P. v. Kong

Filed 12/30/08 P. v. Kong CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Arlene Kong pleaded no contest to grand theft (Pen. Code, 484, 487, subd. (a)) and falsely reporting a crime (Pen. Code, 148.5, subd. (a)).[1] The trial court suspended imposition of sentence and placed defendant on probation for three years. On appeal, defendant contends that the trial court erred in imposing a probation condition that she take medication. We modify the order, and as modified, the order is affirmed.

I. Factual and Procedural Background

In September or October 2003, Briyesh Chambayil rented a room in defendants home. In January 2004, they began dating. In April 2004, Chambayil moved out of defendants home. However, they continued to have an abusive on and off relationship until March 2005. Chambayil described their relationship as abusive, because defendant threatened him. She accused him of rape, kidnapping, and other charges for which he was arrested twice. However, the charges were dismissed. Chambayil felt that he was always under a constant threat and pressure of being in the relationship, and that he was forced to be in the relationship. After the dismissal of a false rape charge in June 2005, Chambayil left San Francisco. He then moved to an apartment in Sunnyvale that he shared with Raj Halbhavi, Rohit Dhingri, and Vinet Menghaney. This second floor apartment was located at 1055 East Evelyn Avenue in Sunnyvale.

At approximately 5:00 a.m. on September 19, 2005, cab driver Richard Rebol picked up defendant at the Travel Lodge Motel in Palo Alto. Rebol then drove defendant to an apartment complex in the 1000 block of East Evelyn Avenue in Sunnyvale. They arrived at the apartment complex at approximately 5:30 a.m. Defendant had a shopping bag with her in the cab. At approximately 6:30 a.m., Rebol received a radio dispatch to pick up defendant at the apartment complex on East Evelyn Avenue. Her shopping bag appeared heavier than before.

On September 19, 2005, Chambayil left for work around 5:00 a.m. At that time, his laptop and digital camera were in his living room. At approximately 6:30 a.m., his roommates called him at work and told him that his ex-girlfriend was in the apartment. When Chambayil returned, he discovered that his $1,500 laptop and $350 camera were missing. His roommates possessions, including a television, stereo, and laptops, were not taken.

On September 19, 2005, Raj Halbhavi was awakened by his roommates voices. His roommates told him that someone had left a bag outside. They then heard a knock on the door less than a minute later. When Halbhavi answered the door, he saw a woman, who looked like defendant, at the bottom of the stairs. She asked if Briyesh was there. Halbhavi said no, and the woman made an Indian gesture that meant thank you. There was some lingerie in a shopping bag outside the door.

A few days later, Rebol picked up defendant at the Travel Lodge Motel and drove her to Stanford Medical Center. Rebol did not see any bruises, scars, or blood, but he knew she needed medical attention based on her demeanor, including her voice and language. She told him that she had a fight with her boyfriend.

On September, 22, 2005, Detective April Wagner spoke with defendant at the Stanford emergency room. Defendant told Detective Wagner that she had been assaulted by her ex-husband Briyesh Chambayil.[2] Defendant stated that she was waiting to meet a friend for breakfast at a caf when Chambayil drove up, exited his car, put his hand around her throat, and shoved her to the ground. He then put his hand over her nose and mouth so that she could not breathe, punched and kicked her, and removed her underwear. He did not sexually assault her, but he knocked out one of her teeth.

Defendant was with Detective Wagner in the emergency room for about an hour. Defendant later described an incident that had occurred three days earlier. According to defendant, at approximately 6:00 a.m. on September 19, 2005, defendant was waiting for a friend to take her to the airport when Chambayil drove up, dragged her into his car, and tried to force her to orally copulate him while he was driving his car. Eventually he stopped the car, dragged her out of the drivers side, punched or kicked her, and left her.

Detective Wagner noticed that defendants injuries were not consistent with the type of violence that she had described. Defendant did not have any bruises in the areas that she claimed had been kicked and hit. There was no swelling or bleeding where her tooth was missing. After the police spent about twelve hours investigating defendants claims, she admitted that she had not been assaulted on either September 19 or September 22. According to defendant, she lied to the police because Chambayil had hurt her in the past and escaped prosecution.

On July 6, 2006, the District Attorney of Santa Clara County filed an information that charged defendant with second degree burglary ( 459-460, subd. (a)), grand theft ( 484, 487, subd. (a)), and falsely reporting a crime ( 148.5, subd. (a).)

