THE PEOPLE v. WARREN FIELDS

Filed 1/16/20 P. v. Fields 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

WARREN FIELDS,

Defendant and Appellant.

C081467

(Super. Ct. No. 15F05529)

Following a jury trial, defendant Warren Fields was convicted of corporal injury to the mother of his children (Pen. Code, § 273.5, subd. (a)) and simple battery (§ 242). The trial court suspended imposition of sentence and placed him on five years’ formal probation.

He contends on appeal that refusing to allow him to cross-examine the complaining witness regarding warnings about Child Protective Services (CPS) intervention violated his rights to confrontation, due process, and to present a defense. He further contends an electronic search condition is unreasonable and overbroad, and the battery conviction must be reversed as a lesser included offense of the domestic violence count.

It was neither an abuse of discretion nor a violation of defendant’s constitutional rights to sustain an objection to questioning regarding a three-year-old statement from police regarding CPS. The electronic search condition is now unreasonable in light of a recent California Supreme Court decision, and the battery conviction must be reversed as it is a lesser included offense of the domestic violence crime. We shall reverse the battery conviction, strike the electronic search condition, and affirm the judgment as modified.

I. BACKGROUND

A. Prosecution Case

Defendant and Doe were in a relationship for about eight years, living together most of the time. They lived with their two children and two of Doe’s children from a prior relationship.

On September 4, 2015, Doe and defendant picked up their seven-year-old child from school in the afternoon and returned home. Upon returning home, defendant drank a few shots of tequila and became loud and belligerent, calling Doe names and saying hateful things. Recognizing defendant was drunk, Doe decided she and the children should leave.

Defendant stood behind Doe and continued to yell at her as she helped her daughter put on her shoes. As Doe turned to tell defendant to get away from her, she raised her arm above her head and put her hands on defendant but did not push him. She did not hit or threaten defendant, who is a foot taller and 30 pounds heavier than her. Without warning, defendant punched Doe in the left eye, causing her to fall to the floor. Doe did not know she had been hit by defendant until she saw blood coming down her face. Defendant had not been physically violent to her before.

Doe called 911 and reported that defendant hit her. She told the operator she had been helping her daughter put on her shoe as defendant was getting in her face. Doe told defendant to back up and she pushed him. She told the operator defendant socked her in the face and her eye was swollen. When the operator connected her with the police, Doe asked the police to “please, just get here” as her eye was swollen.

Upon arrival, police talked to defendant and Doe. Doe was in pain and very emotional, while defendant was very agitated and not happy the police were there. Doe told the officer she told defendant to get away from her and pushed him, and defendant hit her. Police took photographs of Doe. The photographs showed a small cut above her left eye, which was nearly swollen shut.

Doe’s eye hurt after defendant hit her; it was sensitive to light, but she did not have trouble seeing. She went to the hospital a few days after the attack, but no treatment was provided. The swelling lasted for about two weeks, and it took two to three weeks for the cut to heal.

Doe did not want to testify. She and defendant no longer lived together, but they still talked. Doe did not know if she wanted a relationship with defendant, but she wanted him to have a relationship with his children.

B. Defense

Testifying on his own behalf, defendant said he had no problem with alcohol and had never been previously arrested. He had been unemployed for about four months at the time of the incident, losing his job because of a health condition.

On the day of the incident, when they went to pick up the children from school, defendant drove a 1988 Mustang he had just gotten running while Doe drove another vehicle. Defendant parked the car in the garage after returning; while Doe was outside the car, directing it into a tight space, defendant hit a box with the Mustang.

Doe was very upset with defendant for hitting the box, even though there was no damage. The discussion about the box escalated to a more general argument where Doe criticized defendant for being unemployed. The argument continued as they went into the house. Defendant had already consumed two or three shots of tequila to celebrate getting the car running. Doe told him she was preparing to leave with the children; he voiced his objection to her plan.

