant asked the court why the court was interested in appellants property if Mattoxs complaint was that Mattox sold his house and was afraid. The court replied, inter alia, "because its apparently a problem not only with the individual complainant but with the whole area there where you live." The court indicated it could sentence appellant to prison but, instead, was requiring appellant as a condition of probation that he sell his property and stay away from the area. Appellant indicated he had no problem with a three-year stay away condition. The court indicated appellant had until September 2007 to transfer his property.
The prosecutor represented that appellant had been staying with a neighbor, and everyone in Eagle Rock knew appellant. After discussions, the court stated, "This is what the exact order will read: He is to stay a thousand yards from the location of the property and Mr. Mattoxs property." The prosecutor later requested 1,500 yards and said "He basically is going to be not seeing the neighbors in this location, hes not going to have any contact with them."
Appellants counsel complained that 1,500 yards would prevent appellant from watching his son play baseball at a local park. The court replied, "Unfortunately, hes got this whole neighborhood up in arms about him, so its not that simple. But actually Im going to make a definitive statement; this is going to be it. Its 1200 yard[s]." The court asked appellant if he wanted to accept the proposed agreement. Appellant replied yes.
During the taking of the plea, the prosecutor indicated appellant would plead with the understanding he would serve time in local custody and, in January 2007, the court would place appellant on probation for three years. The prosecutor told appellant that if he was found within 1200 yards of the street or neighborhood, the court could find appellant in violation of probation and sentence him to prison. The prosecutor asked if appellant understood, and he replied yes.
The court later indicated that, before the prosecutor took the plea, the court wanted information about the property location. The prosecutor represented that "5328 Mount Royal" was Mattoxs address. Appellant represented that "5370 Mount Royal" was appellants address. The court observed that appellants address was right next to Mattoxs address, and the prosecutor suggested appellants address was right up the block. The court told appellant that he had to stay 1200 yards from both properties, and appellant agreed to do so. Appellant then entered the previously mentioned no contest plea and admission.
c. The January 2007 Probation Hearing.
At a January 17, 2007 probation hearing, the court ordered appellant placed on formal felony probation for three years on various conditions, including that appellant "must transfer the property." Appellant identified the location of his property as 5370 through 5392 Mount Royal, and indicated there were four lots on one parcel of property. The court ordered appellant to transfer that property no later than September 30, 2007. The court also ordered that if another state would not accept appellant, he could not leave California and would remain on probation for three years. The court stated an additional probation condition was that appellant must stay 1500 yards from 5370 through 5392 Mount Royal.
Appellant indicated that Mattox had sold his property and moved far away. Appellant asked that the court order him to stay away from any place where he knew Mattox was, as opposed to ordering appellant to stay away from appellants property.
The prosecutor objected that appellant had driven Mattox away from his home of over 20 years, and was now claiming that, because appellant had driven him away, the court should not impose a stay-away order. The prosecutor commented that appellant had terrorized the entire neighborhood and the prosecutor wanted the stay-away condition.
Appellant expressed concern about the stay-away condition, and the court stated, "You did agree with it because we kept moving the distance. He said he had a son that played ball in that area. We finally agreed on that, and the prosecutor is right that it was — because its not just this victim, its the whole neighborhood thats up in arms about [appellant]. Im not going to change that [condition]." The court later ordered appellant to "stay 1200 yards away," except that if appellant sought the courts permission, the court would permit appellant "to go over there to handle the transfer in property." Appellant accepted the probation conditions. The court scheduled a hearing in May 2007 to determine if appellant had been complying with probation and "staying away from this property" and scheduled a hearing on September 30, 2007, to determine if appellant had transferred the property.
The court indicated it had no problem notifying the prosecutor when appellant intended to go to his property in connection with its transfer, and police would go with him.
d. The April 2007 Probation Modification Proceedings and the Courts Tentative Rulings.
On April 5, 2007, appellant, represented by new counsel, filed a motion to modify the probation conditions that appellant transfer his property and "stay at least 1200 yards away from [Mattoxs] house." (Sic.) The motion indicated Mattoxs home was four houses away from appellants property, and Mattox had sold his home.
At the April 6, 2007 hearing on the motion, the court tentatively ruled as follows. The court would modify appellants probation by deleting the condition that appellant transfer his property. The court explained it would do so because Mattox no longer lived at his property, there would be tax and other onerous consequences to appellant if he had to sell his property, and the court had been unaware of those consequences when it had imposed the transfer condition. The court noted appellant had entered an open plea. The court later stated, "as a consequence of allowing him to keep his property — it will follow that he will be able to go to the property, but I will impose some limiting — he cant live there." The court noted the property was unimproved, and "theres no house on it."
The court also tentatively ruled it would not modify the stay-away order. The court later observed, "I do think its okay to keep him out of the area because it was brought to my attention that the neighbors have also complained about [appellant]. . . ."
e. The April 23, 2007 Probation Modification Proceeding and the Courts Final Rulings.
