Opinion
D071928
04-26-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES MICHAEL ALBERTSON, Defendant and Appellant.
Bruce L. Kotler, under appointment 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, Charles C. Ragland and Stephanie H. Chow, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE365580) APPEAL from a judgment and order of the Superior Court of San Diego County, Herbert J. Exarhos, Judge. Affirmed. Bruce L. Kotler, under appointment 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, Charles C. Ragland and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury found James Michael Albertson guilty of vehicular burglary. (Pen. Code, § 459.) The trial court imposed a split sentence of four years in jail followed by three years of mandatory supervision. (Pen. Code, § 1170, subd. (h)(5).)
Albertson appeals, contending we must reverse the judgment because the court erred by failing to sua sponte instruct the jury on the lesser included offense of vehicle tampering. (Veh. Code, § 10852.) He also contends two conditions of the order granting him mandatory supervision are unconstitutionally overbroad: one requiring probation officer approval of his residence and one requiring him to report contacts with law enforcement to his probation officer.
We conclude Albertson has not established the evidence before the court warranted an instruction on vehicle tampering. We further conclude he has not established the challenged conditions of mandatory supervision were overbroad. We therefore affirm the judgment and order.
II
BACKGROUND
The victim parked his car in a parking structure for about five minutes while he completed an errand. Before he left to complete the errand, he locked the car. The driver's side door lock on the car did not function properly because the victim had broken a key off in the lock. Nonetheless, the door could still be locked such that it would not open when somebody pulled on the door latch. To unlock the door, the victim would ordinarily insert a regular, nonbroken key into the lock and twist it as a normal lock. However, even a pen, or some other foreign object, could function as a quasi-key if applied with sufficient twisting pressure.
To lock the car's doors, the victim would ordinarily open the driver's side door, press the button on the inside of the door to lock the vehicle, then close the door. The car's lights would flash after the door closed, indicating the car's doors were locked. Security video corroborated the victim's recollection that the lights had flashed, indicating locked doors, when the victim left his car. The victim also recalled hearing the locks engage.
When the victim returned to his vehicle after completing his errand, he noticed the car was unlocked and his cell phone and vaping device had disappeared. Security footage showed, while the victim was completing his errand, Albertson approached the victim's car, attempted unsuccessfully for 40 seconds to enter the car through the passenger side door, went to the driver's side door, and gained entry after fiddling with the door for 30 seconds.
III
DISCUSSION
A
Albertson contends the court erred by failing to sua sponte instruct the jury on the lesser included offense of vehicle tampering under Vehicle Code section 10852. (People v. Mooney (1983) 145 Cal.App.3d 502, 505 [vehicular burglary necessarily includes vehicle tampering].) A trial court must instruct the jury on all lesser included offenses which find substantial support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) A defendant commits vehicular burglary when he steals from a locked vehicle, but only vehicle tampering when he steals from an unlocked vehicle. (Mooney, supra, at p. 505.) When there is "no evidence to raise a reasonable doubt whether [a vehicle] was locked ... the court need not instruct on [tampering] where substantial evidence would support only a verdict of guilt on [burglary]." (Id. at p. 506.)
Vehicle Code section 10852 provides: "No person shall either individually or in association with one or more persons, willfully injure or tamper with any vehicle or the contents thereof or break or remove any part of a vehicle without the consent of the owner."
Here, the evidence did not raise a reasonable doubt the victim's car's door was locked, and substantial evidence supported a guilty verdict on the burglary charge. The victim testified he locked the car's doors. In addition, video evidence showed the car's lights flash after the victim exited the car, and the victim testified the lights would not have flashed at all had the car been unlocked. The victim also recalled hearing the locks engage, and security footage showed Albertson fiddled with the driver's side door for 30 seconds before he was able to open it and enter the car.
Although there was inconsistent evidence as to whether the car's lights would flash once or twice to signal the car's doors were locked, this evidence did not raise a reasonable doubt the doors were locked in light of the other uncontroverted evidence indicating the car's lights would not have flashed at all had the car been unlocked. Similarly, evidence Albertson had no burglary tools on his person did not raise a reasonable doubt the doors were locked in light of the other uncontroverted evidence any key, or even a pen, would have opened the door.