As Doe put shoes on her oldest child, defendant said something that incensed her. An angry Doe turned around and lunged at defendant with full force, grabbing at his throat or reaching at his face. Defendant hit her in the eye as a “knee-jerk reaction.” He believed it was necessary to hit Doe to keep her from attacking him. Defendant had never hit Doe before, and he did not intend to hurt or assault her.

In June 2012, defendant and Doe were having a discussion in the bedroom when Doe sprayed him in the face with air freshener after he lit a cigarette. After defendant went to the garage, Doe barricaded him there with furniture, preventing him from returning to the house and rinsing his burning eyes. Defendant called 911 after this incident and reentered the house after he and Doe spoke to the responding police officers.

Later in 2012, when he and Doe were separated, defendant returned to the home to pick up their older son. As defendant was getting ready to leave, Doe said she did not want him leaving in the car he arrived in and unsuccessfully tried to take the keys from him. Next, she picked up a golf club, exited the house, and told defendant she would keep him from leaving in the car. After defendant urged her not to make a scene, Doe returned the golf club to the house.

Doe next released their two dogs from their kennels and they ran out the front door. Defendant caught the dogs, put them in his car, and called the police. The police took statements from defendant and Doe and warned they would call CPS if they had to return.

In 2015, when Doe’s child swallowed a bottle of antibiotics, defendant called 911, but Doe, upset that he called 911, drove the child to the emergency room and cancelled the 911 request.

Following the October 13, 2015, preliminary hearing, Doe told defendant she was upset with how it was going and concerned he was trying to build a case against her. She previously told defendant that if he did not make alcohol the reason for inflicting her injury he would be “fucked.” Defendant took this as a threat.

II. DISCUSSION

A. Cross-Examination Objection

During Doe’s cross-examination, Doe testified that CPS came to her house the day after defendant hit her. Trial counsel later asked Doe, “I want to talk to you a little bit more about child protective services. Now, on the day—police officers have told you before that if they have to come back out to the residence, they’d call child protective services and take your children; is that true?” Doe responded, “On September the 4th, no.” The trial court sustained the prosecutor’s relevance objection.

Trial counsel subsequently made an offer of proof that the “line of questioning about the CPS things was going towards her motive to lie about the case.” According to the prosecution, defendant was present when officers went to the home on prior occasions, and police “told them that if they had to be back out there, CPS would be called.” Defendant would testify that Doe coached or told him how to approach the case. Counsel asserted the objection to the “line of questioning would have gone to her motive to try to minimize her conduct and also provide some type of excuse for Mr. Fields by having Mr. Fields claim that, you know, he was drunk and this was some aberration in order to, perhaps, seek leniency or some type of excuse for this alleged conduct.”

The prosecutor stated he objected to the questioning under Evidence Code section 352, claiming the questioning raised a substantial danger of irrelevant and prejudicial evidence coming in. The prosecutor did not “know what the CPS situation is,” and the defense provided no offer of proof regarding CPS. According to the prosecutor, the prior event was remote and irrelevant to defendant’s self-defense claim.

The trial court found the proposed line of questioning was inadmissible under Evidence Code section 352. In support of the ruling, the court stated, “The idea that the victim is a bad mother and that CPS is after her or might take her children is a volatile and emotional topic.” It found that “not knowing exactly what CPS[’s] role is[,] bringing the fact that she’s concerned about that or there is some threat of CPS taking her kids just invites the jury to speculate.”

Defendant claims the trial court’s ruling violated his rights to confront the accuser and present a defense. According to defendant, evidence of Doe’s CPS concerns would have revealed her bias and buttress claims she was lying and defendant’s claim of self-defense was truthful. He finds the court’s rationale to be conclusory with no factual basis in the record. From this, he concludes the ruling violated his confrontation and due process rights.

Whether rooted in the Sixth Amendment Confrontation Clause or the Fourteenth Amendment Due Process Clause, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. (Crane v. Kentucky (1986) 476 U.S. 683, 690 [90 L.Ed.2d 636, 645].) Generally, the application of ordinary rules of evidence, such as Evidence Code sections 210 (admission of relevant evidence) and 352 (discretion to exclude evidence), does not impermissibly infringe on the accused’s right to present a defense. (People v. Snow (2003) 30 Cal.4th 43, 90.) “Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense.” (People v. Fudge (1994) 7 Cal.4th 1075, 1103.)

