Opinion
A165722
01-19-2023
JEFFORY D., Petitioner, v. THE SUPERIOR COURT OF MENDOCINO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
NOT TO BE PUBLISHED
(Mendocino County Super. Ct. No. SCUK-CRCR-17902251)
Miller, J.
Pursuant to a plea agreement, Jeffory D. (petitioner or defendant) pleaded no contest to a felony count of sexual battery by restraint in exchange for placement on probation for up to five years. After the trial court granted petitioner four years' probation, the Legislature passed Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (AB 1950), effective January 1, 2021. Under AB 1950, most probation is limited to two-year terms, but others, including probation for crimes against victims of domestic violence, are statutorily exempt from this limit.
Subsequently, the probation department filed petitions to revoke petitioner's probation and he moved to dismiss the petitions, arguing his probation had been automatically terminated after two years under AB 1950. The district attorney responded that the four-year probation order was still valid because, even under AB 1950, such terms are permitted for offenses against victims of domestic violence as defined by Family Code section 6211 including, as relevant here, a person "related by consanguinity or affinity within the second degree" (Fam. Code, § 6211, subd. (f)), and the victim in this case was undisputedly a close relative of defendant.
The trial court rejected petitioner's argument finding that it was clear to the sentencing court and clear to the court now that the victim is a person defined by Family Code section 6211, and the two-year limitation on probation for most offenses under AB 1950 did not apply to this case under the facts that were known to the sentencing court at the time of plea and sentencing.
Petitioner asks this court for writs of mandate and prohibition ordering the superior court to grant his motion to dismiss the probation revocation petitions against him and to refrain from sentencing him, on the ground that his probation has expired based on the retroactive application of Penal Codesection 1203.1, as amended by AB 1950. (Stats. 2020, ch. 328, § 2.) Petitioner contends that the maximum period of his probation is now two years, not the four years imposed by the trial court at the time of his sentencing. The Attorney General does not dispute the statute is retroactive but contends petitioner's offense was committed against a domestic violence victim and is therefore statutorily exempt from the two-year felony probation limit. Acknowledging the domestic violence exception, petitioner claims that his degree of consanguinity with the victim was not included in the public record and that the trial court impermissibly found facts after petitioner's sentencing to "lengthen" the penalty, without first obtaining an admission or jury verdict. We issued an order to show cause, and the matter has now been fully briefed. We now conclude petitioner's position is without merit, and we deny the petition.
All statutory references are to the Penal Code, unless otherwise stated.
BACKGROUND
Petitioner was charged in a first amended criminal complaint filed on June 14, 2017, with two felony counts of forcible rape of a minor over 14 years old (§§ 261, subd. (a)(2), 264, subd. (c)(1)) and one count of dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). The minor victim was identified by her birthdate and the name "Jane Doe."
Change of Plea
On July 13, 2017, petitioner entered a negotiated plea of no contest to an added felony count of sexual battery of Jane Doe by restraint (§ 243.4) with the understanding that he would receive up to five years' probation (including the requirement that he participate in sex offender treatment) and the other charges would be dismissed. At the change of plea hearing, petitioner's attorney stated Dr. Kevin Kelly was going to conduct a psychological evaluation of petitioner and she would provide Kelly's report to the probation office as soon as she received it.
The stipulated factual basis for petitioner's plea was that "[d]uring the month of May of 2017, in the County of Mendocino, the defendant touched an intimate part of Jane Doe while she was unlawfully restrained by the accused and it was against her will. It was for the purpose of sexual gratification."
The district attorney reported at the change of plea hearing that she had met and discussed the case with the minor victim and the victim's father, and they agreed with the resolution. The sentencing court asked petitioner whether he understood "everything that's just been said," and he responded that he did.
The sentencing court accepted petitioner's change of plea and ordered that he would remain out of custody on bail. The district attorney asked that certain conditions of bail be added, including that defendant would "comply with the protective order until that's modified," a modification to which defense counsel readily agreed. This was a reference to the protective order dated June 2, 2017, then in place, which identified the victim by her full first, middle and last names and date of birth.