On April 23, 2007, the court indicated it would delete the probation condition requiring appellant to transfer his property, but the court stated, "Im going to keep the condition about going to Eagle Rock to the extent that he may only go to Eagle Rock in connection with taking care of his property which is located there, but he cant just go there to hang out or annoy people, harass people or anything like that." The court later commented, "I would prefer to limit him going to that area because of all the problems that have occurred with the neighbors, but I believe saying [sic] he has access to maintain, take care of the property and to conduct any transactions involved in selling the property, thats it."
The court later stated, "Im eliminating the condition that he . . . is required to sell the property or transfer the property or quitclaim the property. That probation condition is deleted, no longer a condition of probation. Im also allowing him to have access to the property. He no longer has the 1200-yard condition. He may have access to the property . . . but to maintain, control, take care of the property and for purposes of the attempts to sell the property. [Sic.] [¶] If at a later date and time he actually takes some genuine steps towards building something on the property . . . I will consider modifying it for that purpose, but not at this time."
The prosecutor asked if the court was eliminating the stay-away order completely. The following then occurred: "[The Prosecutor]: I thought what you were discussing was that the defendant could go to the area to go to his property to take care of his property, to look at the . . . trees, to look at the brush, to look at the hill, and when he finishes doing that, he had to leave. [¶] The Court: Thats what the condition was, yes. [¶] . . . [¶] He still has to stay away, but he has to have access to his property to take care of it. Yes, there is still a stay away from that area except for purposes of him going to the property to do all these things that he might want to do."
2. Analysis.
Appellant claims that his probation condition that he stay away from his property "except for maintenance reasons" must be stricken. We disagree.
a. People v. Watkins.
People v. Watkins (1987) 193 Cal.App.3d 1686 (Watkins) is illuminating. In that case, the defendant, involved in an ongoing 20-year feud and boundary dispute with his next-door neighbors, burned their cars and was convicted on two counts of arson. (Id. at p. 1688.)
At the sentencing hearing, the court had before it information (Watkins, supra, 193 Cal.App.3d at p. 1689) that, over the years, 14 incidents involving assault, vandalism, felonious assault, and arson against the next-door neighbors had been reported to police. Another neighbor reported seeing the defendant grab the buttocks of that neighbors daughter, and a different neighbor indicated to the court that neighbors felt that the defendant was dangerous because they did not know what he would do next. The trial court ordered the defendant placed on probation (id. at p. 1688) on the condition that he "`not go at or near the real property [of his home] for any purpose." (Id. at p. 1689.)
The defendant, on appeal, challenged the stay-away condition, and the challenge presented the issues of whether the condition was reasonable and whether it constituted banishment. (Watkins, supra, 193 Cal.App.3d at pp. 1688-1689.)
Watkins stated, "We . . . point out the apposite rules. [¶] `"A condition of probation will not be held invalid unless it `(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . . []" [¶] There is, of course, no question that the condition imposed in this case infringes the exercise of a fundamental right . . . protected by both the federal and state constitutions. . . . Nor is there any question that for this reason the condition must be subjected to special scrutiny to determine whether the restriction is entirely necessary to serve the dual purposes of rehabilitation and public safety . . . . `"`Where a condition of probation requires a waiver of precious constitutional rights, the condition must be narrowly drawn; to the extent it is overbroad it is not reasonably related to the compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights. . . ." [Citation.]" (Watkins, supra, 193 Cal.App.3d 1688.)
Watkins observed, "We recognize that a requirement that a probationer may not go near his home seems extremely harsh. But homes in our society may readily be sold or rented. [Fn. omitted.] And the trial court was available to Watkins for modification of the probation order for aid in such a disposition. It must have been obvious to the trial court that were Watkins to continue living next door to the neighbors, further crimes and violence would inevitably occur. And surely the victims of his crimes could not reasonably be expected to move under the circumstances." (Watkins, supra, 193 Cal.App.3d at p. 1689.) In the omitted footnote, Watkins noted that the defendants home had been sold.
Watkins continued, "We conclude that the challenged probation condition, although severe, (1) had a relationship to the crimes of which the offender was convicted, (2) that it related to future conduct not in itself criminal, and (3) that it required future conduct reasonably related to probable future criminality. [Citation.] [¶] Applying the `special scrutiny standard to the probation condition, we hold that it was valid." (Watkins, supra, 193 Cal.App.3d at p. 1689.)
b. Application of the Law to This Case.
The present case is similar to that in Watkins. The trial court in the present case had before it information that over a two-year period, appellant, claiming he was a terrorist, repeatedly accosted Mattox, a neighbor, with loud, boisterous, profanity-laden hate speech, and threatened to assault and kill him.
