People v. Beach, Cr. 43047

• Court: California Court of Appeals
• Writing for the Court: RUTBERG; FEINERMAN, P.J., and STEPHENS
• Citation: 195 Cal.Rptr. 381,147 Cal.App.3d 612
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kay Marion BEACH, Defendant and Appellant.
• Docket Number: Cr. 43047
• Decision Date: 30 September 1983

Page 381

195 Cal.Rptr. 381 147 Cal.App.3d 612 The PEOPLE, Plaintiff and Respondent,
v.
Kay Marion BEACH, Defendant and Appellant. Cr. 43047. Court of Appeal, Second District, Division 5, California. Sept. 30, 1983.

Page 384

[147 Cal.App.3d 617] Susan L. Wolk, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

[147 Cal.App.3d 618] John K. Van De Kamp, Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

RUTBERG, Associate Justice ^*.

STATEMENT OF CASE

In an information filed by the District Attorney's Office of Los Angeles County, appellant was charged with the crime of murder in violation of section 187 of the Penal Code. ¹ It was further alleged that she used a firearm within the meaning of sections 12022.5 and 1203.06, subdivision (a)(1). Appellant was tried by a jury and found guilty of involuntary manslaughter in violation of section 192, subdivision 2, a necessarily included offense as charged in count I of the information. The use allegation within the meaning of sections 12022.5 was found to have been true.

A diagnostic study pursuant to section 1203.03 was ordered. Proceedings were suspended and appellant was granted probation for five years on certain terms and conditions including that she represent to the court within a reasonable amount of time after being released from custody that she has relocated; that she complete 2,500 hours of community service; that she not use, own or possess any dangerous or deadly weapons; and that she obey all laws, orders, rules and regulations of the probation department and the court. This appeal is from a judgment of conviction (order granting probation).

STATEMENT OF FACTS

This case arose out of a tragic set of circumstance resulting in the death of one David Bell. Mr. Bell was killed by a single gunshot wound to the head from a gun fired by appellant, an elderly widow living at 1410 North McCadden Place, Los Angeles, California. Appellant, who had resided at said address for 24 years prior to the incident, admitted to the shooting, but contended that the homicide was justifiable. There was extensive defense testimony to the effect that in recent years, prior to the date of the shooting, appellant's neighborhood had degenerated due to a spiraling occurrence of burglaries, violence (including shootings), acts of prostitution and a general [147 Cal.App.3d 619] decline in respect for the neighborhood. The neighbors were concerned with abandoned vehicles, the repairing of vehicles in the streets and the littering of the area with debris. Appellant had on several prior occasions conveyed to her neighbors her concerns relating to the deterioration of her neighborhood as well as her personal fears for her own safety and that someone would break into her place as she was alone all the time. ² Appellant had also earlier complained of several acts of violence against

Page 385

her property. Appellant had installed a high fence around her property approximately 10 years prior to the homicide and kept her front gate padlocked from intruders at all times while not actually using the gate.

In the late morning hours of December 27, 1980, the deceased parked his automobile partially blocking appellant's driveway. Appellant yelled at the victim not to park the car in her driveway but the victim left the car and disappeared. Appellant, angry at this incident and at people generally for continually taking up her driveway space with their cars, smeared some fecal matter on the windshield of the deceased's automobile. The victim returned to his vehicle a few minutes later and observed what had been done to his car windshield. Upon ascertaining from a witness that appellant was the culprit, the victim then scaled appellant's fence and knocked on appellant's door. Not receiving an answer, the victim then proceeded to pick up appellant's garden hose and turn on the water in an apparent attempt to wash his windshield. According to appellant's testimony, she saw a stranger underneath her front window. She became frightened, took her gun, went outside and held it out. The man came toward her "real angry" and called her a "dirty bitch." Appellant became more frightened and she fired the gun. Appellant testified that she didn't mean to shoot the victim, that she held the gun up in the air and shot it thinking that the deceased would see it, hear the shot, would see that she was armed and become frightened. After the gun fired, the victim fell and appellant thought that he had just fainted because she didn't think she had shot him. Shortly thereafter, appellant took a bus to a friend's house through whom arrangements were made for her arrest by the police at a designated location.

APPELLANT'S CONTENTIONS

Appellant contends on appeal that:

1. "Banishment" as a condition of probation is unconstitutional.