The Protective Order is an exhibit to the writ petition; the date of birth is redacted from the copy provided to this court, but there is apparently no dispute that it matches Jane Doe's date of birth on the complaint.
Motion to Withdraw Plea
Before sentencing, petitioner filed a motion to withdraw his plea. In support of petitioner's motion, his counsel filed a declaration under penalty of perjury from "the father of both Jeffory, the 'defendant' and [Jane Doe], the alleged victim in this case." Using the victim's first name throughout his declaration, petitioner's father referred to the victim and petitioner as "my daughter" and "my son;" he referred to and discussed the "allegation by my daughter against my son;" and he discussed what "my son" said about "his sister." Petitioner's father referred to his daughter by the same first name as that of the protected victim in the Protective Order.
Sentencing Hearing
Petitioner withdrew his motion to withdraw the plea sometime before the sentencing hearing on January 5, 2018.
The petition does not discuss petitioner's motion to withdraw plea, and the only evidence in the record before us is the declaration of petitioner's father (provided by the Attorney General with his answer to the writ petition) and the acknowledgment at the outset of the sentencing hearing that the motion was withdrawn. The trial court mentioned that "at the last occasion we talked about the motion to withdrawal [sic], which ultimately was withdrawn," but petitioner did not provide that transcript to this court.
At sentencing, the trial court stated it had read and reviewed the probation officer's report and recommendation and the 18-page psychological evaluation by Dr. Kelly. The probation officer's report itself summarized Dr. Kelly's report in detail, noting the psychological evaluation had been done "at the request of defense counsel." As part of the evaluation, petitioner had talked with Dr. Kelly about the incidents that gave rise to the charges; the probation officer's report quoted Dr. Kelly's report, which referred to these incidents as petitioner's interactions with "his sister."
Petitioner's counsel repeatedly referred to Dr. Kelly during the sentencing hearing, including in making a case for the appropriate counseling treatment for defendant. The probation department had requested the "SAFER" program, described as a program for sex offenders. Acknowledging that a therapy program was required under section 290.09, counsel stated that "at this point I think we're stuck with the request of probation of the SAFER program. I just need to strenuously object that this is the appropriate program for my client in light of that fact that pursuant to his Static-99 evaluation, his age, and Dr. Kelly's report, I do not believe that this young man should be required to go through a three-year counseling program." And later, in describing defense counsel's search for alternative therapists to "provide this type of counseling," counsel indicated that she would "ask . . . Dr. Kelly for any referral if he's aware of anyone." Defense counsel also referred to Dr. Kelly's report in objecting to certain conditions of probation that had been proposed by the probation department.
In discussing potential terms of probation, including a stay-away order, the attorneys and the sentencing court assiduously avoided using the victim's name in open court. Nonetheless, the district attorney observed that certain probation terms could be monitored and revised, "especially the issue of contacting the victim in this case since they're family members ...."
Along those lines, there was this colloquy between the court and defense counsel, referring obliquely to the victim by her initials:
"[Defense counsel]: . . . And he does have a complete stay away
"The Court: And he has [probation] term 14 that is a stay-away from
"[Defense counsel]: -from the person here, so . . .
"The Court: -the initials [ ]." (Italics added.)
The discussion of another condition of probation made clear that the victim was a sibling of petitioner's and was under 18. A person identified as Ms. Plaza, who appeared to be from the probation department, informed the court that "Dr. Kelly-after examining the defendant, [recommended] he not reside with any females younger than 18." When the sentencing court asked defendant to clarify who lived in his home, and defendant responded that he then lived with his father and younger brother (age 16), the sentencing court wanted to modify the probation office's proposed condition which, as then phrased, would have prohibited petitioner from living in a residence where there were any children under the age of 18 residing. The sentencing court said it did not want to "disrupt his family." But when Ms. Plaza proposed some alternative language ("[w]ith the exception of sibling?"), the sentencing court rejected it in light of the sibling relationship between petitioner and the victim:
"The Court: No. We can't do that because that encompasses other people." (Italics added.)