Even if the evidence had warranted an instruction on vehicle tampering, the error was harmless. Albertson acknowledges the trial result turned entirely on whether the driver's side door was locked or unlocked when Albertson entered the victim's car. The jury necessarily resolved this question against Albertson when it convicted him of burglary. Failure to instruct on a lesser included offense does not require reversal of the judgment when it can be determined the factual question posed by the omitted instruction was necessarily resolved against the defendant under other, properly given instructions. (People v. Bradford (1997) 14 Cal.4th 1005, 1056.)
B
Albertson next contends two conditions of the order granting him mandatory supervision are unconstitutionally overbroad: one requiring probation officer approval of his residence and one requiring him to report contacts with law enforcement to his probation officer. We analyze the validity of mandatory supervision terms under the same standards applied to terms of probation. (People v. Martinez (2014) 226 Cal.App.4th 759, 763-764.) "Whether a term of probation is unconstitutionally vague or overbroad presents a question of law, which we review de novo." (People v. Stapleton (2017) 9 Cal.App.5th 989, 993 (Stapleton).) " '[A] probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.' " (People v. Olguin (2008) 45 Cal.4th 375, 384, quoting In re Sheena K. (2007) 40 Cal.4th 875, 890.) " 'A restriction is unconstitutionally overbroad ... if it (1) "impinge[s] on constitutional rights," and (2) is not "tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation." [Citations.] The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.' " (Stapleton, supra, at p. 993, quoting In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
1
Albertson contends the residency approval condition is unconstitutionally overbroad because it infringes on his right of privacy and his freedom to associate and travel. A condition of mandatory supervision may restrict these rights so long as it is reasonably related to reformation and rehabilitation. (Stapleton, supra, 9 Cal.App.5th at p. 995.) The condition requiring residency approval is reasonably related to Albertson's reformation and rehabilitation because of his objectively assessed need for intensive monitoring and case planning in the areas of criminal opportunity and leisure and recreation to effectively address his long history of substance abuse and related recidivism. The residency condition serves this need "because where he lives will directly affect his rehabilitation." (Id. at p. 996.) "Without a limitation placed by the residence conditions or without supervision, for example, defendant could opt to live in a residence where drugs are used or sold. A probation officer supervising a person like defendant must reasonably know where he resides and with whom he is associating in deterring future criminality." (Id. at pp. 995-996; see People v. Arevalo (2018) 19 Cal.App.5th 652, 658 ["The approval condition allows the probation officer to supervise [the defendant]'s residence, because the nature of her crime suggests a need for oversight. The probation officer can limit her exposure to sources of temptation for future criminality by, for example, not approving residences in close proximity to other drug dealers. Living in an area having easy access to drug suppliers could negatively affect her rehabilitation."].)
Contrary to Albertson's assertions, "there is no evidence to suggest [his] residence could be disapproved for any reason or that it would be impractical for [him] to find a place of residence with the notice and approval requirements." (Stapleton, supra, 9 Cal.App.5th at p. 996.) Moreover, we give a probation condition the meaning apparent to a reasonable, objective reader. (Ibid.) We review the residency approval condition in this light "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 condition to arbitrarily disapprove a defendant's place of residence. The condition does not grant a probation officer the power to issue arbitrary or capricious directives that the court itself could not order." (Id. at pp. 996-997.) Albertson, therefore, has not established the residency approval condition is unconstitutionally overbroad.
2
Albertson also contends the law enforcement contact condition is overbroad because it restricts his freedom of travel and association. More particularly, he complains the condition is not limited to arrest-like situations and instead encompasses "even the most inconsequential or positive contacts with law enforcement." We review this contention under the same standards discussed in the preceding part.
The law enforcement condition specifically requires Albertson to provide his true name, address, and date of birth if contacted by law enforcement, to report a contact or arrest in writing to the probation officer within seven days, and to include in his report the date of contact/arrest, charges, if any, and the name of the law enforcement agency. Giving the condition the meaning apparent to a reasonable, objective reader (Stapleton, supra, 9 Cal.App.5th at p. 996), the condition requires Albertson to cooperate with and identify himself to law enforcement officers if contacted by them, and to report such contact or arrest within a specified time with certain information about the contact or arrest. The condition involves more than a passing greeting with a law enforcement officer on the street or at an event and instead implies a contact related to law enforcement or investigation activities. Accordingly, Albertson has not established the condition is unconstitutionally overbroad.
Given our conclusion in this part and the preceding part, we need not decide whether Albertson forfeited his constitutional claims by failing to object to the conditions below. --------
IV
DISPOSITION
The judgment and order are affirmed.
McCONNELL, P. J. WE CONCUR: O'ROURKE, J. GUERRERO, J.