Filed 8/27/18 P. v. Tjogas CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I. INTRODUCTION

Appellant James Samuel Tjogas, Jr., appeals an order denying his motion to modify the terms of his probation. Desiring to make contact with his 15-year-old daughter, Tjogas petitioned for modification of a no contact restriction barring him from seeing his wife and children under the terms of a protective order that was put in place as a condition of his probation under Penal Code section 646.9, subdivision (k).[1] He has now filed repeated, unsuccessful petitions for modification of this protective order. The present appeal arises out of the third such petition, the first two having been denied without prejudice to refiling.

In support of his latest petition, Tjogas tried to persuade the trial court that it should authorize a family law department to evaluate whether contact with his children is appropriate, thus permitting modification of the protective order if a family law judge sees fit to order it. The court saw no more merit to this “end run” attempt at obtaining modification of the protective order than it saw in the first two petitions—in fact, it found Tjogas’s repeated petitions were part of a continuing pattern of stalking behavior designed to instill fear in family members who wished to have no contact with him—and, accordingly, it denied the petition with prejudice, directing Tjogas not to try again. Now on appeal, Tjogas argues that the court’s refusal to grant his petition was an abuse of discretion. We shall affirm.

II. BACKGROUND

The protective order at issue here arose from two separate cases now combined on appeal: No. SC077393 and No. SC077914. The first, No. SC077393, filed on February 1, 2013, charged Tjogas with harassment or stalking of a family member (Pen. Code § 646.9, subd. (a), count 1); harassment or stalking after issuance of a family court order (§ 646.9, subd. (b), count 2); corporal injury to a spouse (§ 273.5, subd. (a), count 3); misdemeanor violation of an emergency protective order (§ 136.2, count 4); residential burglary (§ 460, subd. (a), count 5); destruction of property (§ 594, subd. (b)(1), counts 6 and 13); misdemeanor violation of a family court order (§ 273.6, subd. (a), counts 7-9, 11, 14, and 18); misdemeanor trespass (§ 602.5, subd. (b), count 10); possession of cocaine (Health & Saf. Code § 11350, subd. (a), count 12); dissuading a witness (§ 136.1, subd. (c)(1), count 15); making a criminal threat (§ 422, count 16); and misdemeanor making a telephonic threat (§ 652m, subd. (a), count 17). Count 12 was later dismissed on April 5, 2013, on the People’s motion.

The second case, No. SC077914, charged Tjogas with harassment or stalking after issuance of a family court order (§ 646.9, subd. (b), counts 1 and 56); harassment or stalking of a family member (§ 646.9, subd. (a), count 2); dissuading a witness (§ 136.1, subds. (a)(1), (b)(2), counts 3-28, 57-58), misdemeanor violation of a family court order (§ 273.6, subd. (a), counts 29-54, 59-62); and misdemeanor contempt of court (§ 166, subd. (c)(1), count 55).

Following a negotiated disposition, Tjogas pleaded no contest to count 3 in SC077393 and counts 3, 54, 55, and 56 in SC077814 on May 23, 2013. The trial court resolved both cases on July 3, 2013, suspending imposition of sentence and placing Tjogas on probation for five years, conditioned on a one-year county jail term and a 10-year protective order for Tjogas’s wife and children which would expire on July 2, 2023 (§§ 136.2, 273.5, subd. (i), 646.9, subd. (k), 1203.097).

Tjogas sought to modify the protective order twice before filing the petition at issue here, first on November 19, 2013, and then on April 15, 2014, but both motions were denied without prejudice. Tjogas made the same request a third time on May 16, 2016, addressing that request at a hearing on June 30, 2016.

At the hearing, noting that his 15-year-old daughter had sought contact with him by text message, Tjogas argued that a family law court has power to modify the protective order should it find that circumstances warrant lifting the restrictions on contact with his children. He requested such a modification, explaining that he had completed his jail sentence, he had yet to violate his five-year probation, and he had “never engaged in any kind of violent acts toward his children.”