The same reasoning applies to limits on a defendant’s cross-examination of adverse witnesses. “ ‘ “[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’ ” [Citations.] However, not every restriction on a defendant’s desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced “a significantly different impression of [the witnesses’] credibility” [citation], the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.’ ” (People v. Virgil (2011) 51 Cal.4th 1210, 1251.)

The trial court retains wide discretion to limit cross-examination that is prejudicial, confuses the issues, or is of marginal relevance. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679 [89 L.Ed.2d 674, 683].) Applying “the ordinary rules of evidence” normally does not violate a defendant’s constitutional rights. (People v. Kraft (2000) 23 Cal.4th 978, 1035.) “In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352.” (People v. Quartermain (1997), 623.)

Although defendant did not specifically raise a constitutional argument when seeking to admit the cross-examination, we nonetheless decide his claim on the merits. Defendant sought inquiry into an incident three years before the event underlying the charged offenses. It would raise issues tangential to the crimes at issue, and those issues (Doe’s relationship with her children and possible CPS involvement) are, as the trial court reasoned, volatile and emotional topics. Since there was no evidence of CPS’s position regarding the incident, defendant and Doe as parents, or the children’s welfare, the questioning also invited the jury to speculate about these tangential subjects. It was well-within the trial court’s broad discretion under Evidence Code section 352 to prevent questioning on this minimally relevant and prejudicial line. Since the proposed line of cross-examination would not lead to a significantly different impression of Doe’s credibility, neither the right to confrontation nor the right to present a defense were violated.

B. Cell Phone Search Condition

The trial court ordered as a condition of probation that defendant submit his “cell phone and any passwords to the cell phone to search and seizure.” Defendant did not object to the condition. He contends the condition is unreasonable and unconstitutionally overbroad, and any forfeiture caused by his failure to object results in ineffective assistance of counsel.

In general, a defendant’s failure to make a timely objection to a probation condition forfeits the claim of error on appeal. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) However, a defendant may challenge for the first time on appeal whether a condition is facially overbroad, so long as the claim presents a pure question of law without reference to the particular sentencing record developed (or left undeveloped) in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 889; People v. Turner (2007) 155 Cal.App.4th 1432, 1435.) A recent decision of the California Supreme Court, In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), invalidated an electronic search condition as unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent). While the failure to object would normally forfeit a challenge under Lent, since Ricardo P. was decided after trial (and appellate briefing) and defendant also raises an ineffective assistance claim, we address the Lent/Ricardo P. issue on the merits.

“The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof.” (Lent, supra, 15 Cal.3d at p. 486.) Consequently, we review conditions of probation for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) “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.’ ” (Lent, supra, at p. 486.) The Lent “test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.” (Olguin, supra, at pp. 379-380.)

In Ricardo P., the minor was placed on probation after admitting to two counts of burglary; one condition of probation was that he “submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices.” (Ricardo P., supra, 7 Cal.5th at p. 1115.) While the minor did not use electronic devices in committing the burglaries, the juvenile court “imposed the condition in order to monitor his compliance with separate conditions prohibiting him from using or possessing illegal drugs.” (Ibid.) The Court of Appeal found the condition permissible under Lent because it was reasonably related to enhancing the minor’s supervision while on probation, but also found it was unconstitutionally overbroad. (Id. at p. 1116.) The Supreme Court found the condition invalid under Lent. (Ibid.)

The Supreme Court agreed with the Court of Appeal that the first two parts of the Lent test were met in Ricardo P.; review was granted to determine whether the “condition satisfies Lent’s third prong—that is, whether it ‘ “requires or forbids conduct which is not reasonably related to future criminality.” ’ ” (Ricardo P., supra, 7 Cal.5th at p. 1119.) The Supreme Court found “the condition satisfies Lent’s third prong and is therefore invalid under the Lent test because, on the record before us, the burden it imposes on Ricardo’s privacy is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society.” (Ibid.)

