Opinion
D070143
03-17-2017
THE PEOPLE, Plaintiff and Respondent, v. KEDRIN HAAS, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT THE COURT
It is ordered that the opinion filed on March 17, 2017 be modified as follows:
On page 12, replace the text of footnote 2 with the following:
2 We similarly conclude defendant was not deprived of effective assistance of counsel as a result of his counsel's failure to request a "claim-of-right" pinpoint instruction because it is not available "if the defendant attempted to conceal the taking." (See CALCRIM No. 1863; People v. Fenderson (2010) 188 Cal.App.4th 625, 643 [quoting CALCRIM No. 1863 in noting that the " 'claim-of-right defense does not apply if the defendant attempted to conceal the taking at the time it occurred or after the taking was discovered' " (italics omitted)].) Here, the record shows defendant went to his parents' house, despite the existence of a restraining order he repeatedly had violated, while his parents were away on vacation, broke their front gate, went
to the back of their house and used a screwdriver to pry open their door, after he had removed the screen. When the alarm sounded, defendant fled. In light of such evidence, defense counsel was not ineffective for failing to request a claim-of-right instruction. In addition, we note defendant was also not entitled to this instruction because he admitted he went to his parents' house to get "food," as opposed to a "specific" item of property he allegedly believed he was entitled to obtain. (See CALCRIM No. 1863; see also People v. Covarrubias (2016) 1 Cal.5th 838, 874 [rejecting a defendant's contention he was entitled to a claim-of-right instruction when defendant merely stated he wanted to " 'to go pick up some things that were left in the [victims'] house' " because the good faith belief in a claim of right "must relate to specific property"].)
There is no change in the judgment.
The petition for rehearing is denied.
McCONNELL, P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. SCN353657) APPEAL from a judgment of the Superior Court of San Diego County, Richard R. Monroy, Judge. Affirmed. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Kedrin Haas guilty of attempted first degree burglary (Pen. Code, §§ 459 & 664; count 1), and disobeying a court order (§ 166, subd. (a)(4); count 2). The court sentenced defendant to three years' formal probation.
All further statutory references are to the Penal Code.
On appeal, defendant contends that the court erred when it failed to instruct the jury on the alleged lesser included and lesser related offense of attempted trespass, and when it refused to give a similar pinpoint instruction, in connection with count 1; that the prosecutor prejudicially erred during closing argument by misstating the beyond reasonable doubt standard of proof; and that certain probation conditions imposed on him are allegedly overbroad. Affirmed.
FACTUAL BACKGROUND
In 2013, defendant was living in a motorhome on his parents' property located in Valley Center, a community in the County of San Diego. Defendant's parents, Abby Gail Haas and William Haas, believed defendant's living arrangement was temporary.
In March 2013, defendant's behavior became erratic. He started throwing things and punching holes in walls and doors, staying up "all hours of the day and night" and verbally abusing his parents. Concerned defendant was "drinking" or "using some kind of substance," his parents became frightened and, thus, felt constrained to call law enforcement. That same month, they obtained a restraining order against defendant. The restraining order required defendant to avoid contact with his parents, to move off their property (hereinafter sometimes referred to as the Haas property) and to stay away from their home.
Despite the restraining order, defendant continued to contact his parents at their property. When defendant would return to the Haas property, he often asked for money to buy food; or claimed he could not leave because his car had stopped running or was out of gas; or stated he needed a tool for work; or was there to pick up some of his belongings he allegedly had left behind. On some, but not all occasions, when defendant violated the restraining order, his parents called law enforcement. Other times they tried to accommodate defendant's requests, but also asked him to leave once he got what he needed.
The instant case involves an incident that began on December 10, 2015. On that day, defendant went to his parents' home and asked for money, food and clothing because he was then homeless. Defendant's parents told him to leave. When defendant refused, they called law enforcement. Although dispatched, law enforcement was unable to locate defendant that day.
