IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
February 17, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
COLIN LEE EXUM, DEFENDANT AND APPELLANT.
(Super. Ct. No. CM030716)
The opinion of the court was delivered by: Robie ,j.
P. v. Exum CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After his wife screamed at him for purposefully leaving on every light and appliance in the house, defendant Colin Lee Exum choked her for 10 seconds, while yelling he was going to kill her and her animals and burn down the house. She called 911, leading to a four-hour standoff between police and defendant during which defendant refused to talk with police or allow them inside the house without a warrant. The police eventually accompanied the wife inside to collect some of her belongings. Once inside, they arrested defendant, who smelled of alcohol and tried to resist being handcuffed.
Following a bench trial in which defendant took the stand and denied fighting with or choking his wife, the court found him guilty of inflicting corporal injury on his spouse. (Pen. Code,*fn1 § 273.5.) Thereafter, the court denied defendant's motion to reduce the offense to a misdemeanor (§ 17, subd. (b)(3)),*fn2 suspended imposition of sentence, and placed him on probation for three years.
Defendant appeals, contending abuse of discretion in denying his motion to reduce the offense to a misdemeanor and vagueness and overbreath problems with two of the probation conditions. Finding one of the probation conditions vague and overbroad, we modify that condition and affirm the judgment as modified.
The Court Did Not Abuse Its Discretion
In Refusing To Reduce The Offense To A Misdemeanor
The court denied defendant's motion to reduce the offense to a misdemeanor for the following three reasons: (1) defendant took the stand, offering "possible false testimony"; (2) he engaged in a "four[-]hour standoff [with police], which shows extremely bad judgment, and perhaps some disrespect for authority, and some character problems that would make it inappropriate to reduce the charge"; and (3) he choked the victim in "an extremely sensitive area . . . where your air intake is closed off for a brief period of time," which could also lead to "overwhelming" "psychological injury."
On appeal, defendant contends the court abused its discretion because it "violated [his] right to due process by punishing [him] for electing to testify," "violated [his] Fourth Amendment rights by punishing [him] for exercising his right against warrantless search and seizure," and "denied the motion based on generalized rather than individualized factors." We take each contention in turn, finding merit in none.
As to the court's consideration that defendant possibly perjured himself, defendant claims error because the court did not make "on-the-record findings as to each element of perjury" and the court imposed a greater punishment without actually finding defendant committed perjury. Defendant's argument relies on People v. Howard (1993) 17 Cal.App.4th 999, which held that "when imposing an aggravated sentence on the ground the defendant committed perjury at trial, the sentencing court is constitutionally required to make on-the-record findings as to all the elements of a perjury violation." (Id. at p. 1001.) Howard is inapplicable because the denial of defendant's motion was not akin to imposing an aggravated sentence.
Infliction of corporal injury on a spouse (§ 273.5) is a "'wobbler.'" A wobbler offense is a felony unless charged as a misdemeanor or reduced to a misdemeanor by the sentencing court under section 17, subdivision (b)(3). (People v. Statum (2002) 28 Cal.4th 682, 685.) Howard, on the other hand, involved the selection of a discretionary sentencing choice (the upper term) at a time the court was required to state reasons for imposing the upper term. (People v. Howard, supra, 17 Cal.App.4th at p. 1002; former Cal. Rules of Court, rule 4.406(b)(4).) The law does not require a trial court to make factual findings that a defendant committed the elements of perjury before using the fact that a defendant possibly committed perjury as a reason to deny a defendant's motion to treat the offense as a misdemeanor. To the contrary, the trial court may use a defendant's "'traits of character as evidenced by his behavior and demeanor at the trial'" as a factor in determining whether to exercise its discretion to treat a wobbler offense as a misdemeanor. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.) Here, the court did just that, using, in its own words, the fact defendant "took the stand, under oath, and told a story which [it] specifically found was not true . . . ma[king] credibility determinations in favor of the complaining witness." This was an acceptable factor for the court to consider in denying defendant's motion.
As to the court's consideration that defendant caused a four-hour standoff, defendant claims error because it "violated [his] Fourth Amendment right by punishing [him] for exercising his right against warrantless search and seizure." Defendant's argument misses the mark for two reasons. One, he was not punished for exercising his Fourth Amendment rights. As we have already explained, a wobbler offense is presumptively a felony. (People v. Statum, supra, 28 Cal.4th at p. 685.) Two, among the factors a court may consider in refusing to treat the offense as a misdemeanor is "'the defendant's appreciation of and attitude toward the offense.'" (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 978.) Defendant's conduct in refusing to talk with police and refusing to be handcuffed when police were lawfully in the house after he choked his wife reflects negatively on his attitude toward the offense. This too was an acceptable factor for the court to consider in denying defendant's motion.