At the conclusion of the hearing, the trial court denied Tjogas’s petition with prejudice, stating that the protective order was put in place to protect his wife and children, and his repeated attempts to modify the order were “a continuation of his stalking-type behavior” aimed at “harass[ing] and torment[ing] . . . people who do not want to have contact with him.” The court pointed out that Tjogas’s wife and children were free to ask the court of their own accord to modify the protective order if they so choose, but Tjogas himself could not bring any further requests to modify the order.

Tjogas timely appealed.

III. DISCUSSION

Tjogas challenges the trial court’s denial of his motion to modify the section 646.9 protective order included in his conditions of probation, claiming the trial court’s reasons for refusing to authorize contact with his children were so arbitrary and capricious that they amounted to an abuse of discretion.

“Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) “Probation is neither ‘punishment’ [citation] nor a criminal ‘judgment’ [citation]. 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.) A grant of probation is thus an act of grace or clemency; it is a privilege, not a right. (People v. Anderson (2010) 50 Cal.4th 19, 32; People v. Bravo (1987) 43 Cal.3d 600, 608.)

Except in certain limited circumstances, a trial court has broad discretion when sentencing a criminal offender. (People v. Moran (2016) 1 Cal.5th 398, 402.) Sentencing courts are authorized by state law to impose conditions of probation that are “fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and . . . for the reformation and rehabilitation of the probationer.” (§ 1203.1, subd. (j); Moran, supra, at pp. 402-403.) But this broad discretion is not limitless; “a condition of probation must serve a purpose specified in [section 1203.1],” and conditions regulating noncriminal conduct must be “ ‘reasonably related to the crime of which the defendant was convicted or to future criminality.’ ” (Carbajal, supra, 50 Cal.4th at p. 1121.)

We review a trial court’s imposition of conditions of probation for an abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379.) Absent an abuse of discretion we defer to the trial court’s decision, only disturbing it “when [the trial court’s] determination is arbitrary or capricious, or ‘ “exceeds the bounds of reason, all of the circumstances being considered.” ’ ” (Carbajal, supra, 50 Cal.4th at p. 1121; People v. Franco (1986) 181 Cal.App.3d 342, 348.)

Before we turn to the issue of whether the trial court abused its discretion in denying Tjogas’s petition, we must first address whether the protective order as to Tjogas’s children was authorized by statute.[2] Although neither Tjogas nor the People raised this argument in their initial briefing, we requested both parties submit supplemental briefing addressing it.

A. The Protective Order Properly Included Appellant’s Children

The threshold issue we have identified, specifically stated, is whether the trial court was authorized by section 646.9, subdivision (k) to include Tjogas’s children in the protective order, when Tjogas was charged with committing domestic violence only against his wife. We begin with consideration of the governing statutes.

“Issues of statutory interpretation are questions of law subject to our independent or de novo review. [Citations.] ‘The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to determine this intent, we begin by examining the language of the statute. [Citations.] But “[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.” [Citations.] Thus, “[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.” [Citation.] Finally, we do not construe statutes in isolation, but rather read every statute “with reference to the entire scheme of the law of which it is part so that the whole may be harmonized and retain effectiveness.” ’ [Citation.]” (Babalola v. Superior Court (2011) 192 Cal.App.4th 948, 956.)

In relevant part, section 646.9, subdivision (k) provides that “[t]he sentencing court also shall consider issuing an order restraining the defendant from any contact with the victim, that may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family.”

Similar language exists in section 136.2, subdivision (i)(1), which governs protective orders. This section states “[i]n all cases in which a criminal defendant has been convicted of a crime involving domestic violence . . . , the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with the victim of the crime. The order may be valid for up to 10 years, as determined by the court. This protective order may be issued by the court regardless of whether . . . imposition of sentence is suspended and the defendant is placed on probation. It is the intent of the Legislature that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family.”