San Diego County Sheriff Deputy Travis Golling testified that he was on duty on December 16, 2015, when he was dispatched to the Haas property after a house alarm had been activated. Defendant's parents were away on vacation. Prior to this call, Deputy Golling estimated he had contacted defendant at the Haas property "at least three or four times" because of defendant's violation of the restraining order.
As Deputy Golling approached the front entry gate to the property, he noticed the gate was locked but its hinge appeared broken. With his sergeant, Deputy Golling next checked the home "to see if there were any windows or doors open or ajar or busted or shattered to determine whether or not . . . someone had actually possibly opened the door or tried to gain entrance."
On the back side of the Haas property, Deputy Golling saw that one of the glass doors of a double-pane door was off its slide or track and was "a few inches" ajar. He also found the screen door was removed and was leaning against the home. Another San Diego County Deputy Sheriff, Scott Crane, also responded to the call. Once inside, they all searched the home, found nobody inside and concluded "nothing looked out of place."
As they were in the process of securing the home including the glass door, Deputy Golling saw a flat-head screwdriver laying on a patio table. Deputy Golling next carefully checked the glass door and found "pry marks" on its frame that he estimated were at least two-inches long. Deputy Golling testified the "pry marks" likely resulted from someone wedging a screwdriver between the glass door and its frame in order to pry open the door.
As Deputy Golling secured the property, he contacted a neighbor of defendant's parents, Jerry Thomas. Deputy Crane was present during this conversation. Deputy Crane testified that Thomas "explained . . . the situation" and gave a description of the suspect and the vehicle the suspect was driving. Thomas also told the deputies that he had seen this same vehicle parked on a side street, near an orange grove, about a half-mile away from the Haas property.
Deputy Crane next drove to the location described by Thomas. Deputy Crane found the vehicle described by the witness, but found it empty. Because the vehicle's registration was expired by more than six months, Deputy Crane called for a tow truck in order to impound the vehicle. As Deputy Crane waited for the tow truck, a man later identified as defendant emerged from the orange grove. According to Deputy Crane, the man was carrying a "blow torch" and a "chain saw-type tool." Deputy Crane informed dispatch he had contacted defendant.
Deputy Golling went to the location where Deputy Crane had contacted defendant. When Deputy Golling arrived, he found defendant standing next to the vehicle previously described by Thomas. Deputy Golling arrested defendant for violation of the restraining order.
As Deputy Golling was driving defendant to the Vista Detention Facility, defendant made what Deputy Golling described as a "spontaneous statement" about how his parents' home was "his and that he has a right to be there," or words to that effect. Once at the detention facility, Deputy Golling informed defendant of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
After being informed of his Miranda rights, defendant indicated he wanted to give a statement to Deputy Golling. Defendant told Deputy Golling he was at his parents' home to "return tools, service the door, and to get food." As a result of defendant's statement, Deputy Golling arrested defendant for residential burglary.
DISCUSSION
I
Instructional Error
A. Lesser Included Offense
Defendant contends the court erred when it failed to instruct on attempted trespassing as a lesser included offense of attempted burglary. The record shows defense counsel asked for this instruction over the prosecution's objection. The defense argued defendant lacked the requisite intent to commit theft based on the fact that, on previous occasions when defendant went to his parents' home in violation of the restraining order, he merely borrowed items (i.e., tools) and always brought them back, and allegedly never stole anything.
The record further shows after hearing argument of, and considering case authority provided by, counsel, the court denied the requested instruction. In so doing, the court relied on what it found was a "clear piece of evidence," namely defendant's statement of "what he intended to do when he went in the house, which was to take food." The court reiterated that the facts showed "the house was secured, there was no permission given to [defendant], that the secured nature of the house was breached, and, in fact, one can infer that, from the state of the evidence before [the court], that somebody actually entered" the home, even though the court recognized defendant only had been charged with attempted burglary. Under the circumstances, the court thus found attempted trespass was not a lesser included offense of attempted burglary.
