Filed 1/2/20 P. v. Robertson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH ROBERTSON,

Defendant and Appellant.

C084171

(Super. Ct. No. 16FE016322)

Defendant Joseph Robertson struck and threatened several police officers during a confrontation in his yard. A jury found him guilty of assault, two counts of using threats and violence to prevent officers from performing their duties with the personal use of a deadly weapon and attempting to make a criminal threat with the personal use of a deadly weapon.

On appeal defendant contends: (1) the trial court erred in failing to instruct, sua sponte, on the community caretaking exception to warrantless entries; (2) the trial court erred in imposing a probation condition that required participation in a treatment program that addresses criminal association; and (3) the minute order must be corrected to show the assault conviction is a misdemeanor and show the proper number of presentence credits.

We agree the minute order must be corrected. We otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A police dispatcher called for response to defendant’s home following multiple calls reporting he lived with his elderly mother and was in the back yard of the residence, throwing items into neighbors’ yards, and yelling that he was going to kill someone. Detective Deborah Bayer-Evans and two other officers responded. Before they responded, they received another radio call that they should go to the house immediately due to additional 911 calls.

The uniformed officers approached defendant’s yard together and could hear “thrashing around” and a man yelling angrily. They did not know whether there were victims of a crime in need of aid. One officer cut a zip tie holding the gate to the backyard closed; when they opened the gate, Detective Bayer-Evans observed defendant standing near her and holding a dustpan and broken broom handle with a sharp point. When the officers opened the gate, defendant took an aggressive stance and raised and flipped the broom handle, with the sharp end pointing down. The officers instructed him to drop the broom, and he threatened, “Get off the property or I put you down.”

Defendant then moved toward the officers and went to an open garage door. Detective Bayer-Evans feared he might retrieve another weapon from the garage and grabbed him by the shirt to pull him back from the threshold. Defendant struck her with the sharp end of the broom handle several times, attempted to grab her gun from its holster, grabbed gardening shears, kicked the other officers, threatened to kill them, and struggled as they tried to handcuff him.

Following a trial, a jury found defendant guilty of one count of simple assault (Pen. Code, § 240); two counts of using threats and violence to prevent an officer from performing his or her duty as an executive officer (§ 69), with the personal use of a deadly weapon (§ 12022, subd. (b)(1)); and one count of attempting to make a criminal threat (§§ 664/422), with the personal use of a deadly weapon (§ 12022, subd. (b)(1)). The trial court granted defendant formal probation for five years with various conditions, including that he serve 364 days in jail and participate in a criminal associates intervention program as well as other programs.

DISCUSSION

I

Sua Sponte Instruction

Defendant contends the trial court erred in failing to adequately instruct the jury on whether the officers’ actions were lawful because the section 69 convictions required the jury to find the officers were lawfully performing their duties. He asserts that because, during the motion to suppress evidence, the prosecutor argued the police entered his yard for the purpose of a community care check, the court should have sua sponte instructed the jury on the community caretaking exception to warrantless entries rather than the “confusing and inapplicable” instruction on the exigent circumstances exception. Defendant does not rely on any evidence presented at trial showing the officers entered the yard for the purpose of community caretaking. Instead, he relies exclusively on the prosecutor’s argument on the motion to suppress evidence.

“A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial.” (People v. Ervin (2000) 22 Cal.4th 48, 90.) The court must instruct upon every theory of the case supported by substantial evidence, including any defenses that are not inconsistent with the defendant’s theory of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) “ ‘Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ [Citation.]” (People v. Guiuan (1998) 18 Cal.4th 558, 570 (Guiuan).)

Defendant relies on People v. Ray (1999) 21 Cal.4th 464 at page 471, where the Supreme Court contrasted the criminal function of the exigent circumstances exception with the community caretaking exception and held that in the latter, officers’ actions are limited to doing no more than reasonably necessary to determine if someone is in need of assistance and to provide assistance. In distinguishing the community caretaking exception, the court reasoned: “ ‘[T]he defining characteristic of community caretaking functions is that they are totally unrelated to the criminal investigation duties of the police.’ [Citations.] Upon entering a dwelling, officers view the occupant as a potential victim, not as a potential suspect.” (Ray, at p. 471.) Subsequent to briefing in this case, the Supreme Court revisited its holding and rejected the community caretaking exception. (People v. Ovieda (2019) 7 Cal.5th 1034, 1044.) After noting the lead opinion in Ray did not garner a majority and is thus nonbinding, the court held that “no such [community caretaking] exception exists and that the Ray lead opinion was wrong to create one.” (Id. at pp. 1044-1045.) Under Ovieda, defendant’s argument that the court should have instructed the jury on the community caretaking exception must fail.

