Opinion
D071310
11-30-2017
THE PEOPLE, Plaintiff and Respondent, v. JON K. SCUDDER, Defendant and Appellant.
Benjamin P. Lechman and Patrick Dudley, under appointments 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, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD265458) APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed. Benjamin P. Lechman and Patrick Dudley, under appointments 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, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
Jon K. Scudder appeals a judgment following his jury conviction of driving under the influence of alcohol (DUI; Veh. Code, § 23152, subd. (a); count 1), driving while having a blood alcohol level of 0.08 percent or more (§ 23152, subd. (b); count 2), and driving while driving privileges were suspended for a prior DUI conviction (§ 14601.2, subd. (a); count 3). The jury also found true allegations that he had a blood alcohol level of 0.15 percent or more when he committed counts 1 and 2. He admitted allegations that he had four prior DUI convictions within the past 10 years when he committed counts 1 and 2. The trial court sentenced Scudder to three years on count 1, splitting that sentence so that he would spend two years in custody and then one year on mandatory supervision. On appeal, he contends the court erred by: (1) admitting evidence of his blood draw that was obtained by unreasonable force; (2) instructing with CALCRIM No. 2241 on the definitions of "driver" and "drives"; (3) instructing with CALCRIM No. 362 on consciousness of guilt; and (4) imposing as mandatory supervision conditions an electronic search condition and a residence and employment approval condition. We affirm the judgment.
All statutory references are to the Vehicle Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
On January 20, 2016, Mary Bellon was driving her car on Gramercy Drive in San Diego when she struck Scudder's truck, which was parked at an angle on the side of the street. She approached Scudder, who exited his truck from its driver's side. He yelled at her for hitting his truck. He unsuccessfully tried to restart his truck and then walked to a nearby field. After he left, Bellon called the police.
About 10 to 20 minutes later, Scudder returned, started his truck, and drove away. Bellon did not see any other person with Scudder before or after his return to the truck. When police arrived, they took Bellon to the bottom of a hill where she identified Scudder and his truck.
San Diego Police Officer Matthew Koerber spoke with Lorraine Morales, Scudder's girlfriend, at the scene. She told him she was a passenger in the truck, but was otherwise evasive in her answers to his questions.
San Diego Police Officer Andres Gonzalez observed that Scudder had slurred speech, had watery and bloodshot eyes, and smelled of alcohol. His gait was unsteady, he appeared disheveled, and his pants were unzipped. He could not produce a driver's license. He yelled and was uncooperative. He refused to answer field sobriety test questions or submit to a field sobriety test.
Morales did not appear to Officer Gonzalez to be under the influence. She gave him her driver's license and volunteered that she was the truck's driver. The officers found an open bottle of bourbon in the truck's cabin. When he was told a person had identified him as the driver, Scudder went "ballistic." Morales thereafter did not identify herself as the driver.
After Scudder was placed under arrest, Morales admitted she was a passenger in the truck. When Scudder refused a breath or blood alcohol test, Officer Gonzalez obtained a search warrant to draw his blood. During the blood draw, Scudder was uncooperative and insisted he was not the driver. His blood alcohol level was 0.21 percent.
An amended information charged Scudder with DUI (§ 23152, subd. (a); count 1), driving while having a blood alcohol level of 0.08 percent or more (§ 23152, subd. (b); count 2), and driving while driving privileges were suspended for a prior DUI conviction (§ 14601.2, subd. (a); count 3). It also alleged that in committing counts 1 and 2 he had four prior DUI convictions within the past 10 years (§ 23550, subd. (a)) and had a blood alcohol level of 0.15 percent or more (§ 23578).
At trial, the prosecution presented evidence substantially as described above. Morales also testified that at the time of the incident, she lived in Clairemont and Scudder lived in Los Angeles. Although Scudder visited her that day, he was not driving his truck and another unidentified person drove him there. Scudder loaned her his truck to go to work and she dropped him off in Pacific Beach. After work, she picked him up in Pacific Beach. He did not appear to have been drinking. She drove to a restaurant where they had dinner, but no alcohol. After dinner, she began driving around to become familiar with the area. When the truck's engine began to stall, Morales parked the truck. She walked to find an automotive parts store, while Scudder waited in the truck. When Scudder called to tell Morales that his truck had been struck by a car, she walked back to the scene. On her arrival, she saw Scudder but no one else. With Morales steering, Scudder pushed the truck. The truck rolled to the bottom of a hill where it stopped on a curb. Frustrated, Scudder left to take a walk, while Morales stayed with the truck. He returned shortly before the police arrived and smelled of alcohol. Morales testified that when she initially told the officers that she was a passenger, it was because she was nervous. Officer Gonzalez testified that Morales never told him that she had left the scene to find automobile parts.