1. Guiding Principles
A trial court is required to instruct on all lesser included offenses supported by substantial evidence. The instruction on a lesser included offense must be given when there is " ' "substantial evidence raising a question as to whether all of the elements of the charged offense are present." ' " (People v. Cole (2004) 33 Cal.4th 1158, 1215.) In this context, substantial evidence is "evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.)
"[T]wo tests [are applied] in determining whether an uncharged offense is necessarily included within a charged offense: the 'elements' test and the 'accusatory pleading' test. [Citation.] The elements test is satisfied if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, such that all legal elements of the lesser offense are also elements of the greater. [Citation.] In other words, ' " '[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.' " ' [Citations.] Under the accusatory pleading test, a lesser offense is included within the greater charged offense if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense." (People v. Bailey (2012) 54 Cal.4th 740, 748.) We apply a de novo standard of review in determining "whether a trial court erroneously failed to instruct on a lesser included offense. [Citation.]" (People v. Trujeque (2015) 61 Cal.4th 227, 271.)
2. Analysis
Here, defendant concedes that attempted trespassing was not a lesser included offense of attempted burglary under the "elements" test because trespass requires entry without consent of the owner and burglary does not. (See People v. Lohbauer (1981) 29 Cal.3d 364, 369 [noting entry into a dwelling without the consent of an owner "is not a lesser offense which necessarily is included within a violation of [the burglary statute] under the foregoing elements test" because a "burglary may be committed by one who has permission to enter a dwelling"].)
Defendant nonetheless contends attempted trespassing is a lesser included offense of attempted burglary under the "accusatory pleading" test because of the charging language in count 1 of the information. It provided: "On or about December 16, 2015, Kedrin Haas did unlawfully attempt to enter a building with the intent to commit theft, in violation of . . . sections 459 and . . . 664." (Capitalization omitted, italics added.) Defendant contends use of the word "unlawfully" to modify the words "attempt to enter a building" made attempted trespass a lesser included offense of attempted burglary because the word "unlawfully" suggested the entry was "unlawful" or unauthorized. We disagree.
On the one hand, residential burglary is the entry of a dwelling with the intent to commit a felony. (§§ 459 & 460, subd. (a).) Criminal trespass (also known as "unauthorized entry"), on the other hand, is the entry of a residence without the owner's consent. (See § 602.5, subds. (a) & (b).) In the crime of burglary, it is the defendant's felonious intent, not the absence of consent or permission, that renders an entry unlawful. (See People v. Salemme (1992) 2 Cal.App.4th 775, 780 [noting the " 'law . . . is that one [who enters a structure with the intent to commit petty theft or a felony] may be convicted of burglary even if he [or she] enters with consent,' " as long as he or she does not have a possessory right to enter].)
We thus independently conclude the words "unlawfully enter" are not synonymous with the words "enter without consent," as defendant contends. Quite simply, count 1 of the information did not allege defendant "unlawfully" entered his parents' home "without their consent." Instead, as summarized ante, count 1 alleged defendant "unlawfully attempt[ed] to enter a building [i.e., his parents' home] with the intent to commit theft." (Italics added.) Under the allegations in the information, it was defendant's intent to steal that made his entry unlawful, not his parents' lack of consent.
Because the information did not allege a trespass under the accusatory pleading test, the court was not required to instruct on attempted trespass as a lesser included offense of attempted burglary. (See People v. Birks (1998) 19 Cal.4th 108, 118, fn. 8 (Birks) [noting it is "well settled that trespass is not a lesser necessarily included offense of burglary . . . because burglary . . . can be perpetrated without committing any form of criminal trespass," even when the burglary allegations provide that the defendant " 'did willfully and unlawfully enter a commercial building . . . with intent to commit larceny and any felony' " (italics added)].)
B. Lesser Related Offense
Defendant alternatively contends that even if attempted trespass was not a lesser included offense of attempted burglary, the court nonetheless was required to instruct the jury on this uncharged offense because the defense theorized that, if defendant was guilty of "anything" in connection with the attempted entry, it was only of attempted trespass. We (again) disagree.
