People v. Seymour

• Decision Date: 31 August 2015
• Docket Number: H040560
• Citation: 239 Cal.App.4th 1418,192 Cal.Rptr.3d 113
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joshua Patrick SEYMOUR, Defendant and Appellant.

239 Cal.App.4th 1418

192 Cal.Rptr.3d 113

The PEOPLE, Plaintiff and Respondent

v.Joshua Patrick SEYMOUR, Defendant and Appellant.

H040560

Court of Appeal, Sixth District, California.

Filed August 31, 2015

Attorney for Defendant and Appellant Joshua Patrick Seymour: Patrick McKenna under appointment by the Court of Appeal, for Appellant.

Attorneys for Plaintiff and Respondent The People: Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Julia Y. Le, Deputy Attorney General.

Opinion

Márquez, J.Defendant and appellant Joshua Patrick Seymour was convicted by plea of one felony count of assault by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1) ) as the result of domestic violence toward his girlfriend. (All further undesignated statutory references are to the Penal Code.) The trial court suspended imposition of sentence and granted probation for three years. The conditions of defendant's probation required him, among other things, to serve four months in jail, followed by a six-month residential substance abuse program, to complete a 52–week domestic violence program, and to not have any contact with the victim. As a condition of probation, the court also ordered defendant to pay victim restitution to the Victim Compensation and Government Claims Board (VCGCB). Initially, defendant violated his probation. Eventually, however, he complied with the conditions of his probation, except that he did not pay the full amount of victim restitution ordered. Four months before his probation was scheduled to end, the court discharged defendant from probation to permit him to attempt to get his nursing license reinstated and become more financially stable so he could pay victim restitution. At that time, defendant still owed $5,726.97 in victim restitution and the court advised him that he would have to pay the total amount due. Eight months after that, defendant filed a petition for relief pursuant to section 1203.4 to withdraw his plea and enter a plea of not guilty, to dismiss the complaint, and to be released “from all penalties and disabilities” resulting from his conviction. The trial court denied the petition.

On appeal, defendant argues that notwithstanding his failure to pay victim restitution in full, he was entitled to relief under the provision in section 1203.4, subdivision (a) that provides for mandatory relief when a defendant has been “discharged [from probation] prior to the termination of the period of probation.” The Attorney General argues that defendant was not entitled to relief because he neither paid nor was excused from paying victim restitution in full.

We conclude that defendant's failure to fully pay victim restitution did not authorize the trial court to deny the relief otherwise mandated by section 1203.4. We will therefore order the trial court to vacate its order and enter a new order granting the petition.

Facts

On September 20, 2009, at approximately 10:45 p.m., San José police officers responded to a report of domestic violence at a hotel. The victim, Meredith Masri, and defendant were in a dating relationship. Based on information on defendant's cell phone, Masri became suspicious that defendant had been cheating on her. They argued. Later, they went to the hotel bar and had a couple of drinks. Defendant became intoxicated and was “ ‘not acting right.’ ” Masri suspected he had taken too much of his anti-anxiety medication.

After they returned to their hotel room, a physical altercation ensued. According to Masri, defendant pushed her. When she attempted to leave, he blocked the door and slapped her in the face. He punched her in the face with a closed fist several times. Masri started to bleed from her mouth and her eyes began to swell shut. Defendant threw Masri onto the floor, where she scraped her knees and back. He then threw her onto the bed and punched her in the face several more times. He put his hands on her throat and strangled her until she gasped for air. During the struggle, defendant ripped off her dress, leaving her naked, then forced her into the shower to prevent her from escaping. When defendant left the bathroom, Masri escaped with just a towel wrapped around her.

Masri's injuries included a broken nose, bruises on her neck and throat, swelling of her entire face (her eyes were swollen shut), bruises and scratches on her back, and abrasions on her knees. She was treated by paramedics at the scene and taken to a hospital.