Instead, the court modified the probation condition to provide an exception for petitioner's younger brother, who was identified by name.
At the end of the hearing, the sentencing court asked for a termination of the June 2017 Protective Order described above, and the no contact order became a term of probation. The sentencing court suspended imposition of sentence and placed petitioner on probation for four years.
Probation Revocations
On January 30, 2019, the probation department filed a petition to revoke petitioner's probation. He admitted the allegations and on August 14, 2019, the court reinstated his probation on the condition that he serve a previously suspended 180 days in the county jail.
The probation department filed a second petition to revoke petitioner's probation on April 20, 2021, an amended petition on December 3, 2021, and apparently a "second amended" petition on March 1, 2022. On June 23, 2021 and April 29, 2022, petitioner admitted violating certain conditions of his probation.
The petition does not provide details of the various violations petitioner admitted committing. From motions filed in connection with probation violations, we gather that on April 29, 2022, petitioner admitted probation violations "including missed probation appointments, failure to attend multiple SAFER classes, and termination from the SAFER program."
In advance of the sentencing hearing on his probation revocation set for April 29, 2022, petitioner filed a motion to dismiss the pending petitions alleging violations of probation and to terminate probation on the ground that the trial court no longer had jurisdiction over him because, by retroactive application of newly enacted AB 1950, his period of probation had to be reduced from four years to a maximum of two years, citing section 1203.1, subdivision (a). Petitioner also argued that his offense did not fall within any of the exceptions to the two-year probation limit.
The district attorney opposed the motion. While recognizing AB 1950 amended section 1203.1 to restrict the length of most felony probation terms to two years, the district attorney argued the two-year limit does not apply to an offense that includes specific probation lengths within its provisions, citing section 1203.1, subdivision (l)(1). The district attorney pointed to section 1203.097, which governs probation terms for crimes against domestic violence victims and requires a minimum probation period of 36 months when probation is granted "for a crime in which the victim is a person defined in § 6211 of the Family Code." Under Family Code § 6211, subdivision (f), "domestic violence" includes abuse perpetrated against any person related to the defendant by consanguinity or affinity within the second degree. Here, the district attorney reasoned, "the victim of defendant's sexual battery was his sister," and thus his felony conviction was for a crime of domestic violence within the meaning of section 1203.097, and he was not entitled to a reduction of his probation term to two years.
In reply, petitioner argued that the record of conviction did not demonstrate that his case fell within Family Code section 6211 because the fact that the alleged victim was his sister (which petitioner did not dispute) was not found by a jury or admitted in his plea and therefore could not be considered by the court, and because section 1203.097, if applied under these circumstances, would have the effect of impermissibly increasing defendant's probation.
At a hearing on the motion to dismiss, the trial court framed the issue as whether there was evidence sufficient for the court to determine whether the victim of the sexual battery offense "was in fact the defendant's sister," and if she was, whether and how section 1203.097 would apply in this case.The trial court reasoned, "I don't think there's any doubt that all through these proceedings the Court was aware, as were the parties, the status of the victim in this case, and there were certain safeguards that the law puts in place to protect [the] identity of both a minor victim and a victim of sexual assault. [¶] But I do think that there's sufficient evidence in the record . . . that it's clear to this Court that at the time of judgment and sentencing and based on the terms of probation, including the length of the terms, that the Court was aware of the status of the victim as the defendant's sister. [¶] It's, of course, in the criminal protective order. It's in the PSI, which you've objected to the Court looking at, but it's also in the PSI the defendant's statements both to Dr. Kelly and to probation that the victim was the defendant's sister. [¶] I think it was clear to the Court then, as it is clear to the Court now, that the victim in that case is a person defined by Family Code Section 6211 and because of that finding I do believe that this is a case where 1203.097 does apply and that the 1203.1 limitation [of two years probation] does not apply to this case under these facts and the facts that were known to the sentencing court at the time that Mr. D[.] entered his plea."
