Filed 1/17/20 P. v. Scroggins CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

SEAN MICHAEL SCROGGINS,

Defendant and Appellant.

D074051, D074613

(Super. Ct. No. SCD275049)

APPEALS from orders of the Superior Court of San Diego County, Laura W. Halgren, Polly H. Shamoon, Judges. Affirmed as modified.

Cherise M. Bacalski, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION

Sean Michael Scroggins pled guilty to one count of assault with force likely to produce great bodily injury (Pen. Code § 245, subd. (a)(4)). The trial court suspended imposition of sentence and placed Scroggins on three years formal probation, subject to various conditions, including: “[c]omply with a curfew if so directed by the [probation officer],” and “no marijuana unless approved by the Courts.” The trial court’s probation order also required that Scroggins submit “computers, . . . recordable media[, and] all electronics to search at any time with or without a warrant, and with or without reasonable cause, when required by [probation officer] or law enforcement officer,” and further required that he obtain a probation officer’s consent before leaving San Diego County. By way of a separate order, the trial court directed Scroggins to pay victim restitution (§ 1202.4, subd. (f)) in the amount of $13,422.76.

Scroggins appeals from the probation order and the restitution order. We granted Scroggins’s motion to consolidate the appeals. With respect to the victim restitution order, Scroggins claims that the trial court abused its discretion in setting the amount of restitution. With respect to the probation order, Scroggins contends that this court should strike the curfew and marijuana conditions under People v. Lent (1975) 15 Cal.3d 481 (Lent). Scroggins also maintains that the probation condition requiring that he submit to a warrantless search of all electronic devices is facially unconstitutional and unconstitutional as applied to him. Finally, Scroggins contends that the probation condition requiring that he obtain permission from his probation officer prior to leaving the county is unconstitutional as applied to him.

The People maintain that the trial court did not abuse its discretion in awarding victim restitution in the amount of $13,422.76. With respect to the probation order, the People concede that the trial court erred in imposing the curfew and marijuana conditions and request that we strike those conditions. The People argue that we should otherwise affirm the probation order.

We affirm the restitution order. With respect to the probation order, we accept the People’s concession and strike the curfew and marijuana conditions. We affirm the probation order in all other respects.

II.

FACTUAL BACKGROUND

In his March 2018 guilty plea, Scroggins admitted that he “assaulted another by means likely to cause great bodily injury.”

III.

DISCUSSION

A. The trial court did not abuse its discretion in awarding victim restitution in the amount of $13,422.76

Scroggins claims that the trial court abused its discretion in setting the amount of victim restitution.

1. Governing law and standard of review

Section 1202.4 provides in relevant part:

“(f) . . . [I]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution.

“[¶]. . . [¶]

“(3) To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct . . . .”

In People v. Millard (2009) 175 Cal.App.4th 7 (Millard), this court outlined the following law governing a trial court’s issuance of a victim restitution order and our review of such an order:

“At a victim restitution hearing, a prima facie case for restitution is made by the People based in part on a victim’s testimony on, or other claim or statement of, the amount of his or her economic loss. [Citation.] ‘Once the victim has [i.e., the People have] made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim. [Citations.]’ [Citation.]

” ‘The standard of review of a restitution order is abuse of discretion. “A victim’s restitution right is to be broadly and liberally construed.” [Citation.] ” ‘Where there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.’ ” [Citations.]’ ” (Id. at p. 26.)

The Millard court concluded that section 1202.4, subdivision (f)(3) should be “interpreted as requiring a criminally negligent defendant to reimburse a victim only to the extent his or her criminal conduct caused the victim’s economic losses, thereby implicitly allowing the application of the doctrine of comparative negligence to preclude restitution to the extent the victim’s own negligence was a cause of his or her injuries.” (Millard, supra, 175 Cal.App.4th at p. 39.)

2. Factual and procedural background

In August 2018, Scroggins filed a brief addressing victim restitution. In his brief, Scroggins described the facts giving rise to the victim’s claim for restitution as follows:

“Mr. Scroggins went to his ex-girlfriend’s house to pick up his clothes and belongings. While there[,] he encountered his ex-wife’s new boyfriend. Harsh words were exchanged by both parties. Both parties claimed the other was the initial aggressor. Mr. Scroggins retrieved a baseball bat from his car and swung it at the victim. Both Mr. Scroggins, and an independent witness, claim that the baseball bat did not connect to the body of the [v]ictim. The [v]ictim claims it did connect, but was a glancing blow. Thereafter[,] the victim took Mr. Scroggins to the ground with a tackle and held Mr. Scroggins down. While on top of Mr. Scroggins, the victim punched Mr. Scroggins in the head several times. The punches left an indentation the shape of the [v]ictim’s ring in Mr. Scroggins’s head. As a result of the beating the [v]ictim doled out to Mr. Scroggins, the [v]ictim’s hand was injured. ·He now seeks restitution through the District Attorney.”