A police officer observed blood on defendant's head, neck, face, and hands, and on the walls, floor, and linens of the hotel room. The officer found a broken glass with blood on it in the bathroom and a bloody butter knife on the bed. Defendant told the officer he and Masri had been dating for two years and said Masri was 22 weeks pregnant with his child. Defendant told the officer that after they returned to the room, they decided to take a bath together. Defendant said that as he exited the bathtub, he slipped and fell on the wet floor and landed on a drinking glass, cutting his back. Defendant denied any physical altercation with Masri. Defendant had multiple lacerations on his head, neck, back, and chest. He also had swelling on his face and right hand.

Procedural History

Original Charge, Plea Agreement, and Grant of Probation

The prosecution charged defendant with one felony count of assault by means of force like to produce great bodily injury (§ 245, subd. (a)(1) ). The parties entered into a negotiated disposition in December 2009. In exchange for his no contest plea, defendant was granted probation on the condition that he serve 10 months in jail. The parties agreed that the 10–month jail sentence would include four months in jail, with the remaining time to be served in a residential substance abuse treatment program.

Prior to sentencing, the probation officer reported that defendant had three prior misdemeanor convictions, two of which resulted in grants of probation. Defendant was thus on probation when he assaulted Masri. Defendant's prior misdemeanor convictions included: (1) driving under the influence (Veh.Code, § 23152, subd. (b) ); (2) driving on a suspended license (Veh.Code, § 14601.5, subd. (a) ); and (3) vandalism (§ 594, subd. (b)(1)). Masri told the probation officer she did not plan to reconcile with defendant and requested a protective order.

At sentencing, the court suspended imposition of sentence and granted three years probation. In accordance with the plea agreement, the court ordered defendant, as a condition of probation, to serve 10 months in jail with six months of that time in a residential treatment program. Other conditions of probation included: (1) substance abuse counseling, (2) a 52–week domestic violence program, (3) 40 hours of uncompensated community service, (4) a protective order and an order to stay away from Masri for three years, (5) victim restitution in an amount to be determined by the parties, and (6) fines and fees.

Defendant's Conduct on Probation & Restitution Order

On May 7, 2010, defendant was charged with violating the no-contact order. He admitted the violation in exchange for the prosecution's promise not to file new criminal charges based on the violation. The court found a felony violation of probation, revoked and reinstated probation, and ordered defendant to serve an additional 60 days in jail consecutive to his prior jail term.

In June 2010, defendant was accepted into a residential treatment program and began psychiatric treatment at the Valley Homeless Clinic. In August 2010, defendant's case was assigned to the domestic violence/mental health review calendar. Thereafter, defendant made monthly or bi-monthly appearances before the court to discuss his progress on probation.

In October 2010, the court ordered defendant to pay $6,584.97 in victim restitution to the VCGCB. The court also made an order of restitution in favor of Masri in an unspecified amount.

In December 2010, Masri appeared at defendant's review hearing and asked the court for a “peaceful contact order.” The court observed that defendant had just started his domestic violence program and had missed a therapy session and a drug testing appointment. The district attorney argued that defendant was not participating in his domestic violence program, and asked the court to deny the peaceful contact order to allow time for defendant to work on his programs. The court denied the request to modify the no-contact order. The court ordered defendant to complete his community service by the next court date and to attend thirty 12–step meetings in 30 days.

At the January 2011 review hearing, the court noted that defendant had complied with the conditions of his probation and was doing well in his domestic violence program, except that he had violated the no-contact order by seeing Masri at some of his 12–step meetings. Although the court characterized this as “willful disobedience of the court order,” it elected not to declare a probation violation. The court also denied defendant's request to modify the no-contact order.

The next day, Masri filed a motion to modify the protective order, stating that she and defendant wanted to live together. The motion was scheduled for a hearing on February 23, 2011. Prior to the hearing, the probation officer filed a supplemental report that recounted the facts that led to defendant's 2008 conviction for vandalism. The male victim in that case responded to defendant and Masri's advertisement on Craigslist requesting a “ ‘consensual encounter.’ ” The three of them went to a bar, then rented a hotel room. When the male victim refused to perform oral sex on Masri, defendant yelled obscenities, threw wine in the male victim's face, and threw a glass at the back of the male victim's head, causing the glass to shatter. Defendant then slapped Masri, which provided the male victim an opportunity to...