Our high court in Birks, supra, concluded that a defendant has no "affirmative right to insist on jury consideration of nonincluded offenses without the prosecution's consent." (Birks, supra, 19 Cal.4th at p. 136.) This is because, among other flaws, allowing a defendant to unilaterally place an uncharged and nonincluded offense before the jury potentially "usurp[s] the prosecution's exclusive charging discretion, and may therefore violate the Constitution's separation of powers clause." (Id. at p. 113.) In contrast to a lesser related offense, Birks reasoned that a lesser included offense was subsumed by the charged crime, and as such, was a "general principle of law" requiring instruction to the jury. (Id. at p. 118; see also People v. Foster (2010) 50 Cal.4th 1301, 1343-1344 [concluding because "trespass is a lesser related offense, not a lesser included offense, of burglary," the defendant has no constitutional right "to compel the giving of lesser-related-offense instructions," "[r]egardless of defendant's legal and factual theories concerning how his [or her] conduct may have constituted trespass"]; People v. Schmeck (2005) 37 Cal.4th 240, 292 [concluding "a trial court has no duty to instruct on an uncharged lesser related offense when requested to do so by the defendant"], disapproved on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 637-638.)
We also reject defendant's contention—raised for the first time on appeal—that the court erred in failing to give attempted trespass as a pinpoint instruction. It is axiomatic that a trial court "need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence [citation]." (People v. Bolden (2002) 29 Cal.4th 515, 558 (Bolden).)
We independently conclude the requested pinpoint instruction of attempted trespass was not supported by substantial evidence. Indeed, as summarized ante, the record shows defendant admitted he attempted to enter his parents' home on December 16 in order to take food. Although the record shows the defense in closing argued that, at most, defendant was guilty of mere attempted trespass because he allegedly lacked the intent to commit theft when he went to his parents' home, ostensibly broke the front gate outside, made his way to the back of the home and used a screwdriver to pry open the sliding glass door, in light of defendant's concession we conclude the record is bereft of evidence, much less substantial evidence, to warrant a pinpoint instruction on attempted trespass. (See Bolden, supra, 29 Cal.4th at p. 558; see also People v. Stanley (2006) 39 Cal.4th 913, 946 [recognizing a pinpoint instruction is required only when there is substantial evidence to support it and when such an instruction is not duplicative or argumentative].)
In any event, we conclude the failure to give a pinpoint instruction on attempted trespass was harmless. Reversal on this ground is required "only if 'the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.' (People v. Watson (1956) 46 Cal.2d 818, 836.)" (People v. Wright (2008) 45 Cal.3d 1126, 1144.)
Here, as noted ante, the defense aggressively argued in closing that defendant was not guilty of burglary because he lacked the requisite intent. What's more, the record shows the jury was instructed that, to find defendant guilty of attempted burglary, the People were required to prove: 1) the "defendant took a direct but ineffective step toward committing burglary" and 2) the "defendant intended to commit burglary." The jury was further instructed that, to find defendant guilty of attempted burglary, the People were required to prove: 1) he entered a building and 2) when he entered, "he intended to commit theft"; and that, because it was alleged "defendant intended to commit theft," the jury could "not find [him] guilty of burglary unless [they] all agree[d] that he intended to commit theft at the time of entry."
In light of the fact the jury found defendant guilty of attempted burglary in count 1 and, thus, rejected his contention he was guilty of mere attempted trespass, we conclude it is not reasonably probable a result more favorable to defendant would have been achieved even if the court had given a pinpoint instruction on attempted trespass.
Given our decision on the merits of this issue, we need not address defendant's alternate contention that he was deprived of effective assistance of counsel by his counsel's failure to request a pinpoint instruction on attempted trespass.
II
Prosecutorial Error
Defendant next contends the prosecutor committed misconduct in rebuttal when the prosecutor argued as follows:
"[Defense c]ounsel just left off talking about beyond a reasonable doubt, and he's right. It is a burden we gladly take on, it's the same burden that is met by juries just like yourselves in courtrooms all across America every single day. It is not an impossible burden. It is not beyond all doubt, beyond any doubt, beyond unreasonable doubt or beyond possible doubt, it's simply beyond what's reasonable. And here that just ultimately boils down to you need to make the reasonable decision here.