The parties stipulated that on the date of the incident, Scudder did not have a valid driver's license, that his license was suspended and revoked, and that he knew his license was suspended and revoked.
In his defense, Scudder presented the testimony of Michael Patrick, an employee of a store located about a 10-minute walk from the scene. Patrick recalled that Scudder bought cigars between 7:00 p.m. and 9:00 p.m. that day, but he did not appear to be drunk. Patrick testified that the week after the incident Scudder asked him for the surveillance video recording and then took a photograph of relevant footage. However, that video recording was no longer available when an investigator later requested it.
The jury found Scudder guilty on all counts and found true the section 23578 allegations. Scudder admitted the section 23550, subdivision (a), allegations that he had been convicted of four prior DUI offenses within the past 10 years. The trial court sentenced Scudder to three years on count 1, splitting that sentence so that he would spend two years in custody and then one year on mandatory supervision. It stayed his sentence on count 2 pursuant to section 654 and imposed a term of 129 days on count 3, to be served concurrently with his sentence on count 1. Scudder timely filed a notice of appeal.
DISCUSSION
I
Admission of Evidence of Scudder's Blood Draw
Scudder contends the trial court erred by admitting evidence of his blood draw that was obtained by use of unreasonable force by police officers.
A
Before trial, Scudder filed an in limine motion to suppress evidence of his blood draw that was purportedly obtained by unreasonable force by police officers. He argued that the officers obtained his blood sample against his will by pressing downward on a PVC pipe that was placed behind a chair and through his handcuffs, causing him pain.
During an Evidence Code section 402 hearing on Scudder's motion to suppress, Officer Gonzalez testified that after he arrested Scudder, he transported him to police headquarters. Scudder was uncooperative and kicked the seat and door of the patrol car. He refused to give him a breath or blood sample. After obtaining a warrant for a forced blood draw, Officer Gonzalez and Officer Zirpolo placed Scudder in a chair with his hands handcuffed behind his back. Because Scudder was moving his arms and refusing to allow the phlebotomist to obtain a blood draw, Officer Gonzalez applied force he believed was necessary to overcome his resistance, using a piece of pipe to press down on his handcuffs and keep his arms straight. The court viewed the video recording from Officer Gonzalez's body camera.
The recording showed that before Officer Gonzalez applied any pressure to the handcuffs, Scudder stated that he was hurting him. Although he claimed his wrists were bleeding, they were not bleeding. Officer Gonzalez testified that he pushed down "a little bit" to prevent Scudder from pulling up his arms. He did not apply all of his weight. After the blood draw was completed, Officer Gonzalez stopped pressing on the handcuffs. He did not see any injuries on Scudder. Because it was a forced blood draw, Officer Gonzalez did not believe it would have been safe to obtain the blood draw in the room typically used to obtain consensual blood draws. The chair in that room required uncuffing of the individual.
Angela Guevara, a phlebotomist, testified that she drew Scudder's blood and had done hundreds of forced blood draws before. Her initial attempt to draw his blood was unsuccessful because Scudder was moving his hands. When watching the video recording of the blood draw, she did not observe anything that was unsafe or out of the ordinary.
Scudder testified at the hearing that he was in pain because of the force used by Officer Gonzalez, his wrists were swollen and bleeding, and his left shoulder was "burning." He claimed he suffered three tears in his shoulder and received medical attention for his shoulder. He admitted he refused the breath and blood tests and resisted the blood draw because he was not driving the truck.
The court denied the motion to suppress, explaining that Scudder continued to resist the blood draw by pulling his arms and hands even though he was handcuffed to a chair. Scudder's defense counsel suggested that the officers should have instead taken Scudder to a hospital where soft restraints could have been used. However, the court noted there was no evidence regarding that proposed alternative and, in any event, it would be impractical to do so whenever a person resists a blood draw. The court also stated that it had only Scudder's hearsay testimony about the purported injuries he suffered as a result of the forced blood draw. The court stated: "Here this looked like a very legitimate way to try to keep [Scudder] from moving his hands for 20 seconds so they could get the blood draw." It found the blood draw was lawful, there was no outrageous conduct by the police officers, and Scudder caused his purported injuries by his own misconduct. Accordingly, the court denied his motion to suppress evidence of the blood draw.