The trial judge who heard the motion to dismiss that is the subject of this writ (Honorable Keith Faulder) is not the same judge who took the change of plea and sentenced petitioner (Honorable Ann Moorman). We sometimes refer to the latter as the sentencing judge.
"This is a case where charges were dismissed in favor of this disposition that Mr. D[.] accepted. He accepted a 48-month probation .... I'm not extending a period of probation .... I'm confirming that the Court at the time of sentencing had the authority to impose that sentence, including that probationary period, and that I don't find that this is a case that falls under 1203.1 and should be reduced to the two-year probationary period."
The trial court concluded that for all of those reasons it was denying the motion to dismiss the petitions and finding that the court had jurisdiction to make the findings that the court made when petitioner "admitted the violations of probation, both back in . . . 2021 and earlier this year.... So the motion to dismiss the petitions are denied for those reasons."
The court noted that petitioner's probation had been in revoked status since April 27, 2021 and had not been reinstated, and that after an admission to the first petition, other petitions had been filed.
The trial court set a date for judgment and sentencing. This writ petition was then filed.
DISCUSSION
Petitioner argues that newly amended section 1203.1, which limits the length of felony probation periods for most felonies to two years, is retroactive and applies to him. His claim presents an issue of statutory interpretation for our independent review. (People v. Saxton (2021) 68 Cal.App.5th 428, 500.)
Petitioner acknowledges that the two-year limit on probation periods does not apply when the offense is an "offense that includes specific probation lengths within its provisions" (§ 1203.1, subd. (l)(1)-(2)) and that one such exception to the two-year probationary period is section 1203.097, the statute that governs probation terms for crimes against victims of domestic violence.
Relevant here, section 1203.097 provides that "(a) If a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code, the terms of probation shall include all of the following: (1) A minimum period of probation of 36 months." In turn, Family Code section 6211 defines a victim of domestic violence as including, as relevant here, a "person related by consanguinity or affinity within the second degree." (Fam. Code, § 6211, subd. (f).) The relevant definition includes a close relative such as the victim in this case. (See People v. Forester (2022) 78 Cal.App.5th 447 [cases under section 1203.097 are an exception to the two-year limit on probation)].) Petitioner concedes that Forester has "settled the issue" that section 1203.097 is an exception to the two-year limit on probation.
Petitioner does not dispute the identity of the victim or that she is a close relative for purposes of section 1203.097. (And, when he objected to the trial court's decision not to terminate his probation, he did not object on the grounds that the victim in this case was not his sister.) Rather, petitioner contends that the trial court "denied petitioner his well established right to trial by jury on facts increasing his penalty when it extended his probationary period based on facts outside those admitted by petitioner in the record of conviction," citing Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).
The Attorney General argues that the trial court's ruling is not contrary to law and that petitioner has failed to meet his burden of pleading and proving facts to show the trial court erroneously denied his motion to dismiss the probation revocation petition. The Attorney General contends that "[t]he facts underlying the offense are undisputed," and petitioner's claim is "simply that his degree of consanguinity was not included in the public record, but the public record is, for good reason and by statute, designed not to identify a sexual assault victim by name or by details which would identify him or her."
Having reviewed the briefs and the record submitted by each of the parties, we conclude the trial court did not err.