"Is it reasonable that he entered and pried open a sliding glass door to his parents' home when they weren't present to do anything other than what he told you he was there to do, and that was to take food?"
The record shows defense counsel neither objected to this argument nor requested the jury be admonished to disregard it. As a consequence, the trial court did not comment on this argument. On appeal, defendant urges his conviction on counts 1 and 2 must be reversed because the prosecutor committed misconduct, and in the alternative, his counsel was constitutionally ineffective for failing to object.
A. Guiding Principles
"Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. (See People v. Mendoza (2007) 42 Cal.4th 686, 702 (Mendoza).) However, 'it is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its . . . obligation to overcome reasonable doubt on all elements [citation].' (People v. Marshall (1996) 13 Cal.4th 799, 831 (Marshall); accord, People v. Hill (1998) 17 Cal.4th 800, 829 (Hill).) To establish such error, bad faith on the prosecutor's part is not required. (Hill, at pp. 822-823.) '[T]he term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.' (Id. at p. 823, fn. 1.)
"When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' (Marshall, supra, 13 Cal.4th at p. 831), there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)" (People v. Centeno (2014) 60 Cal.4th 659, 666-667 (Centeno).)
In Centeno, on which defendant here heavily relies, the prosecutor during rebuttal used a projector to display an image to the jury depicting the outline of California. As the image was being displayed, the prosecutor argued as follows in contending the defendant was guilty of willfully committing a lewd or lascivious act on seven-year-old Jane Doe:
" 'Let me give you a hypothetical. Suppose for me that there is a trial, and in a criminal trial, the issue is what state is this that is [being projected]. [Footnote omitted.] Say you have one witness that comes in and this witness says, hey, I have been to that state, and right next to this state there is a great place where you can go gamble, and have fun, and lose your money. The second witness comes in and says, I have been to this state as well, and there is this great town, it is kind of like on the water, it has got cable cars, a beautiful bridge, and it is called Fran-something, but it is a great little town. You have another witness that comes in and says, I have been to that state, I went to Los Angeles, I went to Hollywood, I saw the Hollywood sign, I saw the Walk of Fame, I put my hands in Clark Gable's handprints in the cement. You have a fourth witness who comes in and says, I have been to that state.'
" 'What you have is you have incomplete information, accurate information, wrong information, San Diego in the north of the state, and missing information, San Bernardino has not even been talked about, but is there a reasonable doubt that this is California? No. You can have missing evidence, you can have questions, you can have inaccurate information and still reach a decision beyond a reasonable doubt. What you are looking at when you are looking at reasonable doubt is you are looking at a world of possibilities. There is the impossible, which you must reject, the impossible [sic] but unreasonable, which you must also reject, and the reasonable possibilities, and your decision has to be in the middle. It has to be based on reason. It has to be a reasonable account. And make no mistake about it, we talked about this in jury selection, you need to look at the entire picture, not one piece of evidence, not one witness. You don't want to look at the tree and ignore the forest. You look at the entire picture to determine if the case has been proven beyond a reasonable doubt.'
"Comparing the prosecution and defense evidence, the prosecutor argued: 'Is it reasonable to believe that a shy, scared child who can't even name the body parts made up an embarrassing, humiliating sexual abuse, came and testified to this in a room full of strangers or the defendant abused Jane Doe. That is what is reasonable, that he abused her. [¶] Is it reasonable to believe that Jane Doe is lying to set-up the defendant for no reason or is the defendant guilty?' She continued: 'Is it reasonable to believe that there is an innocent explanation for a grown man laying on a seven year old? No, that is not reasonable. Is it reasonable to believe that there is an innocent explanation for the defendant taking his penis out of his pants when he's on top of a seven-year-old child? No, that is not reasonable. Is it reasonable to believe that the defendant is being set-up in what is really a very unsophisticated conspiracy led by an officer who has never met the defendant or he['s] good for it? That is what is reasonable. He's good for it.' " (Centeno, supra, 60 Cal.4th at pp. 665-666.)