B
Police officers may not use unreasonable force in obtaining a blood sample, regardless of whether they have a warrant to obtain a sample. (People v. Rossetti (2014) 230 Cal.App.4th 1070, 1078 (Rossetti).) "Law enforcement must act reasonably and use only that degree of force which is necessary to overcome a defendant's resistance in taking a blood sample. Even where necessary to obtain a blood sample police may not act in a manner which will 'shock the conscience.' A defendant's arbitrary refusal to submit to a blood test will not excuse unlawful police conduct." (Carleton v. Superior Court (1985) 170 Cal.App.3d 1182, 1187-1188, fn. omitted (Carleton).) In reviewing a trial court's ruling on a motion to suppress, we defer to the court's express and implied findings of fact if supported by substantial evidence, but exercise our independent judgment in determining the legality of the search based on those findings of fact. (People v. Tully (2012) 54 Cal.4th 952, 979; Rossetti, at p. 1074.) We apply federal constitutional standards to issues relating to suppression of evidence obtained from police searches and seizures. (People v. Bradford (1997) 15 Cal.4th 1229, 1291.)
C
Based on our review of the record, we conclude the trial court properly denied Scudder's motion to suppress and admitted evidence of his blood draw. In particular, we conclude the police officers did not use unreasonable force to obtain that evidence. Officer Gonzalez testified that because Scudder refused a breath or blood test, he obtained a warrant to obtain a blood draw. Nevertheless, Scudder, which the trial court described as a very large man, resisted the blood draw, moving his arms and hands. To keep his arms still long enough for the phlebotomist to obtain a blood draw, Officer Gonzalez pushed down on a piece of PVC pipe against Scudder's handcuffs behind his back, which pipe acted as a lever and straightened his arms. When the blood draw was completed by the phlebotomist, Officer Gonzalez stopped pressing down on the pipe. Officer Gonzalez testified that he applied no more force than was necessary to overcome Scudder's resistance. Under those circumstances, we conclude the force used was reasonable and did not shock the conscience. (Carleton, supra, 170 Cal.App.3d at p. 1188.) Although we presume, as Scudder argues, that there may have been less forceful means of obtaining a blood draw (e.g., transporting him to a hospital where soft restraints could have been used), the existence of that alternative does not make the means used in this case unreasonable. Scudder does not cite, and we are unaware of, any case so holding. Furthermore, the fact that Scudder may have suffered an injury as a result of the means used in this case does not necessarily make the means used unreasonable.
Although Scudder testified at the Evidence Code section 402 hearing that his hands and wrists were swollen and/or bleeding as a result of the force used by Officer Gonzalez, the trial court reasonably found, based on its viewing of the video recording of the blood draw and the testimony of Officer Gonzalez and Guevara, the phlebotomist, that Scudder "brought on whatever injury ensued by his own misconduct" or resistance and therefore the police officers did not use any unreasonable force in obtaining the blood draw evidence. Furthermore, although Scudder also testified at the hearing that he suffered, and an MRI confirmed that he had, three tears in his shoulder, the court properly excluded that evidence as inadmissible hearsay.
Our review of three cases in which officers used more force than in this case supports our conclusion that the force used to obtain Scudder's blood draw was reasonable. In Carleton, six officers restrained the resisting defendant by holding him face down on the floor in a temporary carotid restraint while also holding his arms and legs. (Carleton, supra, 170 Cal.App.3d at p. 1190.) Carleton concluded the force used to obtain the blood draw was reasonable. (Id. at p. 1191.)
In Rossetti, four officers restrained the kicking and noncompliant defendant by forcing him down onto the floor while handcuffed and holding him there for a few minutes while the blood draw was performed. (Rossetti, supra, 230 Cal.App.4th at p. 1078.) Rossetti concluded the force used to obtain the blood draw was reasonable. (Id. at p. 1079.)
In People v. Kraft (1970) 3 Cal.App.3d 890 (Kraft), cited by Scudder, a police officer punched the defendant in the face without provocation. (Id. at p. 896.) Although the defendant did not behave aggressively, officers pushed him to the floor and held his legs in a scissor lock while the blood draw was performed. (Id. at pp. 896, 898-899.) Kraft concluded the force used to obtain the blood draw was unreasonable. (Id. at pp. 898-899.)
We conclude the circumstances and the force used in this case are more like that in Carleton and Rossetti than that in Kraft. Furthermore, the force used in this case was less than the force used in Carleton and Rossetti, both of which involved multiple officers restraining the defendant on the ground. In this case, a single officer, Gonzalez, applied only that degree of force necessary to obtain a blood draw and Scudder remained seated during the entire process. Furthermore, unlike Kraft, none of the officers in this case used any gratuitous violence to obtain the blood draw. Therefore, the force used to obtain Scudder's blood draw was reasonable and does not shock the conscience.