According to the Supreme Court, by requiring a reasonable relationship between the condition and future criminality, Lent “contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” (Ricardo P., supra, 7 Cal.5th at p. 1122.) The condition significantly burdened the minor’s privacy interests, given how much sensitive and confidential information can be accessed on devices like cell phones. (Id. at p. 1123.) The record did not support such a significant burden on the minor’s privacy. The only rationale provided by the trial court was evidence that the minor previously used marijuana and its observation that minors often brag about using marijuana or other drugs by posting online pictures of themselves with drugs or paraphernalia. (Id. at p. 1122.) “If we were to find this record sufficient to sustain the probation condition at issue, it is difficult to conceive of any case in which a comparable condition could not be imposed, especially given the constant and pervasive use of electronic devices and social media by juveniles today. In virtually every case, one could hypothesize that monitoring a probationer’s electronic devices and social media might deter or prevent future criminal conduct. For example, an electronics search condition could be imposed on a defendant convicted of carrying an unregistered concealed weapon on the ground that text messages, e-mails, or online photos could reveal evidence that the defendant possesses contraband or is participating in a gang. [Citation.] Indeed, whatever crime a juvenile might have committed, it could be said that juveniles may use electronic devices and social media to mention or brag about their illicit activities.” (Id. at p. 1123.)

The Court of Appeal’s rationale fared no better. It relied on Olguin, which upheld a requirement that the probationer notify the probation officer about pets at his residence as enabling the officer to supervise the defendant, which was reasonably related to the probationer’s future criminality. (Ricardo P., supra, 7 Cal.5th at p. 1124; see Olguin, supra, 45 Cal.4th at pp. 380-382.) “Compared to the minimally invasive pet notification requirement in Olguin, requiring a probationer to surrender electronic devices and passwords to search at any time is far more burdensome and intrusive, and requires a correspondingly substantial and particularized justification.” (Ricardo P., supra, at p. 1125.)

Such was not present in the case before the Supreme Court. “In sum, we hold that the electronics search condition here is not reasonably related to future criminality and is therefore invalid under Lent. Our holding does not categorically invalidate electronics search conditions. In 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.” (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.)

Ricardo P. controls. Defendant’s crime does not involve the use of a cell phone and cell phones are not themselves criminal. As in Ricardo P., the cell phone search condition here fails the third prong of Lent. There is no evidence defendant used a cell phone in any way related to his crime. While warrantless searches of defendant’s cell phone would aid in supervising him on probation, this cannot justify the significant burden on defendant’s privacy interests that such intrusion entails. Since the condition is not reasonably related to defendant’s future criminality, it is invalid under Lent, as interpreted in Ricardo P. We shall direct the trial court to issue an amended probation order omitting the invalid condition. In light of our ruling, we decline to address defendant’s overbreadth arguments.

C. Conviction for a Lesser Included Offense

Defendant was convicted of violating the domestic violence statute, section 273.5, and simple battery (§ 242) for the same act of punching Doe in the eye. Defendant contends, and the People agree, that the battery offense cannot stand because it is a lesser included offense of the domestic violence crime.

“The law prohibits simultaneous convictions for both a greater offense and a lesser offense necessarily included within it, when based on the same conduct.” (People v. Milward (2011) 52 Cal.4th 580, 589.) Section 273.5 defines an offense which is a specialized crime of battery that applies to particular persons; thus, battery is a lesser included offense of section 273.5. (People v. Abrego (1993) 21 Cal.App.4th 133, 137.) Accordingly, we shall reverse the conviction for simple battery.

III. DISPOSITION

The conviction for battery is reversed and the electronics search condition is stricken. As modified, the judgment is affirmed. The trial court is directed to issue an amended minute order and order of probation reflecting the judgment as modified, and to forward certified copies to the necessary authorities, if any.

/S/

RENNER, J.

We concur:

/S/

ROBIE, Acting P. J.

/S/

MAURO, J.

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