On February 15, 2007, criminal proceedings were suspended pursuant to section 1368. Robert Perez, a clinical psychologist, then evaluated defendant and concluded that she was incompetent to stand trial, because one or more psychiatric diagnoses [had] impaired her decision making to an extent preventing her from rationally addressing her current legal situation. Perez also noted that defendant had an extremely intense focus on [her relationship with the victim], verging on obsessional. On April 4, 2007, the trial court found that defendant was not competent to stand trial.

On April 23, 2007, Patricia Dolan, a licensed marriage and family therapist and forensic health specialist, evaluated defendant in order to make a placement recommendation. Dolan expressed concern that defendant did not believe in taking medications, and that she would not be willing to take them if prescribed. [Defendant] was not able to say what choice she would make when asked what she would do if she were ordered to take medications. Dolan believed that defendant was suffering from a thought disorder. She also noted that defendant continued to be focused on her victim in an obsessed manner, which called into doubt her ability to maintain safety in the community. Dolan recommended that defendant be given a thorough psychiatric assessment and subsequently placed on appropriate psychiatric medications as necessary.

On May 3, 2007, the trial court ordered defendant committed to the State Department of Mental Health for placement in a locked psychiatric facility. On July 18, 2007, Dr. Merle Madera prepared a report in which she recommended that defendant be returned to court as competent to stand trial. Dr. Madera diagnosed defendant with post traumatic stress disorder, adjustment disorder with mixed disturbances of emotions and conduct, and personality disorder. According to Dr. Madera, defendant had not obsessed on her victim since being committed to Patton State Hospital. Dr. Madera also noted that defendant was not on psychotropic medications. She has refused and has not been prescribed any medication. The court has not required medications for her. However, Dr. Madera recommended that defendant continue to take the medication [] being prescribed at the time of discharge from the hospital for continuity of care . . . .

On September 26, 2007, criminal proceedings were reinstated after defendant was found restored to competency. On October 5, 2007, defendant pleaded no contest to grand theft and falsely reporting a crime. The trial court then referred the matter to the probation office for computation of credits and victim notification. Defendant waived a full report. The probation officer spoke with Chambayil, who stated that as a result of the defendants actions he has been falsely arrested on three separate occasions and has had to move at least five times. Each time he moves, the defendant finds out where he lives and contacts him. Each time she gets out of jail she contacts him leaving hundreds of messages on his work telephone number. Her actions have caused him countless problems with immigration, specifically when he is attempting to travel out of the country. He is extremely fearful of his safety as he knows the defendant will find him once she is released from custody. The probation officer recommended that defendant be placed on probation, and that she enter and complete a psychological treatment program as well as take all prescribed medication.

On October 30, 2007, the trial court suspended imposition of sentence and placed defendant on probation for three years. The trial court imposed probation conditions, among others, that she enter and complete a psychological treatment program, as directed by probation and that she take all prescribed medication, as directed by your physician. Defendant did not object to any of the probation conditions at the sentencing hearing.

II. Discussion

Defendant contends that the trial court abused its discretion in imposing a probation condition that she take medication, because it was not reasonably related to the crime of which she was convicted or to future criminality, and there was no evidence that she needed any medication. She also contends that the condition infringes on her rights to privacy and due process, and was unconstitutionally overbroad and vague.

When a defendant has failed to object to a probation condition on reasonableness grounds, he or she has forfeited the issue on appeal. (People v. Welch (1993) 5 Cal.4th 228, 234-235 (Welch).) A timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case. The parties must, of course, be given a reasonable opportunity to present any relevant argument and evidence. A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis. (Welch, at p. 235.)

Here, when defendant failed to object to the probation condition that she take medication, the parties did not develop the record regarding defendants medical issues. The record clearly establishes that defendant suffered from mental illness. However, the role that medication did or could play in her treatment is unknown. For example, the record on appeal is unclear as to whether defendant was taking medication at the time of discharge from Patton State Hospital. Moreover, given defendants prior refusal to take medications, one could even reasonably infer that her decision to accept the terms of probation at sentencing indicated that she was now willing to do so. Since defendant did not challenge her probation condition at the sentencing hearing, there was no opportunity to present evidence and argument on the reasonableness of the probation condition or that medication was medically necessary.[3] Thus, under Welch, defendant forfeited these two issues on appeal.[4]