Contrary to Scudder's assertion, there is nothing in the record showing the officers and/or phlebotomist in this case were inadequately trained. Officer Gonzalez was assisted by an officer with more experience and the phlebotomist testified that she had performed hundreds of forced blood draws and there was nothing unusual about the procedures used to obtain Scudder's blood draw. She used proper equipment and took steps to ensure sanitary conditions. Furthermore, contrary to Scudder's assertion, there is nothing about the poorly lit conditions of the garage of the police headquarters that made the blood draw performed there unreasonable. Accordingly, the court properly denied Scudder's motion to suppress and admitted evidence of his blood draw.
II
Instruction with CALCRIM No. 2241
Scudder contends that the trial court erred by instructing with CALCRIM No. 2241 on the definitions of "driver" and "drives." He argues that the instruction's language improperly allowed the jury to convict him even though he may only have pushed, and not driven, the truck.
Scudder does not, nor could he reasonably, argue there is insufficient evidence to support the court's instruction with CALCRIM No. 2241 (or CALCRIM Nos. 2110 and 2111).
A
The court instructed the jury with CALCRIM No. 2110 on the count 1 offense of driving under the influence of alcohol, stating in part that: "[T]he People must prove that: [¶] 1. The defendant drove a vehicle; AND [¶] 2. When he drove, the defendant was under the influence of an alcoholic beverage." (Italics added.) The court similarly instructed with CALCRIM No. 2111 on the count 2 offense of driving with a blood alcohol level of 0.08 percent or more, stating in part that: "[T]he People must prove that: [¶] 1. The defendant drove a vehicle; AND [¶] 2. When he drove, the defendant's blood alcohol level was 0.08 percent or more by weight." (Italics added.)
The court then instructed with CALCRIM No. 2241 as follows:
"A driver is a person who drives or is in actual physical control of a vehicle.Scudder did not object to, or request clarification or amplification of, any of the above instructions.
"A person drives a vehicle when he or she intentionally causes it to move by exercising actual physical control over it. The person must cause the vehicle to move, but the movement may be slight."
B
Even in the absence of a request, a trial court must instruct the jury on general principles of law that are relevant to the issues raised by the evidence and necessary for the jury's understanding of the case. (People v. Martinez (2010) 47 Cal.4th 911, 953; People v. Breverman (1998) 19 Cal.4th 142, 154.) The court's sua sponte duty extends to instructions on a defendant's theory of the case, including defenses expressly relied on, and other defenses not inconsistent with the defendant's theory of the case, provided there is substantial evidence to support those defenses. (People v. Gutierrez (2009) 45 Cal.4th 789, 824.) However, a court is not required to give sua sponte a "pinpoint" instruction that relates evidence to the defendant's theory of the case. (People v. Anderson (2011) 51 Cal.4th 989, 996-997 (Anderson); People v. Dennis (1998) 17 Cal.4th 468, 514 (Dennis); People v. San Nicolas (2004) 34 Cal.4th 614, 670 (San Nicolas).) If a defendant does not request a pinpoint instruction, the defendant forfeits any claim that the court erred by not giving that instruction if the court's other instructions adequately informed the jury of applicable legal principles relevant to the case. (People v. Williams (1980) 101 Cal.App.3d 711, 719 (Williams).) Likewise, if a defendant does not request any clarifying or amplifying instructions, the defendant forfeits any claim that the court erred by giving an ambiguous or incomplete instruction. (People v. Cole (2004) 33 Cal.4th 1158, 1211 (Cole).) A court has no duty to revise or improve an instruction's correct statement of law without a request by counsel. (People v. Kelly (1992) 1 Cal.4th 495, 535 (Kelly).) A defendant's failure to request clarification of an otherwise correct instruction forfeits any claim of instructional error. (People v. Rundle (2008) 43 Cal.4th 76, 151 (Rundle).) "[A] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested the appropriate clarifying or amplifying language." (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 (Hudson).) On appeal, we determine independently whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.)
C
Forfeiture
As the People assert, Scudder forfeited any claim that CALCRIM No. 2241 was ambiguous or incomplete by not objecting below and/or requesting clarifying or amplifying language. Although he argues on appeal that the court should have instructed that "driving requires conduct necessary to the operation of the vehicle," Scudder did not request that clarifying or amplifying language below and therefore forfeited his claim that the court erred by not so instructing. (Cole, supra, 33 Cal.4th at p. 1211; Kelly, supra, 1 Cal.4th at p. 535; Rundle, supra, 43 Cal.4th at p. 151; Hudson, supra, 38 Cal.4th at pp. 1011-1012.) Likewise, to the extent Scudder argues the court should have instructed that driving requires both steering and other control of a vehicle while it is in motion, he forfeited that claim by not requesting such clarifying or amplifying language below.
D
Correct Statement of Law
To the extent Scudder argues the court erred by instructing with CALCRIM No. 2241 because it incorrectly stated applicable law, that claim is not forfeited and may be raised on appeal. However, we conclude that instruction correctly stated the law that applied to this case.