As a preliminary matter, we note the retroactivity of AB 1950 is currently under review by our Supreme Court in People v. Prudholme (Aug. 26, 2021, E076007), 2021 WL 3781712 (nonpub. opn.), review granted November 10, 2021, S271057. For purposes of this petition, however, we will assume that AB 1950 applies retroactively under In re Estrada (1965) 63 Cal.2d 740, to petitioners who are currently serving a term of probation. (See Bowden v. Superior Court (2022) 82 Cal.App.5th 735, 740-741) [citing many published opinions holding that two-year felony probation limitation in AB 1950 is retroactive].) So the question is whether petitioner, who had been sentenced to a four-year probationary term, qualifies for the limit to a two-year period of probation provided under subdivision (a) of section 1203.1, or whether his offense is excepted from the two-year limit under subdivision (l). We conclude an exception applies.
The record makes clear the parties and sentencing court all knew the victim was defendant's sister, but petitioner would have us put on blinders to the facts that were well known and before the court at the time he was placed on probation for four years.
The complaint identifies the victim as Jane Doe, a child over 14 years of age, and "not [defendant's] spouse." (See § 293.5 [protection of victim's privacy in records and proceedings].) The criminal protective order filed at the outset of the case lists the full name (and birthdate) of the protected person: she is a female whose last name is the same as petitioner's.
The victim's familial relationship with petitioner was an aspect of the plea negotiations presented to the court. Before the sentencing court took petitioner's change of plea, the district attorney reported in open court that the "minor victim" and the "victim's father" were in agreement with the proposed resolution, and defendant responded affirmatively when the trial court asked him "did you understand everything that's just been said." Not using names was obviously in keeping with the protections afforded to minors and victims in abuse cases.
The probation officer's report, not included in the petition to this court but filed as an exhibit by the Attorney General, has a section entitled "Victim's Statement," which starts out by identifying a person with the same name as petitioner's father as "the father of . . . the 16-year old victim ...."
Petitioner's then defense attorney arranged for him to voluntarily submit to a psychological examination by Dr. Kevin Kelly, which was then provided to the probation office for their pre-sentence report. Large portions of Dr. Kelley's report are quoted verbatim in the probation office report; the alleged victim is referred to as "his sister." No other victim is described anywhere in the entire pre-sentence report.
Petitioner tried to withdraw his plea, submitting a sworn declaration from his father, who identified himself as parent to both defendant and the victim, and who also identified them by name and sibling relationship.
At the outset of the sentencing hearing, after defense counsel stated there was "no legal cause" why sentencing could not proceed, the sentencing court referenced the motion to withdraw plea, and confirmed it was withdrawn.
As the sentencing hearing proceeded, defense counsel objected to various terms of probation, but never sought to strike any statements from the probation office report, including Dr. Kelly's statements which made clear defendant's relationship to the alleged victim. Nor does petitioner contend he was denied the opportunity to do so. (See People v. Otto (2001) 26 Cal.4th 200, 212 ["Defendants are required by statute to have an opportunity to review and challenge inaccuracies in the presentence report"].) To the contrary, petitioner urged the court to consider Dr. Kelly's report in setting probation terms.
Further evidence as to the relationship between petitioner and the victim is apparent in the setting of probation terms at the time of sentencing. The sentencing court crafted language to permit petitioner to continue to reside in a home where his minor brother resided, going to lengths to identify the brother by name, and declining to make a generic exception for "sibling," acknowledging that "we can't do that because it would encompass other people," a clear reference to the sibling victim who was the subject of a stay away term of probation. Petitioner agreed at the conclusion of the hearing that he "accept[ed] probation on these terms."
The Order of Formal Probation stated: "You shall not have any direct or indirect contact in person, by mail, or by telephone with the victim [initials]."
In sum, we do not find that the trial court erred in concluding from the record of the prior proceedings as we have described it to determine that petitioner's felony sexual battery by restraint conviction constituted a domestic violence offense under section 1203.097 and thus to deny petitioner's motion to terminate probation. We are satisfied that the record shows beyond a reasonable doubt the relationship of the alleged victim to defendant.