The Centeno court noted that case law was "replete with innovative but ill-fated attempts to explain the reasonable doubt standard" (Centeno, supra, 60 Cal.4th at p. 667) and that it has "discouraged such ' "experiments" ' by courts and prosecutors" (ibid.). The court concluded the prosecutor's use of the image depicting the outline of California was improper, finding it was "unrelated to the facts of the case" (id. at p. 669) and, thus, was a "flawed way to demonstrate the process of proving guilt beyond a reasonable doubt. These types of images necessarily draw on the jurors' own knowledge rather than evidence presented at trial. They are immediately recognizable and irrefutable. Additionally, such demonstrations trivialize the deliberative process, essentially turning it into a game that encourages the jurors to guess or jump to a conclusion" (ibid.).
In addition, the Centeno court found the use of the image to be "misleading because it failed to accurately reflect the evidence in this case, which was far from definitive. There may certainly be cases in which a few, particularly strong pieces of information (such as scientific evidence or the testimony of a single reliable witness) are sufficiently compelling to prove the defendant guilty beyond a reasonable doubt. (People v. Jones (2013) 57 Cal.4th 899, 961 [fingerprints, carpet fibers, and DNA established defendant's identity as the killer]; People v. Young (2005) 34 Cal.4th 1149, 1181 [testimony of a single witness can be sufficient]; People v. Scott (1978) 21 Cal.3d 284, 296 [same].) This was not such a case. It involved starkly conflicting evidence and required assessments of witness credibility. The crucial evaluation of Jane's testimony involved many factors, including her demeanor at trial, the inconsistencies in her various accounts, her initial denial under oath, her unwillingness to answer numerous questions, the lack of corroborating evidence, defendant's denials, and testimony from Jane's father corroborating defendant's account." (Centeno, 60 Cal.4th at p. 670.)
Next, the Centeno court addressed the prosecutor's repeated use of the word "reasonable" during closing. The court noted this argument "strongly implied that the People's burden was met if its theory was 'reasonable' in light of the facts supporting it." (Centeno, supra, 60 Cal.4th at p. 670.) The court recognized it was "not sufficient that the jury simply believe that a conclusion is reasonable," but rather "[i]t must be convinced that all necessary facts have been proven beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5 ['The government must prove beyond a reasonable doubt every element of a charged offense'].) The prosecutor, however, left the jury with the impression that so long as her interpretation of the evidence was reasonable, the People had met their burden. The failure of the prosecutor's reasoning is manifest." (Centeno, at p. 672.)
B. Analysis
We conclude Centeno is distinguishable from the instant case in several important respects. First, unlike the prosecutor in Centeno, the prosecution in the instant case did not use any impermissible visual aids or images or conduct any "experiments" in attempting to explain the reasonable doubt standard of proof that potentially distracted the jury away from the evidence presented in the case and suggested the jurors draw on their own knowledge to decide the case. (See Centero, supra, 60 Cal.4th at p. 669.) For this reason alone, we conclude Centeno does not inform our decision on this issue.
Second, the prosecutor in Centeno argued that the jury must reject "impossible and unreasonable inferences," "only consider reasonable possibilities" and that its decision "has to be in the middle"—whatever "middle" meant. (See Centeno, supra, 60 Cal.4th at p. 671, italics added.) Next, the prosecutor in Centeno repeatedly argued to the jury that in considering guilt, it merely needed to decide what was "reasonable" under the evidence. (Ibid.) In fact, in reviewing Centeno, we note the prosecutor made this point nine separate times while arguing Jane Doe's story was reasonable and the defendant's was not. (Id. at pp. 671-672.)
Here, the record shows that in attempting to explain the beyond reasonable doubt standard, the prosecutor argued this standard was "not an impossible burden. It is not beyond all doubt, beyond any doubt, beyond unreasonable doubt or beyond possible doubt, it's simply beyond what's reasonable. And here that just ultimately boils down to you need to make the reasonable decision here."