Finally, as to the court's consideration that defendant choked his wife, defendant claims error because the court couched this consideration in a generalized term, stating, "choking . . . as a general form of conduct is more reprehensible than some forms of marital or domestic violence." In defendant's view, the court "punishe[d him] for generalized rather than individualized considerations." Not so. A fair reading of the sentencing transcript reveals the court was concerned with defendant's behavior of choking his wife, which it explained was in "an extremely sensitive area . . . where your air intake is closed off for a brief period of time," and was the reason "why choking is regarded a little more strictly [sic] than just a slight bruise or scratch that doesn't involve a choking." In essence, the court was comparing choking, which was defendant's chosen form of domestic violence, to other arguably less severe forms of violence such as bruising or scratching. "'[T]he nature . . . of the offense'" is a factor the court may consider in refusing to treat the offense as a misdemeanor. (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 978.)
In sum, the court did not abuse its discretion in using the factors it did when denying defendant's motion to reduce the offense to a misdemeanor.
Probation Condition No. 5 Must Be Modified
Defendant contends two probation conditions the court imposed, condition No. 3 and condition No. 5, were unconstitutionally vague and overbroad. We take each in turn, finding merit only as to his contention regarding condition No. 5.
Probation Condition No. 3
Probation condition No. 3 reads as follows: "Submit to search of your person, property, residence, vehicle, or any container under your control or in which you have an interest at any time, night or day, by any peace officer with or without a warrant of arrest, search warrant, reasonable or probable cause, your then presence or your then consent, for the purpose of determining compliance with the conditions of probation."
Defendant contends the qualification "'for the purpose of determining compliance with the conditions of probation'" "leaves completely open what searches would be for the purpose of determining compliance with conditions of probation" and "passes the responsibility and authority of determining [his] rehabilitative objectives to individual law enforcement and probation officers by letting them interpret what would be 'for the purposes of complying with the terms of probation.'"
We reject defendant's argument because our Supreme Court has upheld broader probation conditions. For example, in People v. Mason (1971) 5 Cal.3d 759, the court upheld a probation condition requiring the defendant to "'submit his person, place of residence, vehicle, to search and seizure at any time of the day or night, with or without a search warrant . . . .'" (Id. at p. 762.) The court explained that the defendant's acceptance of this probation term at sentencing was a complete waiver of his Fourth Amendment rights, subject only to his right to object to harassment or searches conducted in an unreasonable manner. (Mason, at p. 765, fn. 3.) Similarly, in People v. Bravo (1987) 43 Cal.3d 600, the court upheld a probation condition requiring the defendant to "'submit his person and property to search or seizure at any time of the day or night by any law enforcement officer with or without a warrant.'" (Id. at p. 602.) The court "s[aw] no reason to interpret the condition imposed on this [defendant] more narrowly" than the defendant in Mason. (Bravo, at p. 607.) Mason and Bravo control here. The condition is proper.
Probation Condition No. 5
Probation condition No. 5 reads as follows: "Totally refrain from the use or possession of any alcoholic beverages and not knowingly enter any place of business or location where alcohol is the primary item for sale or use. Do not ingest or use an item containing alcohol."
Defendant argues this condition is vague because it lacks a knowledge requirement with regard to the "use or possession of any alcoholic beverages" and is overbroad because it prohibits him from using "[n]on-ingestible household items" containing alcohol such as cleaning agents and vehicle fuels and also ingestible items such as cooking alcohol, whose intoxicating effects evaporate during food preparation. We agree.
As to the knowledge requirement, a probation condition must be sufficiently precise for the probationer to know what is required of him to withstand a challenge on the ground of vagueness. (In re Sheena K. (2007) 40 Cal.4th 875, 890.) A requirement of knowledge must be read into a probation condition that prohibits a defendant possessing certain items because the law has no legitimate interest in punishing innocent citizens who are unaware they have certain items in their possession. (People v. Freitas (2009) 179 Cal.App.4th 747, 752.) We therefore agree with defendant that we must modify the probation condition to specify he must have knowledge he is using or possessing any alcoholic beverage.
As to the overbreath challenge, "'"a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."'" (In re Englebrecht (1998) 67 Cal.App.4th 486, 497.) Here, the condition is overbroad because, as defendant points out, it unnecessarily precludes him from using harmless household items containing alcohol or ingesting items containing alcohol that has burned off during the cooking process. There is no probationary purpose served by such an extensive prohibition. Accordingly, we will modify the condition to strike this prohibition.
Probation condition No. 5 is modified to read as follows: "Totally refrain from the knowing use or possession of any alcoholic beverages and do not knowingly enter any place of business or location where alcohol is the primary item for sale or use."
As modified, the judgment (order of probation) is affirmed. The trial court is directed to amend the order of probation to reflect the change to probation condition No. 5.
We concur: HULL , Acting P.J. HOCH,J.