Further, we conclude the trial court properly instructed the jury based on the evidence developed at trial. Here, the jury was instructed, “A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties.” The jury was further instructed, “the term exigent circumstances describes an emergency situation that requires swift action to prevent (1) imminent danger to life or serious damage to property, or (2) the imminent escape of a suspect of destruction of evidence.” This instruction was consistent with the evidence; the officers viewed defendant primarily as a potential suspect rather than a potential victim when they approached the backyard based on the information they had at that time. The dispatcher informed the officers there were multiple calls from neighbors about defendant throwing items into other yards and yelling that he was going to kill someone, and they were concerned about potential victims of a crime. Indeed, defense counsel responded to this evidence in closing argument, contending the officers did not have sufficient exigent circumstances to enter defendant’s yard. While defendant contends the exigent circumstances instruction was “confusing and inapplicable,” it was a correct statement of the law and responsive to both defendant’s defense and the evidence developed at trial that the officers acted on a reasonable suspicion of imminent danger to life. (See Guiuan, supra, 18 Cal.4th at p. 570.)

Accordingly, defendant has not demonstrated error.

II

Criminal-associates Program Probation Condition

Defendant contends the trial court erred in requiring his participation in a program “addressing criminal associates” as a condition of probation because the condition was not supported by the evidence. We disagree.

In this case, the trial court required defendant to participate in the following programs as a condition of probation: drug and alcohol rehabilitation program; drug/alcohol intervention program; intervention program addressing criminal thinking; intervention program addressing criminal associates; anger management program; and a mental health counseling and treatment intervention program.

“A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .’ [Citation.]” (People v. Lent (1975) 15 Cal.3d 481, 486, superseded on another ground by statute as stated by People v. Wheeler (1992) 4 Cal.4th 284, 290-295.) All three criteria must be satisfied to invalidate a probation condition. (People v. Olguin (2008) 45 Cal.4th 375, 379.)

The condition that defendant participate in a treatment program addressing criminal associates may not directly relate to the crimes of assault or using threats and violence to prevent officers from performing their duties, and it is certainly not in itself criminal conduct, but it is reasonably related to defendant’s future criminality. Courts have upheld the probation requirement that a probationer avoid any contact with persons of known criminal record because it is reasonably related to preventing future criminality under the Lent test. (People v. Lent, supra, 15 Cal.3d 481; see, e.g., People v. Robinson (1988) 199 Cal.App.3d 816, 818 [“By prohibiting defendant from associating with persons having a known criminal record, the court was placing a control over defendant which would assist her in successfully completing probation”].) At sentencing, the prosecutor commented that the police report included information there was an investigation regarding drug activities at the house, the trial court found a logical nexus there might be some benefit to defendant, explaining some of the services that would come under this program can address some of the other issues, and defense counsel agreed any services defendant can get to help him be a better person is “something we should work on.” Based on the record, we conclude the trial court did not abuse its discretion when it imposed a criminal associates treatment program probation condition.

III

Corrections to Minute Order

Defendant contends, and the Attorney General concedes, the minute order must be corrected to reflect that the assault conviction in count one was a misdemeanor and the court calculated defendant’s total prejudgment custody credits to be 288 days. We accept the Attorney General’s concessions.

Where there is a discrepancy between the oral pronouncement of judgment and the minute order, the former controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) When the trial court sentenced defendant on the lesser included offense of simple assault on count one, it recognized the conviction was for a misdemeanor; however, the minute order reflects that the conviction on count one was a felony. Additionally, the court calculated defendant’s total prejudgment custody credits to be 288 days, rather than 244 days as stated in the minute order. Both of these clerical errors in the minute order must be corrected.

DISPOSITION

The judgment is affirmed. The trial court is directed to correct the minute order to reflect that the assault conviction in count one was a misdemeanor and defendant has 288 days in total prejudgment custody credits.

/s/

HOCH, J.

We concur:

/s/

RAYE, P. J.

/s/

KRAUSE, J.