2. The imposition of 2,500 hours of community service as a condition of probation was unjustly harsh and invites a violation of probation.

[147 Cal.App.3d 620] 3. There were multiple errors in the instructions to the jury.

4. There was a denial of the right to cross-examine and appellant was precluded from making objections.

5. The prosecutor committed misconduct during final argument.

We agree with appellant that "banishment" as a condition of probation in this particular case was unconstitutional. As to appellant's remaining contentions, we find that they are without merit.

BANISHMENT AS A CONDITION OF PROBATION WAS INVALID

Although the trial court judge's good intentions cannot be questioned, his order that defendant relocate herself from the community where she has lived in her own home for 24 years was unreasonable and unconstitutional. The trial court judge in making this order was not only concerned with a possible repetition by defendant of future acts of violence in her neighborhood, but also for appellant's personal safety because she may well now be considered a "marked woman" in her community. The trial court judge made it clear that appellant was not required to sell the property; that she could retain title to same and rent it out.

While the court does have broad discretion to impose probation conditions which foster rehabilitation and protect the public, this discretion must be exercised in a reasonable manner and is limited by certain constitutional safeguards. (See Pen.Code, § 1203.1; People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545; In re White (1979) 97 Cal.App.3d 141, 145, 158 Cal.Rptr. 562; People v. Dominguez (1967) 256 Cal.App.2d 623, 626, 64 Cal.Rptr. 290.) ³

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"The discretion granted is not boundless. In the first place, the authority is wholly statutory; the statute [Pen.Code, § 1203.1] furnishes and limits the measure of authority which the court may thus exercise [citations]." (People v. Keller (1978) 76 Cal.App.3d 827, 832, 143 Cal.Rptr. 184.)

In In re White, supra, 97 Cal.App.3d 141, 158 Cal.Rptr. 562 the defendant was convicted of prostitution. As a condition of probation she was provided with a map and was prohibited by the court from being in a specified area of Fresno, [147 Cal.App.3d 621] California, at any time of day or night. The court concluded that this condition, even though it may have some relationship to the crime of soliciting, was unreasonable because it was too broad. There were enumerable situations in which the probationer could be in the restricted area which would be totally unrelated to the crime charged or any other crime and technically she would still be in violation of this condition of probation. ⁴ The court went on to explain that keeping White out of the mapped area would have a minimal effect on future criminal conduct except possibly in that particular area.

"[A] reasonable condition of probation is not only fit and appropriate to the end in view but it must be a reasonable means to that end. Reasonable means are moderate, not excessive, not extreme, not demanding too much, well-balanced. (Webster's Third New Internat. Dict., p. 1892; Black's Law Dict., p. 1431.)" (People v. Keller, supra, 76 Cal.App.3d 827, 840, 143 Cal.Rptr. 184; italics in original.)

The probation condition in this case was unreasonably broad in light of the desired goal. Appellant had lived in her neighborhood for many years and was not involved in any prior violent conduct resulting in the filing of criminal charges. ⁵ Her physical presence in the neighborhood, for the most part, had been peaceful and law abiding. Keeping appellant out of her home and neighborhood would not necessarily prevent future criminal conduct of a similar nature except perhaps in her own particular neighborhood. No one could predict where appellant might relocate under the court order. It may well be to a similar environment. ⁶ Taking appellant away from her established home, the companionship of her neighbors, and the familiarity of her surroundings would not contribute to the inner feelings of physical security which appellant apparently so desperately needs, and may very well heighten her feelings of insecurity.

"[T]he discretion to impose conditions of probation as granted by Penal Code section 1203.1 is further circumscribed by constitutional safeguards. Human liberty is involved. A probationer has the right to enjoy a significant degree of privacy, or liberty, under the Fourth, Fifth and Fourteenth Amendments to the federal Constitution [citations]." (People v. Keller, supra, 76 Cal.App.3d 827, 832, 143 Cal.Rptr. 184.)

[147 Cal.App.3d 622] A citizen has a basic constitutional right to intrastate as well as interstate travel. (In re White, supra, 97 Cal.App.3d 141, 148, 158 Cal.Rptr. 562.) Many other fundamental rights such as free speech, free assembly and free association are often tied in with the right to travel. (See Kent v. Dulles (1958) 357 U.S. 116, 126, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204.) The right to acquire, own, enjoy and...