In contrast to the facts of Centeno, we conclude this argument was not improper under People v. Romero (2008) 44 Cal.4th 386 (Romero). There, our high court approved the argument of the prosecutor that the jury must " 'decide what is reasonable to believe versus unreasonable to believe' " and to " 'accept the reasonable and reject the unreasonable' " because "[n]othing in [that] explanation lessened the prosecution's burden of proof," inasmuch as the "prosecution must prove the case beyond a reasonable doubt, not beyond an unreasonable doubt." (Id. at p. 416.)
The prosecutor's next statement is a closer issue. The record shows the prosecutor rhetorically asked the jury whether it was "reasonable" defendant "pried open a sliding glass door to his parents' home when they weren't present to do anything other" than to take food, as he admitted. (Italics added.) We nonetheless conclude this statement also "simply urge[d] the jury to ' "accept the reasonable" ' " (see Centeno, supra, 60 Cal.4th at p. 673, quoting Romero, supra, 44 Cal.4th at p. 416) and tacitly, to reject the unreasonable. In any event, this one statement by the prosecutor in the instant case is a far cry from the repeated statements of the prosecutor in Centeno that clearly suggested a "reasonable" account of the evidence satisfied the prosecution's burden.
Third, unlike the situation in Centeno where the court found the evidence "was far from definitive" as it involved "starkly conflicting evidence and required assessments of witness credibility" concerning the defendant, seven-year-old Jane Doe and Doe's father (who corroborated the defendant's denial of any sexual abuse) (see Centeno, supra, 60 Cal.4th at p. 670), the instant case was relatively straightforward and the evidence of defendant's guilt was strong. Indeed, the record shows defendant admitted to law enforcement that he attempted to enter his parents' home to take food and that he believed he was entitled to enter what he referred to as "his" home. For this additional reason, we conclude that Centeno is inapposite to our case.
Finally, we note that, in other instances during closing argument, the prosecutor in the instant case correctly argued it was the prosecution's burden to prove defendant guilty beyond a reasonable doubt. In addition, the jury was instructed with CALCRIM No. 220 titled "Reasonable Doubt." " 'In the context of the whole argument and the instructions' " (Centeno, supra, Cal.4th at p. 667, quoting Marshall, supra, 13 Cal.4th at p. 831), we conclude there was not a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner (see ibid.). We thus reject defendant's contention the prosecutor erred in explaining the beyond reasonable doubt standard of proof.
The jury was instructed as follows with a slightly modified version of CALCRIM No. 220: "The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." (Italics added.)
Given our decision on the merits of this issue, we again decline to address defendant's alternate contention that he was deprived of effective assistance of counsel by his counsel's failure to object to this portion of the prosecutor's closing argument. Moreover, we reject defendant's additional contention that the cumulative effect of the errors at his trial requires reversal of both of his convictions, even if none were individually prejudicial, inasmuch as we "have found no substantial error in any respect." (See People v. Butler (2009) 46 Cal.4th 847, 885.) --------
III
Probation Conditions
Defendant next contends that probation condition 10(g), requiring him to obtain his probation officer's "approval as to residence [and] employment," is facially unconstitutional.
A. Guiding Principles
A court has broad discretion to impose "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, . . . and generally and specifically for the reformation and rehabilitation of the probationer . . . ." (§ 1203.1, subd. (j); People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) "If a probation condition serves to rehabilitate and protect public safety, the condition may 'impinge upon a constitutional right otherwise enjoyed by the probationer, who is "not entitled to the same degree of constitutional protection as other citizens." ' " (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355 (O'Neil), quoting People v. Lopez (1998) 66 Cal.App.4th 615, 624.)
A condition of probation will not be upheld, however, if it (1) has no relationship to the crime of which the defendant was convicted, (2) relates to conduct that is not criminal, and (3) requires or forbids conduct that is not reasonably related to future criminality. (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin).) Our high court has clarified that this "test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Id. at p. 379.)