Petitioner attempts to raise a constitutional claim, arguing he was entitled to a jury trial on the determination whether the victim was his sister and citing Apprendi, supra, 530 U.S. at page 490, Alleyne v. United States (2013) 570 U.S. 99, and People v. Gallardo (2017) 4 Cal.5th 120. In Apprendi, at page 490, the court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Italics added.) In Alleyne, at page 103, the Supreme Court extended the same principle in Apprendi and held that "any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury." In Gallardo, our Supreme Court "held that a trial court violates a defendant's Sixth Amendment right to a jury trial when it makes factual findings about the nature of a defendant's prior conviction in imposing an enhanced sentenced based on that prior conviction." (In re Milton (2022) 13 Cal.5th 893, 897, italics added.)
The cases petitioner relies on are inapposite. They all involve increasing a defendant's punishment beyond what would be permissible for the crime of conviction alone. But petitioner did not receive a sentence greater than that allowed for a conviction of sexual battery in violation of section 243.4, which is punishable by imprisonment in county jail for up to a year or imprisonment in state prison for two, three, or four years. (§ 243.4, subd. (a).) Apprendi and its progeny do not address the trial court's decision about whether a defendant is suitable for probation and, if so, the length of a probationary term. Petitioner tries to bridge that gap by stating that "subjecting petitioner to the continued threat of prison and the significant restraints on his liberty that probation entails was by any standard an increase in his penalty," and noting that probation is" 'a form of punishment.'" Petitioner also claims that the facts relied on by the court in determining that this was a domestic violence offense for purposes of section 1203.097 were not admitted or proved beyond a reasonable doubt.
Other than reciting these cases and the principles for which they stand, petitioner cites no authority-and we have found none-that suggests they apply to orders granting probation generally or to the trial court's determination that petitioner's four-year probation term had not expired by operation of AB 1950 specifically. Indeed, petitioner concedes that he "does not quarrel with the idea that restraints on a probationer's liberty via conditions of probation may be broad and based on facts not specifically found by a jury," citing People v. Lent (1975) 15 Cal.3d 481, 486. The probation conditions in this case, as we have discussed, including staying away from the victim.
As our Supreme Court explained in People v. Moran (2016) 1 Cal.5th 398, "A grant of probation is 'qualitatively different from such traditional forms of punishment as fines or imprisonment. Probation is neither "punishment" (see § 15) nor a criminal "judgment" (see § 1445). Instead, courts deem probation an act of clemency in lieu of punishment [citation], and its primary purpose is rehabilitative in nature [citation].' (People v. Howard (1997) 16 Cal.4th 1081, 1092.) Accordingly, we have explained that a grant of probation is an act of grace or clemency, and an offender has no right or privilege to be granted such release. (People v. Anderson (2010) 50 Cal.4th 19, 32.) Stated differently,' "[p]robation is not a right, but a privilege." '" (People v. Moran, supra, 1 Cal.5th at p. 402.) Given that a grant of probation is a grant of clemency, not a traditional form of punishment, we do not believe Apprendi and its progeny, which are concerned with increases in punishment beyond the statutory maximum, have any application to this case.
Furthermore, even if we assume there could be Apprendi error in the context of granting probation, petitioner has not shown prejudice. "Such an error does not require reversal if the reviewing court determines it was harmless beyond a reasonable doubt, applying the test set forth in Chapman v. California (1967) 386 U.S. 18." (People v. French (2008) 43 Cal.4th 36, 5253.) "The failure to submit a sentencing factor to a jury may be found harmless if the evidence supporting that factor is overwhelming and uncontested, and there is no 'evidence that could rationally lead to a contrary finding.'" (Id. at p. 53.) Here, we are confident from reviewing the record beyond a reasonable doubt that, had the issue been litigated, a jury applying the beyond-a-reasonable-doubt standard would have determined that the victim in this case was defendant's sister. Accordingly, any potential Apprendi error is harmless.
DISPOSITION
The petition for writ of mandate and writ of prohibition is denied.
WE CONCUR: STEWART, P.J., RICHMAN, J.