We next consider defendants claim that the probation condition is vague and overbroad on its face. In In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.), the California Supreme Court held that a defendants challenge to a probation condition as facially vague and overbroad in that case was not subject to the forfeiture rule set forth in Welch. (Sheena K., at pp. 888-889.) In Sheena K., the probation condition prohibited association with anyone disapproved of by probation. (Sheena K., at p. 878.) The court held that this condition was both overbroad and vague, and could be easily modified to direct the defendant not to associate with anyone known to be disapproved of by the probation officer or other persons having authority over the probationer. (Sheena K., at p. 892.) The court cautioned, however, that its holding does not apply in every case in which a probation condition is challenged on a constitutional ground. As stated by the court in Justin S., we do not conclude that all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court. (People v. Welch, supra, 5 Cal.4th at p. 235.) In those circumstances, [t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court. (Id. at p. 236.) (Justin S., supra, 93 Cal.App.4th at p. 815, fn. 2.) (Sheena K., at p. 889.) Thus, to the extent that defendants contentions do not involve reference to the record on appeal, they have not been waived.

Courts have upheld probation conditions even though they restrict a probationers exercise of constitutional rights so long as they are narrowly drawn to serve the important interests of public safety and rehabilitation. (People v. Keller (1978) 76 Cal.App.3d 827, 839, overruled on other grounds in Welch, supra, 5 Cal.4th at p. 237) and are tailored to the individual probationer. (People v. Birkett (1999) 21 Cal.4th 226, 234-236.) In examining whether a probation condition is void for vagueness, courts have considered whether the condition is sufficiently precise for the probationer to know what is required of him [or her] . . . . (Sheena K., supra, 40 Cal.4th at p. 890, quoting People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.) [T]he underpinning of a vagueness challenge is the due process concept of fair warning. (Sheena K., at p. 890.) The overbreadth doctrine focuses on other, though related, concerns. Under this doctrine, 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. [Citations.] (In re Englebrecht (1998) 67 Cal.App.4th 486, 497 (Englebrecht).) A laws overbreadth represents the failure of draftsmen to focus narrowly on tangible harms sought to be avoided, with the result that in some applications the law burdens activity which does not raise a sufficiently high probability of harm to governmental interests to justify the interference. [Citation.] (Englebrecht, at p. 497.) Thus, probation conditions must be sufficiently precise and narrowly tailored to avoid unconstitutional overbreadth and vagueness.

Defendant claims that the condition is vague, because it does not specify which medication she must take and at whose direction, and overbroad, because it requires her to take all prescribed medication, prescribed by any treating physician, for any identified problem. We agree with defendant that the probation condition is vague and overbroad. Here, defendants suffers from mental illness. Due to her obsession with her victim and her previous commitment to a state mental hospital, the probation officer recommended psychiatric treatment and medication. There is nothing in the record to indicate that medication for any other purpose is necessary to serve public safety or rehabilitate defendant. Thus, the probation condition, as presently written, is neither sufficiently precise in notifying defendant as to what conduct is required of her nor narrowly tailored to address the issue of her mental illness as it impacts on others. The appropriate remedy is to modify the condition and, as modified, affirm the order. (In re Justin S. (2001) 93 Cal.App.4th 811, 816.)

III. Disposition

The probation condition requiring that defendant take all prescribed medication, as directed by your physician is hereby modified to require that defendant take all prescribed medication for the treatment of your mental illness, as directed by your physician. As modified, the order is affirmed.

_______________________________

Mihara, Acting P.J.

WE CONCUR:

_____________________________

McAdams, J.

_____________________________

Duffy, J.

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[1] All further statutory references are to the Penal Code.

[2] Defendant and Chambayil were never married.

[3] Defendants claim that there was no medical evidence to support the probation condition has no merit. The record establishes that defendant suffers from mental illness and two medical professionals recommended that she be placed on psychiatric medication.

[4] Defendant argues that trial counsel was ineffective for failing to object to the probation condition. In order to establish ineffective assistance of counsel, a defendant must show: (1) trial counsels performance was deficient; and (2) there is a reasonable probability that the result of the proceeding would have been more favorable to him or her absent counsels unprofessional errors. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694; People v. Mitcham (1992) 1 Cal.4th 1027, 1058.) Here, trial counsel could have had a tactical reason for failing to object, that is, defendant may have agreed to take medication for her mental illness. Accordingly, defendant has not established ineffective assistance of counsel.