Section 305 defines a "driver" as "a person who drives or is in actual physical control of a vehicle." That statutory definition of "driver" was included in CALCRIM No. 2241 as given by the trial court, along with additional language stating: "A person drives a vehicle when he or she intentionally causes it to move by exercising actual physical control over it. The person must cause the vehicle to move, but the movement may be slight." Scudder does not cite any controlling or persuasive case or other authority holding that the language in CALCRIM No. 2241 incorrectly states the law.
Contrary to Scudder's assertion, In re Queen T. (1993) 14 Cal.App.4th 1143 (Queen) did not hold that driving under section 23152 or 23153 requires both steering and control of a vehicle. Rather, after quoting section 305's definition of a "driver," Queen quoted People v. Hernandez (1990) 219 Cal.App.3d 1177, 1183 (Hernandez), in which the court stated: "Courts in other states with statutes similar to California's drunk driving statutes have defined 'driving' as steering and controlling a vehicle while in motion [citation], allowing a vehicle to coast without using the engine [citation], and being in actual physical control of the vehicle even though it may not be moving [citation]." (Queen, at p. 1145.) Therefore, Queen and Hernandez, at most, recognized there are other states that have defined "driving" as requiring both steering and control of a vehicle. They did not hold that section 23152 or 23153 requires both steering and control of a vehicle. Even if they had, their statements would have been dicta because the circumstances in those cases involved defendants who did, in fact, steer the vehicle and therefore did not require those courts to address the question of whether control of, absent steering, a vehicle would be sufficient to constitute driving under section 23152 or 23153. In any event, we are not persuaded by any such dicta and decline to hold that steering a vehicle is required for a finding that a defendant was "driving" it under section 23152.
Rather, applying the definition of "driver" under section 305, it appears that moving a vehicle while in actual physical control of that vehicle constitutes "driving"
under section 23152. Therefore, steering a vehicle while making it move may be just one means, albeit the most common means, of exerting actual physical control over a vehicle and therefore "driving" a vehicle within the meaning of section 23152. Neither Queen nor Hernandez supports Scudder's proffered interpretation of "driving" a vehicle and he does otherwise persuade us to adopt his interpretation. On the contrary, Arellano v. Moreno (1973) 33 Cal.App.3d 877, 882-883, in which the court held the defendant to be a "driver" under section 305 because he stood at the rear of the vehicle after pushing it and therefore had actual physical control of it, tends to refute Scudder's argument. Accordingly, he has not carried his burden on appeal to show that CALCRIM No. 2241 incorrectly stated the law that applied to this case.
Our reasoning also applies to section 14601.2.
Scudder also argues the court should have modified CALCRIM No. 2241 to expressly state that merely pushing a car, without steering or otherwise controlling it, cannot constitute "driving" under section 23152, which modification would have addressed his specific defense theory. However, we conclude he forfeited that argument by not requesting below that "pinpoint" instruction on his defense theory. As we stated ante, a court is not required to give sua sponte a "pinpoint" instruction that relates evidence to the defendant's theory of the case. (Anderson, supra, 51 Cal.4th at pp. 996-997; Dennis, supra, 17 Cal.4th at p. 514; San Nicolas, supra, 34 Cal.4th at p. 670.) If a defendant does not request a pinpoint instruction, the defendant forfeits any claim that the court erred by not giving that instruction if the court's other instructions correctly and adequately inform the jury of applicable legal principles relevant to the case. (Williams, supra, 101 Cal.App.3d at p. 719.) Because we conclude CALCRIM No. 2241 correctly and adequately informed the jury of applicable legal principles relevant to this case, including Scudder's defense theory, he forfeited any claim on appeal that the court should have sua sponte modified that instruction to add clarifying or amplifying language that would have more specifically pinpointed legal principles that applied to his defense theory.
III
Instruction with CALCRIM No. 362
Scudder contends the trial court erred by instructing with CALCRIM No. 362 on consciousness of guilt. He argues there was insufficient evidence to support that instruction because the evidence showed he merely denied his guilt of the charged offenses when he stated he was not the driver of his truck.
A
At trial, the prosecution presented evidence that while trying to resist having his blood drawn, Scudder stated he was not driving the truck. The prosecution then requested an instruction with CALCRIM No. 362 on consciousness of guilt, as follows:
"If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt.The prosecution argued there was evidence that Scudder made a false statement that he was not driving, thereby indicating consciousness of guilt.
"If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
Scudder objected to instruction with CALCRIM No. 362, arguing he only asserted he had not committed the crime(s) and therefore merely asserted his right to state he was not guilty. The court disagreed with Scudder, noting that he stated he did not drive the vehicle and the prosecution presented evidence showing that he did drive it. Therefore, the court overruled his objection and gave CALCRIM No. 362.