The linchpin to our analysis of both statutes is whether the term “victim” is limited solely to the individual harmed by the offender’s acts, or if it can be read more broadly to include that individual’s family. There is a split of authority on this point.

In People v. Clayburg (2012) 211 Cal.App.4th 86, 91 (Clayburg), Division Six of the Second District Court of Appeal held that the term victim in section 646.9, subdivision (k) must be broadly construed to include the family of a stalking victim. Reasoning that a reading of the statutory language limited to the named victim comes from the “ ‘dictionary school of jurisprudence’ ” and “ ‘yields “a grotesque caricature of the Legislature’s purpose” [citation],’ ” the court instead read the first sentence in context with the second (quoting Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1703 (dis. opn. of Gilbert, J.).) The court reasoned that the inclusion of the second sentence cast a “ ‘wider net’ ” than the first, and in construing both together, it is apparent the Legislature “want[ed] the judiciary to protect the child of a named stalking victim.” (Clayburg, supra, at p. 91.) In so construing the statute, the court refused to read the second sentence to relate only to the length of the restraining order. (Ibid.)

Division Four of the Second District Court of Appeal later disagreed with Division Six’s reading of section 646.9, subdivision (k).[3] In People v. Delarosarauda (2014) 227 Cal.App.4th 205, 211-212 (Delarosarauda), the court held the opposite, reasoning “[n]othing suggests the second sentence also modifies the scope of the restraining order.” The Court of Appeal instead “read the second sentence to mean what it says: the court should consider, among other factors, the ‘safety of the victim and his or her immediate family’ in determining the length of the restraining order authorized in the first sentence,” not what individuals are also covered under the order. (Ibid.)

We need not resolve this split of authority to reach a resolution here. While the Court of Appeal in Delarosarauda disagreed with the Clayburg court’s statutory interpretation, it saw the result reached in Clayburg as correct because the evidence in that case established the “defendant [there] stalked the named victim and the victim’s child, causing both to suffer emotional harm.” (Delarosarauda, supra, 227 Cal.App.4th at p. 212.) The daughter had suffered emotionally, been traumatized by the appellant’s conduct, and been the recipient of a previously issued civil restraining order that she carried on her person. (Clayburg, supra, 211 Cal.App.4th at p. 419.) “On those facts,” the court reasoned, “a protective order could have been issued covering the child under section 136.2, subdivision (i)(1), as the child was a ‘natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state . . . is being or has been perpetrated or attempted to be perpetrated.’ ” (Delarosarauda, supra, 227 Cal.App.4th at p. 212, quoting § 136.) Thus, the court held, while a no contact protective order was appropriate on the facts in Clayburg, a similar order was not appropriate when the appellant had not harmed or attempted to harm the victim’s children. (Delarosarauda, supra, at p. 212.)

Here, like the children in Clayburg, supra, 211 Cal.App.4th at p. 419, Tjogas’s children have suffered emotionally and have been traumatized by their father’s conduct. Tjogas’s eldest daughter, with whom Tjogas now wishes to have contact, personally urged the court in the underlying matter not to modify the protective order because Tjogas continues to be a threat to her family’s safety. In a letter she wrote to the trial court, she described her life with Tjogas as “utter chaos,” never knowing what to expect when she came home. Tjogas committed disturbing acts of violence against his wife in front of his children, forcing them to live in fear of him and for their own safety. When he was not physically abusing his wife, he would regularly kick her and his children out of their home, forcing them to stay with friends and neighbors as well as in hotels and garages. Even after they stopped living with him, he continued to stalk his wife and children, moving three blocks away from where they lived and showing up randomly where he believed they would be. The only recourse the family had was to move away from him entirely, which has allowed his children to begin to heal from the damage done to their family. Tjogas’s eldest daughter fears, should the protective order be removed, that supervised visits with their father will undo the progress her family has made in moving on with their lives. Just hearing his voice alone, she believes, will bring back the memories of years of emotional abuse for her and her siblings.