In some respects, the instant facts present a stronger case for upholding a stay-away condition than did the facts in Watkins. The stay-away condition upheld in Watkins completely barred the defendant in that case from going to his property for any purpose. That is not true of the stay-away condition in the present case, which at least permitted appellant to go to his property to maintain or sell it. The stay-away condition upheld in Watkins barred the defendant from going home. The condition in the present case barred appellant from going to unimproved property. The stay-away condition in Watkins was imposed in part because it would have been unfair to have any of the defendants neighbors move. One of appellants neighbors, Mattox, already had to move.
Finally, unlike the defendant in Watkins, appellant had expressed a willingness to leave California completely.
It is true that, unlike the victims in Watkins, the victim in the present case, Mattox, apparently had sold his house and moved before the January 2007 probation hearing, and was therefore presumably no longer at that house when the trial court, on April 23, 2007, modified the stay-away order. However, the trial court, as shown below, had reason to be concerned with more than merely Mattoxs welfare.
Fairly read, Mattoxs preliminary hearing testimony reveals the following. Mattox and his neighbors repeatedly had seen teenagers and other unknown persons passing the neighbors homes while walking to appellants property. Police removed some of the people, but appellant complained they were appellants friends and Mattox should not interfere with them. Nothing in the record indicates the unknown persons ever stopped going to appellants property, and a trial court reasonably could conclude that if neighbors other than Mattox complained to police, appellant would harass and threaten them like he had harassed and threatened Mattox.
Moreover, Mattox described the street on which appellant had conducted his loud, nighttime, and profanity-laden tirades as a narrow street with nine houses. Appellants screaming at the top of his lungs increased the risk that Mattoxs neighbors heard appellants tirades. Appellant conceded at the preliminary hearing that he was disturbing the peace of the neighbors.
Penal Code section 415, provides, in relevant part, "Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine: [¶] (1) Any person who unlawfully . . . challenges another person in a public place to fight. [¶] (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. [¶] (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction."
Further, events that occurred during the proceedings leading to appellants no contest plea reflected concerns about the neighborhood. On August 18, 2006, (when the court intended to impose the transfer condition and the unqualified stay-away order), appellants own counsel told appellant that if appellant went back to the "neighborhood" he could be imprisoned. The court told appellant "its apparently a problem not only with the individual complainant but with the whole area there where you live." At a time when the trial court indicated it would order appellant to stay away from the "area", appellant said "Right." The court indicated it wanted to monitor appellant on probation until September 30, 2007, to make sure that appellant did not do anything else of this nature. The court said this after appellant had advised the court that Mattox had sold his home, permitting the inference that the court was concerned about not only Mattox but the neighbors.
The prosecutor appeared to convey the communitys concerns when he represented that everyone in Eagle Rock knew appellant, and the prosecutor conveyed his understanding that appellant would not be seeing or contacting the neighbors. The court observed that appellant had the entire neighborhood up in arms about him. The prosecutor, during the taking of the plea, told appellant that if he was found within 1200 yards of the street or neighborhood, the court could imprison appellant.
At the January 2007 probation hearing, after appellant had indicated that Mattox had not only sold his home but moved, the prosecutor commented he still wanted the stay-away order because appellant had terrorized the entire neighborhood and it was a neighborhood problem. The court again indicated that the problem was not just Mattox, but that the whole neighborhood was up in arms about appellant. It was after that that appellant accepted the probation conditions, including the stay-away condition (which at the time, completely barred appellant from going to his property). The prosecutor again expressed concern that neighbors would be on notice that appellant could not go to the location.
At the April 6, 2007, probation modification hearing, the court tentatively agreed to delete the transfer condition but refused to delete the stay-away condition. The court indicated it approved of keeping appellant out of the area because the court had learned that the neighbors had complained about appellant. The court tentatively indicated it would keep the stay-away condition but permit appellant to go to his property for maintenance purposes. The court added, however, that if it found out that appellant was having a problem with the neighbors, appellant might be incarcerated. Appellant said he understood.
At the April 23, 2007 probation modification hearing, the court indicated that appellant could not just go to the area to be there or to annoy people, and the court preferred to place limitations on appellant going there because of all the problems that had occurred with the neighbors. The court later imposed its ultimate stay-away condition which was subject to an exception that appellant could go to his property to maintain or sell it.
Appellant did not dispute the comments of the prosecutor or trial court concerning the impact of appellants misconduct, or the potential impact of similar future possible misconduct by him, on his neighbors. The trial courts April 23, 2007 stay-away condition had a "`"relationship to the crime of which the offender was convicted,"" "`"require[d] . . . conduct which [was] . . . reasonably related to future criminality"" (Watkins, supra, 193 Cal.App.3d at p. 1688) towards Mattoxs neighbors, and was entirely necessary to serve the dual purposes of rehabilitation and public safety. The trial court did not err by imposing the stay-away condition as modified.
Appellant already had shown contempt for lawful court efforts to prevent his misconduct. (See fn. 1.)
DISPOSITION
The order modifying appellants probation is affirmed.
We concur:
KLEIN, P. J.
CROSKEY, J.