B
Scudder argues that because a consciousness of guilt instruction is appropriate only where there is some evidence that, if believed by the jury, would sufficiently support the inference suggested in the instruction and there was no evidence in the record that he made a false or misleading statement, the court erred by giving CALCRIM No. 362. We disagree.
"A trial court properly gives consciousness of guilt instructions where there is some evidence in the record that, if believed by the jury, would sufficiently support the inference suggested in the instructions." (People v. Bowman (2011) 202 Cal.App.4th 353, 366 (Bowman).) Therefore, before a consciousness of guilt instruction may be given, there must be evidence in the record which, if believed by the jury, would support the suggested inference. (People v. Sadler (1979) 24 Cal.3d 671, 681 (Sadler).)
Based on our review of the record, there is substantial evidence to support an inference by the jury that Scudder made a false or misleading statement that he was not driving the truck. Specifically, while Scudder was trying to avoid having his blood drawn, he stated to the phlebotomist that he was not the driver of the truck. However, the prosecution presented contrary evidence showing that Scudder was, in fact, the driver of the truck. In particular, Bellon testified that Scudder initially exited from the driver's side of the truck and later entered the truck and drove it away. Furthermore, Officer Gonzalez testified that Morales initially stated that she was the truck's driver, but after Scudder was placed under arrest, she admitted she was a passenger in the truck. Because there is substantial evidence showing that Scudder stated he was not the truck's driver despite other evidence showing that he was, in fact, its driver, there is substantial evidence to support an inference by the jury that he made a false or misleading statement when he stated he was not its driver. Accordingly, the court properly instructed with CALCRIM No. 362 on consciousness of guilt. (Bowman, supra, 202 Cal.App.4th at pp. 365-366; Sadler, supra, 24 Cal.3d at p. 681.) To the extent, Scudder argues a false or misleading statement inference can be drawn only from inconsistent statements or admissions made by a defendant, he is incorrect and does not cite any case or other authority so holding.
IV
Conditions of Mandatory Supervision
Scudder contends the trial court erred by imposing as conditions of his mandatory supervision an electronic search condition and a residence and employment approval condition.
A
The trial court sentenced Scudder to three years on count 1, splitting that sentence pursuant to Penal Code section 1170, subdivision (h)(5)(B), such that he would spend two years in custody and then one year on mandatory supervision. It also imposed certain conditions of mandatory supervision, including: (1) 1(m) "[s]ubmit person, vehicle, residence, property, personal effects, computers, and recordable media . . . to search at any time with or without a warrant, and with or without reasonable cause, when required by P.O. or law enforcement officer"; and (2) 7(g) "[o]btain P.O. approval as to residence [and] employment." Scudder did not object to those conditions.
B
The imposition of mandatory supervision following a county jail commitment pursuant to Penal Code section 1170, subdivision (h)(5)(B), split sentence is not a grant of probation or a conditional sentence, but is instead akin to incarceration in a state prison. (People v. Martinez (2014) 226 Cal.App.4th 759, 763 (Martinez).) Mandatory supervision is more similar to parole than probation. (People v. Fandinola (2013) 221 Cal.App.4th 1415, 1422.) We therefore analyze the terms or conditions of supervised release under standards parallel to those applied to terms of parole. (Martinez, at p. 763.)
The fundamental goals of parole are to help individuals reintegrate into society as constructive individuals, to end criminal careers through rehabilitation, and to help individuals become self-supporting. (Martinez, supra, 226 Cal.App.4th at p. 763.) To achieve those goals, courts may impose any condition reasonably related to parole supervision. (In re Stevens (2004) 119 Cal.App.4th 1228, 1233.) The same criteria used to assess the constitutionality of conditions of probation are used to assess conditions of parole. (Ibid.) Accordingly, although the scope of permissible conditions of mandatory supervision may exceed the scope of permissible conditions of probation in certain circumstances, we evaluate the reasonableness of specific conditions of mandatory supervision using the same three-prong test set forth in People v. Lent (1975) 15 Cal.3d 481 (Lent) that is used to evaluate probation conditions. (Martinez, at pp. 763-764.) Under Lent, a condition of probation or mandatory supervision is reasonable unless it: (1) has no relationship to the crime of which the defendant 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, at p. 486; People v. Moran (2016) 1 Cal.5th 398, 403; People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) We review contentions that a specific condition imposed by the sentencing court is unreasonable for abuse of discretion. (Martinez, at p. 764; Olguin, at p. 379.)
