P. v. Lackyard
Filed 9/11/12 P. v. Lackyard CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
DAVID GRAY LACKYARD,
Defendant
and Appellant.
E053393
(Super.Ct.No.
BAF006915)
OPINION
APPEAL
from the Superior Court
of
County. John D. Molloy,
Judge. Affirmed with directions.
Patrick
E. DuNah, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
challenges Condition No. 15 of his probation—that he “reside at a residence
approved by the probation officer and not move without prior consent of the
probation officerâ€â€”on constitutional grounds.
The trial court imposed this condition after granting defendant
probation, in return for a guilty plea, and instead of imposing a three-year
prison term, for entering the home of his ex-girlfriend, beating her bloody,
snatching a necklace from her neck, and later violating the terms of an
emergency restraining order. As discussed below, we conclude that the
challenged probation condition should be changed.
and Procedure
name="_ftnref1" title="">[1]
On
the evening of March 10, 2009,
defendant entered the victim’s residence through the front door without her
permission as she sat in her backyard.
the back yard through a sliding glass door.
Defendant told the victim that she was going to sign papers from the
department of motor vehicles transferring her car back over to him. The victim agreed that she would do so, and
they both entered the residence. The
victim became afraid because defendant was agitated and had previously beaten
her up when he was in that emotional state.
When defendant placed the paperwork on the kitchen counter and searched
for a pen, the victim ran toward the front door of the residence in an attempt
to leave. However, defendant grabbed her
by the shirt and threw her against a wall.
After the victim fell to the floor on her face, defendant kicked her
about 15 times. As he did so, defendant
yelled profanities and told the victim that she was going to sign the
paperwork. The victim was covered in
blood when defendant allowed her to get up.
He told her to wash off the blood at the kitchen sink so the paperwork
would not become bloodstained. Defendant
told the victim that he would kill her if she did not sign the paperwork. She signed the paperwork. As defendant was leaving, he ripped a diamond
and silver necklace from her neck and told her he would come back the next day
for the pink slip, which the victim needed to obtain from a third person. Defendant said he would kill the victim if
she did not get the pink slip. He also
said he would kill her if she called the police.
Responding
police officers assisted the victim in obtaining an emergency restraining
order. The victim was treated at a local
hospital for her injuries. About two
weeks later, while the restraining order was still in place, defendant
contacted the victim by text message.
On
February 10, 2010, the People charged defendant in a felony complaint with
residential burglary (Pen. Code, § 459);
corporal injury upon a spouse (§ 273.5, subd. (a)); committing robbery in an
inhabited dwelling house (§§ 211, 212.5); false imprisonment (§ 236); and
disobeying a temporary restraining order (§ 166, subd. (a)(4)).
On
December 28, 2010, defendant pled guilty to each of the charges, except
residential burglary.
On
April 1, 2011, the superior court reduced the terrorist threats charge to a
misdemeanor. The court suspended
imposition of sentence and placed defendant on probation, which included 90
days of local custody plus 90 days of electronic confinement, and the residence
term that is the subject of this appeal.
Defendant did not object to the terms of probation.
Defendant
initially filed a notice of appeal requesting a certificate of probable cause
on the ground that he should have been allowed to serve his sentence on
weekends. This request was denied. Defendant subsequently filed a
or other matters occurring after the plea.
Defendant
argues the residence approval condition of his probation should be struck
because it is unconstitutionally vague, unconstitutionally overbroad, and
violates his constitutional rights to
travel and association.
The People respond
that defendant forfeited this issue on appeal by failing to object in the court
below and, in the alternative, argue that defendant’s contention lacks merit.
who fails to object to a probation condition at the time of sentencing waives
the right to argue on appeal that the condition regulating noncriminal conduct
is invalid because it is not reasonably related to either the present offense
or future criminality. (
announced in Welch applies even when
a defendant contends a probation condition is “constitutionally flawed.†(People
v. Gardineer (2000) 79 Cal.App.4th 148, 151.) But Welch’s
waiver doctrine is subject to an exception for sentences that are unauthorized
or in excess of the trial court’s jurisdiction.
(Welch, at p. 235.) The exception “involve[s] pure questions of
law that can be resolved without reference to the particular sentencing record
developed in the trial court.
[Citations.]†(
In other words, an exception to the forfeiture rule may be found when
the appeal presents an important issue of law and the error is easily
remediable on appeal by modification of the probation condition. (In re
S.B. (2004) 32 Cal.4th 1287, 1293-1294, superseded by statute on another
point as stated in In re S.J. (2008)
167 Cal.App.4th 953.)
In
the Supreme Court explained this exception as follows: “Because these sentences ‘could not lawfully
be imposed under any circumstance in the particular case’ [citation], they are
reviewable ‘regardless of whether an objection or argument was raised in the
trial and/or reviewing court.’
[Citation.] We deemed appellate
intervention appropriate in these cases because the errors presented ‘pure questions
of law’ [citation], and were ‘ “clear and correctable†independent of any
factual issues presented by the record at sentencing.’ [Citation.]
In other words, obvious legal errors at sentencing that are correctable
without referring to factual findings in the record or remanding for further
findings are not waivable.†(
887 [“An obvious legal error at sentencing that is ‘correctable without
referring to factual findings in the record or remanding for further findings’
is not subject to forfeitureâ€].)
Here, contrary to the People’s
claim, we find defendant’s claim of error cognizable on appeal, as it presents
a “pure question[] of law†turning on undisputed facts. (Welch,
can easily be remedied on appeal by modification of the condition. (See, e.g., In re Sheena K., supra,
40 Cal.4th at p. 888.) Therefore,
his constitutional challenge to probation condition No. 15 has not been
forfeited.
Probation
conditions impinging on “constitutional rights ‘must be narrowly drawn’ â€
so that they are reasonably related to the state’s interest in reformation and
rehabilitation. (People v. Lopez (1998) 66 Cal.App.4th 615, 627.) In People
v. Bauer (1989) 211 Cal.App.3d 937, the reviewing court struck a similar
residence approval probation condition, stating: “The condition is all the more disturbing
because it impinges on constitutional entitlements—the right to travel and
freedom of association. Rather than
being narrowly tailored to interfere as little as possible with these important
rights, the restriction is extremely broad.
The condition gives the probation officer the discretionary power, for
example, to forbid appellant from living with or near his parents—that is, the
power to banish him. It has frequently
been held that a sentencing court does not have this power. [Citations.]â€
(Id. at pp. 944-945.)
In view of the
foregoing, we conclude that the challenged condition should be modified.
officer being informed if defendant’s residence has changed. We have the power to modify a probation
condition on appeal. (See
We believe that the condition should be modified to read as
follows: “Defendant shall keep the probation
officer informed of his place of residence and give written notice to the
probation officer twenty-four (24) hours prior to a change in residence.â€
The
trial court is ordered to modify probation condition No. 15 to read: “Keep the probation officer informed of his
place of residence and give written notice to the probation officer twenty-four
(24) hours prior to a change in residence.â€
In all other respects, the judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
CODRINGTON
J.
instead of going to trial, the facts of his crimes are taken from the
preliminary hearing testimony and the probation report.
locked.