The People filed a brief in support of their request for victim restitution. In describing the facts of the underlying offense, the People stated that Scroggins had swung a baseball bat at the victim’s head and that the victim “blocked the bat with his left forearm and punched [Scroggins] in the head.” The People explained that the victim fractured his hand while punching Scroggins and that the fracture required surgery. The People noted that, pursuant to section 1202.4, a victim may recover restitution to cover economic losses caused by a defendant’s conduct, including medical expenses and lost wages.

Together with their brief, the People lodged the victim’s medical bills and a restitution request form signed by the victim. On the form, the victim indicated that he was seeking a total of $13,422.76 in restitution, which included $6,979.76 in medical bills and $6,443 in lost wages.

The trial court held a restitution hearing. At the hearing, defense counsel argued that the victim and Scroggins had engaged in “mutual combat,” and that the victim’s injuries were not caused by Scroggins’s conduct but rather, from the victim “punching . . . [Scroggins] in the back of the head.” Defense counsel also argued that while case law concerning “criminal negligence [was not] directly on point,” when considered in connection with case law pertaining to “mutual combat and with causation,” such case law supported the notion that “the victim made a choice to engage in a fight.” Defense counsel added that he thought that there was no “evidence of self-defense [on the part of the victim] in this case.”

The prosecutor countered that there was no evidence indicating that Scroggins and the victim had engaged in “mutual combat.” In addition, the prosecutor maintained that the concept of “criminal negligence” was inapplicable in this case since “[w]e do not attribute fault to a victim who . . . has been assaulted and responds to that assault.” Rather, the prosecutor argued that the victim injured himself while engaging in self-defense.

The trial court found that Scroggins had swung a baseball bat at the victim, and that, under these circumstances, “the logical thing that someone is going to do is disable the assailant.” The trial court reasoned further:

“And by tackling him and being on the ground with him, that’s what he is entitled to do.

“Mr. Scroggins is a large man. He’s six-foot-one, 159 pounds,[ ] according to the probation report, probably taken off his driver’s license, but — so he’s not a small man. And the son[ ] says they were grappling, which suggests to me he wasn’t just laying [sic] there doing nothing. And the victim would not have necessarily any idea of where the bat is or whether it’s in easy reach. There’s no evidence he knows the mom eventually got it and got it to a place of safety. He’s trying to defend himself, and I think he is entitled to disable the person, not just sit on him. Just sitting on him may not have accomplished the goal. And I think it is an act of self-defense, certainly established by preponderance of the evidence, that he was entitled to protect himself by hitting Mr. Scroggins, and the result of that was the broken hand.”

The court ruled that the victim was entitled to recover $13,422.76 in restitution and that the court would retain jurisdiction for any future claims.

3. Application

Scroggins offers several arguments in support of his claim that the trial court abused its discretion in setting the amount of victim restitution. None is persuasive. First, Scroggins claims that the court should have awarded a lesser amount of victim restitution because the victim and Scroggins were engaged in “mutual combat.” As Scroggins acknowledges, mutual combat requires an express or implied agreement to fight. (Citing People v. Ross (2007) 155 Cal.App.4th 1033, 1046–1047.) In this case, the trial court could have reasonably found that there was no such agreement to fight, and that instead, the physical violence began when Scroggins swung a baseball bat at the victim’s head.

Scroggins also argues that the victim’s injury was the result of the victim’s “own comparative negligence.” (See Millard, supra, 175 Cal.App.4th at p. 13 [concluding that the doctrine of comparative negligence may be applied with respect to restitution orders pertaining to a “criminally negligent defendant”].) To begin with, there is no evidence that Scroggins was merely negligent in attacking the victim. Rather, he committed an intentional assault with force likely to produce great bodily injury. In addition, there is no evidence to support the contention that the trial court abused its discretion in declining to find that the victim acted negligently in responding to Scroggins’s attack with a baseball bat by punching Scroggins.

Finally, Scroggins argues that the trial court erred in finding that the victim was acting in self-defense at the time he punched Scroggins. In support of this contention, Scroggins notes that the victim was “sitting on top of . . . Scroggins,” when he punched Scroggins. The trial court could have reasonably found that, despite the fact that the victim was on top of Scroggins when he punched Scroggins, the victim was acting in self-defense. As the trial court noted, the evidence suggested that, at the time the victim punched Scroggins, events were rapidly unfolding, the fight was ongoing, and the victim could have reasonably feared that Scroggins would continue to attack him unless the victim punched him.

Accordingly, we conclude that the trial court did not abuse its discretion in awarding victim restitution in the amount of $13,422.76.

B. The electronics search condition is facially constitutional; Scroggins forfeited his claim that the electronics search condition is unconstitutional as applied to him

Scroggins claims that this court “should strike [the electronics search condition] . . . because it is facially overbroad or because it is overbroad as applied to [him].” Scroggins contends that he objected to this condition in the trial court under Lent, but acknowledges that he did not raise the constitutional challenges that he seeks to raise in this court.

1. Factual and procedural background

In the probation report, the probation officer recommended that the court impose an electronics search condition as probation condition 6N.

