P. v. Dodson 11/28/07 CA4/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: E040617

Case Date: 02/13/2008

Preview:Filed 11/28/07 P. v. Dodson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY DODSON, Defendant and Appellant. E040617 (Super.Ct.No. FSB039894) OPINION

APPEAL from the Superior Court of San Bernardino County. Michael M. Dest, Judge. Affirmed with directions. Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Marissa A. Bejarano, Deputy Attorney General, for Plaintiff and Respondent.

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Defendant Mark Anthony Dodson appeals following his guilty plea to a domestic violence offense. Defendant was placed on probation for three years subject to a number of terms and conditions. On appeal, defendant argues that three of the probation conditions are invalid and unconstitutional as applied to him. We agree with defendant's claim that the probation condition requiring him to notify his probation officer of any pets violates all three of Lent's1 probation criteria and is unconstitutionally overbroad. However, we reject defendant's other contentions, as we find that the field interrogation term and the search term are valid. Consequently, we direct the trial court to modify the pet condition and in all other respects affirm the judgment. FACTUAL AND PROCEDURAL HISTORY On May 18, 2003, police responded to an activated panic alarm. When they arrived at the alarm location, they spoke to defendant and another male witness who was standing nearby.2 Police were advised defendant had been in an argument with the woman living there, but she left on foot to cool down. Defendant assured police the argument was over, and he was leaving. Police searched the area for the woman but were unable to find her, so defendant and the witness were released. Police then received a dispatch informing them of an emergency call from a woman reporting she had just been the victim of an assault by her ex-husband.

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People v. Lent (1975) 15 Cal.3d 481, 486 (Lent)

The facts and circumstances of the offense relevant to our analysis were taken from the probation report unless otherwise noted. 2

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When police contacted the victim, she stated she and defendant had been married but were divorced about ten years. At the time of the incident, defendant was living out of state but staying at the victim's home to visit their daughter. During an argument, defendant blocked the victim's path to prevent her from leaving, so she shoved him to get by. In response, he struck her with his fist, knocking her down on a bed. Although she was able to grab her keys and hit the panic alarm, defendant eventually obtained the keys, got into the victim's vehicle, and put it in gear. The struggle continued, and the victim was dragged down the street in the vehicle. At some point she was able to climb into the vehicle to talk to defendant. Defendant did park the vehicle to talk, but the victim was afraid and jumped out. Defendant then drove the vehicle into the house, hitting the victim on her left hip causing her to spin around. The record does not include information about any injuries or property damage. The victim was contacted about restitution but did not respond by the deadline. A felony complaint was filed on June 19, 2003, charging defendant with two counts of assault with a deadly weapon in violation of Penal Code3 section 245, subdivision (a)(1). The alleged deadly weapon was a motor vehicle. Defendant was not arrested until February 16, 2006. Pursuant to a plea agreement, defendant pled guilty on April 12, 2006, to one count of corporal injury to a spouse or cohabitant in violation of section 273.5, subdivision (a). As part of the plea bargain, the People agreed to dismiss the assault charges and amend the complaint to include only a single count of corporal

All further statutory references will be to the Penal Code unless otherwise indicated. 3

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injury to his ex-wife. Defendant was released pending sentencing and credited with time served in jail. The agreed sentence was probation plus completion of a domestic violence program. The People also agreed not to oppose a reduction of the offense to a misdemeanor after 18 months if defendant did not violate the terms of his probation. When defendant was interviewed by a probation officer on May 9, 2006, he denied committing the offense and claimed he had been in close contact with the victim and his daughter since the incident but was unaware there was a warrant. According to defendant, he was living out of state and did not find out charges had been filed against him until he was told by the Social Security office he could not receive benefits because of an outstanding warrant. At that time, defendant claims he sold his belongings and returned to California to face the charges. He told the probation officer he agreed to plead guilty because he had been in jail about 50 days and was tired of it. He admitted moving out of state in 1998 without completing domestic violence classes that were ordered at that time. DISCUSSION A. The Probation Terms and Conditions Were Properly Preserved for

Appellate Review. The People argue defendant has forfeited his right to appeal the reasonableness and constitutionality of his probation conditions because he failed to make adequate objections at the time of sentencing. Defendant contends his objections below were sufficient to preserve the issues for appeal. Alternatively, he claims he received

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ineffective assistance of counsel under the Sixth Amendment if his attorney did not make an adequate record. We conclude that the "pet" condition, field interrogation condition, and the search condition were preserved on appeal and not forfeited, because (1) proper objections were raised below, and (2) defendant's claim that the pet condition is constitutionally vague and overbroad is not subject to the forfeiture rule. As we find that defendant's complaints against the probation terms and conditions were properly preserved either by an appropriate objection or by operation of law, we need not decide whether defense counsel rendered ineffective assistance of counsel. At the time of sentencing, the court and the parties reviewed the list of probation conditions recommended by the probation department. Defense counsel went through the list of conditions and registered an objection to each term she found unacceptable. Probation Condition No. 74 stated: "Keep the Probation Officer informed of place of residence, cohabitants and pets, and give written notice to the Probation Officer twenty-four (24) hours prior to any changes. . . ." Probation Condition No. 95 required defendant to: "Submit to a search and seizure of [his] person, residence and/or property under [his] control at any time of the day or night by any law enforcement officer, with or without a search warrant, and with or without cause . . . ."

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This is listed as Probation Condition No. 6 in the court's minute order. This is listed as Probation Condition No. 8 in the court's minute order. 5

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Probation Condition No. 206 stated: "Submit to, and cooperate in, a field interrogation by any peace officer at any time of the day or night." During sentencing, the court and counsel engaged in the following colloquy: "[Defense Counsel]: Your Honor, and on No. 7, we would object to `pets.' "The Court: Once again, that's a public safety issue. I will overrule your objection. "[Defense Counsel]: All right, your Honor. We'd object to No. 9 and ask it be narrowly construed for this case. "The Court: I'm going to keep it as is. [

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