However, "[j]udicial discretion to set conditions of probation is further circumscribed by constitutional considerations." (O'Neil, supra, 165 Cal.App.4th at p. 1356.) "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." (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.). "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." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
"Generally, we review the court's imposition of a probation condition for an abuse of discretion." (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) However, we independently review constitutional challenges to a probation condition. (Ibid.)
B. Analysis
Initially, we note the failure to challenge a probation condition in the trial court results in a forfeiture of that issue on appeal. (People v. Welch (1993) 5 Cal.4th 228, 234-235 [extending the forfeiture rule to a claim that probation conditions are unreasonable, when the probationer fails to object on that ground in the trial court].) However, as defendant in the instant case recognizes, the forfeiture rule does not apply if the claim "amount[s] to a 'facial challenge' " that is "capable of correction without reference to the particular sentencing record developed in the trial court . . . ." (Sheena K., supra, 40 Cal.4th at pp. 885, 887.) Exercising our discretion (People v. Marchand (2002) 98 Cal.App.4th 1056, 1061 [recognizing a reviewing court has discretion to adjudicate question of constitutional law despite party's forfeiture of such right]), we turn to the merits of defendant's claim.
Here, we conclude condition 10(g) reasonably serves the compelling state interest in defendant's reformation and rehabilitation and also reasonably serves to protect public safety by preventing future criminality. As summarized ante, the record shows that defendant's outbursts and behavior at his parents' home in 2013 left them scared and frightened of defendant, which ultimately necessitated their obtaining a restraining order against him; that before the December 10, 2015 incident, defendant repeatedly violated the restraining order, as he would show up unannounced at his parents' home seeking money, food, clothes and tools among other items; that on December 10, he once again violated the restraining order when he went to his parents' home and left only after his parents were forced to call law enforcement; that defendant believed, and, as demonstrated by his statements in the probation report, continued to believe even after his conviction in the instant case, that his parents' home was his home and, thus, that he had a right to be there; that at the time of the attempted break in on December 16, 2015, defendant was homeless and was in search of food; that according to his parents Abby Gail and William, defendant needs drug treatment; that defendant denied using drugs other than marijuana and denied having a substance abuse problem, despite the fact he was arrested in his parents' home in April 2013 when they found him sleeping (or passed out) on their couch and police found on him a "glass bulb with white crystalline residue and .06 grams of methamphetamine"; and that, although the probation report noted defendant's prior "performance on probation was unsatisfactory" and he refused to take any responsibility whatsoever for his actions and was without remorse, he nonetheless was recommended for probation in the instant case because of probation conditions which involved a "more intensive[-]type of supervision" over defendant, including substance abuse treatment at a residential treatment facility.
Moreover, we note defendant's probation is further subject to the following conditions to which he does not object: that he attend and participate in treatment, therapy and counseling including psychiatric, individual, group, substance abuse and cognitive behavior; complete a residential drug treatment program; attend self-help meetings; submit to a search "at any time with or without a warrant, and with or without reasonable cause"; avoid alcohol and controlled substances; seek and maintain full-time employment, schooling or a combination thereof; and report any change of address or employment to probation.
We independently conclude from the foregoing that, based on defendant's prior conduct and behavior, he requires strict probationary supervision. We further independently conclude condition 10(g), when considered in connection with some of the other conditions to which he did not object, will assist defendant's probation officer in this endeavor by making it possible to know in advance where defendant will be living once he completes residential drug treatment and, if and when he secures employment, where he will be working. (Compare, Bauer, supra, 211 Cal.App.3d 937 [striking a residence condition ostensibly designed to prevent the defendant from living with his overprotective parents because unlike the instant case, there was nothing in the record there to suggest the defendant's home life contributed to the crimes of which he was convicted (false imprisonment and simple assault), or that living at home reasonably related to future criminality].) As such, we conclude that condition 10(g) is not unconstitutionally overbroad.
DISPOSITION
The judgment of conviction is affirmed.
BENKE, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.