Apart from the reasonableness of conditions of probation or mandatory supervision, we consider their constitutionality de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723 (Appleton).) A condition that restricts a defendant's exercise of constitutional rights is invalid unless it is narrowly tailored to the purpose of that condition. (Olguin, supra, 45 Cal.4th at p. 384.) A condition is unconstitutionally vague if it is not sufficiently precise in the circumstances of the case for a defendant or any ordinary person to understand what conduct is prohibited or required for a court to know whether the condition has been violated. (In re Byron B. (2004) 119 Cal.App.4th 1013, 1018; People v. Lopez (1998) 66 Cal.App.4th 615, 630.) If a condition is unconstitutionally overbroad or vague, we may modify it to make it comply with the law. (In re Sheena K. (2007) 40 Cal.4th 875, 888 (Sheena K.).)
A defendant who believes a proposed condition of probation or mandatory supervision is unreasonable or overbroad must timely object in the trial court so that the court has an opportunity to modify the condition if necessary. (People v. Welch (1993) 5 Cal.4th 228, 234-235 (Welch).) In general, if a defendant does not timely object to a condition, he or she forfeits that challenge on appeal. (Ibid.) Nevertheless, even without an objection below, a defendant may raise a "facial" constitutional challenge that involves a pure question of law that can be resolved without any reference to the trial court record. (Id. at p. 235; Sheena K., supra, 40 Cal.4th at pp. 887-889.) However, that exception to the forfeiture rule does not apply to reasonableness challenges under Lent or to "as-applied" constitutional challenges because in those cases a reviewing court must review the record to determine whether the condition relates to the defendant's previous criminal activity. (Welch, at p. 237.)
C
Electronic Search Condition
Scudder asserts that the electronic search condition of his mandatory supervision is unconstitutionally overbroad as applied in his case. In particular, he argues that the trial court did not provide any rationale for imposing that condition, that there are no limits on the types of devices or information contained thereon, and that the condition is not narrowly tailored to its purpose. However, as the People assert, those arguments are forfeited based on his failure to object below on those grounds. Each of his arguments challenge the electronic search condition either on its reasonableness or constitutionality as applied in his case. Because those challenges would require us to review the trial court record in this case, they do not involve pure questions of law and therefore are not facial constitutional challenges that can be raised on appeal without objections on those grounds below. (Welch, supra, 5 Cal.4th at pp. 234-235; Sheena K., supra, 40 Cal.4th at pp. 887-889.) Accordingly, we conclude Scudder has forfeited his contention on appeal that the electronic search condition is unreasonable or unconstitutionally overbroad. (Welch, at pp. 234-235; Sheena K., at pp. 887-889.) None of the cases cited by Scudder involved facial constitutional challenges (i.e., pure questions of law) and therefore they are inapposite to this case and do not persuade us to reach a contrary conclusion. (See, e.g., Appleton, supra, 245 Cal.App.4th 717; In re Malik J. (2015) 240 Cal.App.4th 896; In re P.O. (2016) 246 Cal.App.4th 288.)
As the parties note, the question of the constitutionality of electronic search conditions is currently pending before the California Supreme Court in, inter alia, In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted February 17, 2016, S230923; In re Patrick F. (2015) 242 Cal.App.4th 104, review granted February 17, 2016, S231428; In re Alejandro R. (2015) 243 Cal.App.4th 556, review granted March 9, 2016, S232240; and In re Q.R. (2017) 7 Cal.App.5th 1231, review granted April 12, 2017, S240222.
D
Residence and Employment Approval Condition
Scudder asserts that the residence and employment approval condition of his mandatory supervision is unconstitutionally vague and overbroad. In particular, he argues that condition violates his constitutional rights to travel and freedom of association because it gives the supervising probation officer unfettered discretion over his choice of residence and employment and approval could be arbitrarily withheld for any reason. He argues that condition does not relate to the crimes of which he was convicted or to conduct that is criminal and it is not narrowly tailored to further a compelling state interest in reformation and rehabilitation.
To evaluate Scudder's arguments that the residence and employment approval condition is not narrowly tailored to its purpose (e.g., to reform or rehabilitate him or to deter future criminality) and does not relate to the crimes of which he was convicted or to conduct that is criminal, we would be required to review the trial court record in this case and consider, inter alia, Scudder's instant crimes, his criminal record, and personal circumstances. Accordingly, his challenge to constitutionality of the residence and employment approval condition is an as-applied challenge, which requires an objection on that ground below, and not a facial challenge, which does not require an objection below. Accordingly, as with the electronic search condition discussed ante, we conclude Scudder forfeited his challenge to the constitutionality of the residence and employment approval condition by not objecting below. (Welch, supra, 5 Cal.4th at pp. 234-235; Sheena K., supra, 40 Cal.4th at pp. 887-889.)