On this record, we see no reason that Tjogas’s wife should be treated as the sole victim; Tjogas has victimized his entire family. A separate protective order would have been justified for each of his children, and we need not wade into determining whether the children of a named victim may be included within the scope of a section 646.9, subdivision (k) protective order in the absence of evidence of harm to the children.

B. The Trial Court Did Not Abuse its Discretion

Turning now to Tjogas’s argument that the trial court’s refusal to modify the protective order was arbitrary and capricious, we are convinced the trial court acted within the bounds of the considerable discretion it possesses in setting terms of probation. (§ 1203 et seq.; People v. Lent (1975) 15 Cal.3d 481, 486.)

Tjogas first challenges the protective order as applied to his children on legal grounds, claiming that the “blanket stay-away order” under section 646.9, subdivision (k) should only apply to his wife, the named victim, while the determination of whether he should be able to see his children is better left in the hands of a family law court pursuant to Family Law Code section 3030, subdivision (a). For the reasons explained above, the protective order here was statutorily authorized for both Tjogas’s wife and children because of his emotionally traumatizing behavior directed at all of them.

Next, Tjogas claims the trial court arbitrarily and capriciously decided that his request to modify the protective order was “a continuation of his stalking-type behavior,” which, he believes, was unsupported by evidence and suggested the court was refusing to consider the merits of his request. Moreover, he believes the trial court committed an abuse of discretion by refusing to hear argument that his 15-year-old daughter was prevented from bringing a request to modify the protective order due to her age.

The record shows the trial court had before it ample evidence of Tjogas’s long-demonstrated behavior of stalking his family prior to his probation, behavior which was the basis for the protective order in the first place. The letter from his daughter explains his family’s continued fear that modifying the protective order would allow Tjogas to continue to stalk his family. Furthermore, and tellingly, while Tjogas claims he had not violated the terms of his probation since being released from county jail, this is now his third time petitioning the court to modify the terms of his probation in three years. All circumstances considered, we fail to see how the trial court’s decision exceeded the bounds of reason when presented with the aforementioned evidence. (Carbajal, supra, 50 Cal.4th at p. 1121.)

As to Tjogas’s contention that his 15-year-old daughter should have been allowed to bring a request for modification on her own motion, we do not see the trial court’s refusal to hear argument concerning this young woman’s ability to seek modification of the protective order on her own as exceeding the bounds of reason. It is well within reason to take the view, as the trial court plainly did, that if any of Tjogas’s family members wished to ask the court to modify the protective order, they could do so by approaching the court directly, thereby enabling the court to inquire fully into the basis for the request and its potential ramifications, rather than by communicating their views to Tjogas. If such a motion is made, the trial court may resolve the motion itself or, as Tjogas argues, may refer the matter to family court to decide under the terms of Family Code, section 3030, subdivision (a), which denies unsupervised visitation following a domestic violence conviction except where the court finds “no significant risk to the child and states its reasons in writing or on the record.”

Finally, Tjogas cites and relies upon People v. Smith (2007) 152 Cal.App.4th 1245, which involved an overbreadth challenge to a ban on a probationer’s ability to leave his county of residence. At stake was the constitutional right to travel intrastate. To overcome a constitutional overbreadth challenge, probation conditions will be upheld only if narrowly drawn to serve the interests of public safety and rehabilitation and if they are “ ‘specifically tailored to the individual probationer.’ ” (Id. at p. 1249, quoting In re Babak S. (1993) 18 Cal.App.4th 1077, 1084.) No constitutional right is at stake here. We have a detailed statutory juvenile dependency scheme in California governing family reunification following removal of a child from parental custody. Certainly where, as here, the separation of a child from her parent is validly ordered as a condition of criminal probation, there is no plausible basis for Tjogas to argue that he may escape the strictures of probation by claiming a constitutional right to reunify with his children. Thus, Smith is inapposite.

IV. DISPOSITION

Affirmed.

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Streeter, Acting P.J.

We concur:

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Reardon, J.

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Schulman, J.*

A148911/People v. Tjogas