At sentencing, defense counsel stated: “Also, 6N, I’d ask that a fourth [amendment] waiver not apply to any computer or portable media. There wouldn’t be a relationship to that in this case.”

The prosecutor responded that the electronics search condition should be imposed, arguing as follows:

“[W]ith respect to the . . . conditions relating to the fourth waiver applying to electronic media, I am requesting those conditions. Essentially what happened in this case is that the defendant became angry at his ex-wife’s boyfriend, and there was a very violent physical fight in the presence of a young child.

“One of the things that pre-staged [sic] this confrontation was the fact that the defendant was communicating with [his ex-wife] and making threatening remarks, comments to one of the victims in this case, and he was conveying that to one of the witnesses via electronic media.

“I do believe that given the fact that the victim in this case and the defendant will still have that relationship that ties them together, in the sense that the defendant is still going to be accessing his ex-wife through their child, in order to keep what’s clearly a very tense and fraught situation under control, I think Probation needs to be able to monitor whether or not, in fact, the defendant is still harassing either [Scoggins’s ex-wife] or the victim in this case. These people are still going to continue having a relationship together.”

The probation officer stated that he “echo[e]s the district attorney’s concerns.”

In granting probation, the trial court stated, “I want to make sure that there is no contact either directly or indirectly with the victim in this case. If that’s transmitted electronically, I want Probation to be able to find out about it.”

The court proceeded to impose the following probation condition:

“The defendant shall: [¶] . . . [¶] Submit person, vehicle, residence, property, personal effects, computers, and recordable media [and] [a]ll electronics to search at any time with or without a warrant, and with or without reasonable cause, when required by [probation officer] or law enforcement officer.”

2. Governing law

In People v. Patton (2019) 41 Cal.App.5th 934 (Patton), this court explained that challenges to probation conditions must ordinarily be brought in the trial court, unless the challenge constitutes a facial challenge, which may be brought for the first time on appeal:

“The People argue Patton forfeited his overbreadth challenge by failing to raise it before the trial court. An as-applied constitutional challenge is forfeited unless previously raised. [Citation.] ‘ “The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so they may be corrected.” ‘ [Citation.] However, the forfeiture rule does not extend to facial constitutional challenges presenting pure questions of law that can be resolved without referring to the particular sentencing record developed below.” (Id. at p. 946.)

The Patton court rejected the defendant’s facial challenge to the electronics search condition on the merits, explaining first the nature of a facial challenge:

“A facial challenge ‘does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts.’ [Citation.] The claim is that a condition cannot have any valid application, without relying on any facts in the sentencing record. [Citation.]” (Patton, supra, 41 Cal.App.5th at p. 944.)

The Patton court then concluded that an electronics search condition that is nearly identical to the condition imposed in this case was not unconstitutionally overbroad on its face. (Patton, supra, 41 Cal.App.5th at p. 947.)

3. Application

a. Scroggins’s facial challenge is without merit

For the reasons explained in Patton, we conclude that Scroggins’s facial challenge to the electronics search condition is without merit. It cannot be said that the electronics search condition “cannot have any valid application.” (Patton, supra, 41 Cal.App.5th at p. 946.) As explained in Patton, there are instances in which an electronics search condition may be constitutionally imposed, particularly where a probationer’s underlying offense or criminal history involved the illicit use of an electronic device. (See Patton, supra, at pp. 946–947; cf. Ricardo P., supra, 7 Cal.5th at pp. 1128–1129 [observing that “[i]n certain cases, the probationer’s offense or personal history may provide the juvenile court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality”].)

b. Scroggins’s as-applied challenge is forfeited

Scroggins concedes that he failed to raise an overbreadth challenge in the trial court. Thus, Scroggins’s as-applied challenge to the electronics search condition is forfeited. (See Patton, supra, 41 Cal.App.5th at p. 946.)

C. Scroggins forfeited his contention that a probation condition requiring him to obtain permission from his probation officer prior to leaving the county is unconstitutional as applied to him

Scroggins claims that the trial court’s imposition of a probation condition that requires that he obtain permission from his probation officer before traveling outside the county is unconstitutional as applied to him.

Scroggins acknowledges that he did not object to this probation condition in the trial court. However, he contends that we should review his claim because the probation condition violates his constitutional rights. As discussed in part III.B, ante, by failing to object to the imposition of a probation condition in the trial court, an appellant forfeits an as-applied constitutional objection to such condition. (See Patton, supra, 41 Cal.App.5th at p. 946.)

Accordingly, we conclude that Scroggins forfeited his contention that the probation condition requiring that he obtain permission from his probation officer prior to leaving the county is unconstitutional as applied to him.

IV.

DISPOSITION

The curfew and marijuana conditions are stricken from the May 2, 2018 order granting formal probation. In all other respects, the order granting probation is affirmed.

The August 30, 2018 restitution order is affirmed.

AARON, J.

WE CONCUR:

HALLER, Acting P. J.

O’ROURKE, J.