Even if we were to determine that Scudder's contention raises a facial challenge to the constitutionality of the residence and employment approval condition and therefore he did not forfeit that contention, we nevertheless would conclude that condition is not unconstitutionally vague or overbroad. In support of his contention, he primarily relies on People v. Bauer (1989) 211 Cal.App.3d 937 (Bauer), in which the court held that a residence approval condition of probation was unconstitutionally overbroad because it gave the probation officer the power to forbid the defendant from living with or near his parents, who apparently were considered overprotective. (Id. at p. 944.) The court noted that there was nothing in the record showing that the defendant's home life contributed to the crimes of which he was convicted or that living at home reasonably related to future criminality. (Ibid.)
This case is distinguishable from Bauer. Unlike the condition in Bauer, the condition here is not designed to banish Scudder or to prevent him from living with or near family or working where he wants. Also, considering Scudder's apparent alcohol dependency, long criminal history of driving while under the influence of alcohol, and poor past performance on probation, the environment in which Scudder lives or works may directly affect his rehabilitation. (Cf. People v. Stapleton (2017) 9 Cal.App.5th 989, 995 (Stapleton) [same regarding defendant with history of mental health and substance abuse issues].) Without the condition requiring the probation officer's approval, Scudder could choose to live or work where alcohol is commonly used or sold, providing him with easy accessibility to alcohol and/or an environment that promotes or encourages the use of alcohol. A probation officer supervising a defendant like Scudder "must reasonably know where he resides [and works] and with whom he is associating in deterring future criminality." (Id. at p. 996.) Because lifestyle choices regarding residency and employment can heighten the risk of alcohol use and/or driving under the influence of alcohol, a condition requiring the probation officer's approval of Scudder's residence and employment choices is closely tailored toward the goals of maintaining his sobriety and/or deterring his future criminality. Therefore, the approval condition will allow Scudder's probation officer to effectively supervise him, and it is reasonably related to both preventing future criminality and serving the compelling state interest in his reformation and rehabilitation. (Olguin, supra, 45 Cal.4th at pp. 380-381.)
People v. Burden (1988) 205 Cal.App.3d 1277, cited by Scudder, is also factually inapposite to this case and does not otherwise persuade us to reach a contrary conclusion. Unlike this case, Burden did not involve a facial challenge to conditions of probation, but instead involved a challenge to their reasonableness under the three-prong test set forth in Lent, supra, 15 Cal.3d 481. (Burden, at p. 1281.) Also, in Burden, the challenged probation condition prohibited the defendant from being employed in certain types of jobs (i.e., outside or commissioned sales jobs). (Id. at p. 1279.) In this case, the instant challenged condition of mandatory supervision did not prohibit Scudder from being employed in any particular job or types of jobs, but merely required his probation officer's approval of his employment, which approval may not be unreasonably withheld.
Accordingly, the residence and employment approval condition is necessary in these circumstances to aid in Scudder's rehabilitation and not to banish him from any residence, workplace, or geographic location. Because where Scudder lives and works will directly affect his rehabilitation and future criminality, that condition properly serves the state's interest in reformation and rehabilitation. (Cf. Stapleton, supra, 9 Cal.App.5th at p. 996 [same].) The record does not contain any evidence showing Scudder's place of residence or employment could be disapproved for any reason or that he could not reasonably find a place of residence or employment with that approval condition.
Furthermore, Bauer was issued before Olguin, in which the California Supreme Court stated that a "condition of probation that enables a probation officer to supervise his or her charges effectively is . . . 'reasonably related to future criminality.' " (Olguin, supra, 45 Cal.4th at pp. 380-381.) Importantly, Olguin stated: "A probation condition should be given 'the meaning that would appear to a reasonable, objective reader.' " (Id. at p. 382.) Accordingly, as the court reasoned in Stapleton, "we view the residence [and employment] approval condition here in light of Olguin and presume a probation officer will not withhold approval for irrational or capricious reasons. [Citation.] A probation officer cannot issue directives that are not reasonable in light of the authority granted to the officer by the court. Thus, a probation officer cannot use the residence [and employment] condition to arbitrarily disapprove a defendant's place of residence [or employment]. The condition does not grant a probation officer the power to issue arbitrary or capricious directives that the court itself could not order." (Stapleton, supra, 9 Cal.5th at pp. 996-997.) Therefore, we reject Scudder's assertion that the residence and employment approval condition of his mandatory supervision gives the probation officer unfettered discretion or otherwise is, on its face, unconstitutionally vague or overbroad. We cannot conclude as a matter of law that the residence and employment approval condition of mandatory supervision is facially unconstitutional in the circumstances of this case or in all cases.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: BENKE, Acting P. J. AARON, J.