Opinion
D072430
05-10-2018
THE PEOPLE, Plaintiff and Respondent, v. MARIO TEODORO RIOS, Defendant and Appellant.
Kent D. Young, 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, Eric A. Swenson and Junichi P. Semitsu, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF35777) APPEAL from a judgment of the Superior Court of Imperial County, Ruth Bermudez Montenegro, Judge. Affirmed. Kent D. Young, 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, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Mario Teodoro Rios appeals a judgment following his jury conviction of insurance fraud (Pen. Code, § 550, subd. (a)(4)), making a false report of a criminal offense (§ 148.5, subd. (a)), and attempting to induce false testimony (§§ 137, subd. (c), 664). The trial court suspended imposition of sentence and granted him three years of formal probation, subject to various conditions. On appeal, Rios contends: (1) he was denied his Sixth Amendment right to confrontation when the court admitted a vehicle purchase agreement signed by a person who was not available for cross-examination at trial; (2) if he forfeited that claim because his counsel did not object to admission of the agreement on Sixth Amendment grounds, he was denied his right to effective assistance of counsel; and (3) the probation condition prohibiting him from holding a job in which he is required to use or control a bank account on which he is authorized to write checks, or in which he is in charge of monetary funds, is unreasonable and must be stricken. We reject Rios's claims and affirm the judgment.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2013, Rafael Martinez and Jose Diarte, owners of a Mexicali, Mexico tire shop, purchased a salvaged 2010 Toyota Tacoma pickup truck, which was located in Texas, for $7,800 on an auction website. In July 2013, they approached Susana Vargas and Elvira Nuno, who knew them through their accounting business, about buying the truck after they repaired it. Vargas and Nuno agreed to buy the truck for $15,000 after the repairs were completed.
Rafael Martinez is Rios's brother.
On August 15, 2013, Diarte delivered the repaired truck to Vargas. Vargas prepared a vehicle purchase agreement, written in Spanish, documenting her purchase of the truck for $15,000. Diarte and Vargas signed the agreement as seller and buyer, respectively, and Nuno and Nancy N. Fonseca Guizar, who was Diarte's girlfriend, signed as witnesses to their signatures. Photocopies of identification cards for all four individuals were attached to the agreement. Diarte gave Vargas and Nuno the truck's original Texas title and its keys. After taking possession of the truck, Vargas and Nuno had the truck serviced at least seven times from June 2014 through June 2015.
On June 11, 2015, almost two years after Vargas purchased the truck, Rios entered Vargas and Nuno's Mexicali office and asked them who owned the truck parked outside. Rios stated he owned the truck, and they could sue his brother, Martinez, if Martinez sold them the truck. Rios said his brother had not paid him for the truck and that Rios wanted his money. Vargas then called Diarte, who came to the office and spoke with Rios for about 10 minutes. Diarte told Rios to leave Vargas and Nuno alone because they had paid for the truck. Rios did not say anything in response and left.
Also on June 11, Rios went to an auto repair shop in El Centro, California, and tried to obtain documents showing he had the truck inspected. Even though Rios did not have the truck with him, Rios offered $150 in cash to Francisco Llamas, one of the mechanics at D&L General Auto Repair, for brake and lamp certificates of compliance for the truck. Llamas informed Rios that would be illegal, but he ultimately accepted the money and issued certificates without conducting inspections. Llamas forged his father's signature on the certificates because Llamas was not licensed to conduct brake and lamp inspections.
Llamas testified at trial that the shop normally charged a total of $62 to conduct both brake and lamp inspections and issue certificates of compliance.
On June 18, Rios obtained a temporary operating permit from the California Department of Motor Vehicles (DMV), which permit allowed him to drive the truck until it was inspected by the California Highway Patrol at an appointment he scheduled for September 2015.
On June 23, Rios called the Wawanesa Insurance Company (Wawanesa) to add the Toyota Tacoma truck to his insurance policy. He told Wawanesa that he had paid $2,000 for the truck. The effective date for coverage of the truck was June 24, 2015.
On June 26, Rios reported to the Calexico Police Department that his Toyota Tacoma truck was stolen. He told Officer Sean Acuna that he had parked his truck in a Calexico parking lot that afternoon and then walked across the border for a dentist appointment in Mexicali. When he returned, the truck was missing.
On July 21, Rios called Wawanesa to make a claim for his stolen truck. On or about August 3, he completed and signed a written claim form, had it notarized, and mailed it to Wawanesa. On the form, Rios claimed he paid approximately $15,000 for the truck.
In August, Calexico Police Department Detective Armando Orozco separately interviewed Vargas and Nuno. They showed him their purchase agreement for the truck, the truck's Texas title, and service records from February 2014 through June 2015. They told Orozco they had never entered the United States with the truck.
Orozco then interviewed Rios, who reviewed the vehicle theft report he had submitted and stated he needed to correct the insurance information to show the truck was insured as of June 24. Referring to Vargas and Nuno's 2013 purchase agreement, Orozco asked Rios how Vargas and Nuno could have had the truck for one year and 11 months. Rios replied: "I don't know but there's no proof of that so far." Rios denied knowing Diarte. Orozco showed Rios the service records and receipts showing Vargas and Nuno had possession of the truck since at least February 2014. Despite this information, Rios stated he had possession of the truck in the United States for six or seven months after his brother completed repairs on the truck in Mexico, and that Rios had driven the truck on June 26. Rios told Orozco that he went to Vargas and Nuno's home after a friend saw the truck at a home in Mexicali. The only documentation Rios gave Orozco to prove he had possession of the truck was the two brake and lamp certificates dated June 11.
At trial, Rios admitted that he lied to Orozco that it was a friend who saw the truck in Mexicali. He testified California Highway Patrol Officer Navarette told him about the location of the truck. However, contrary to what he told Orozco, Rios testified he never went to Vargas and Nuno's home.
Orozco also interviewed Daniel Llamas, Francisco Llamas's father, regarding the June 11 brake and lamp certificates that his D&L auto repair shop had issued for the truck. Carbon copies of those certificates were missing. When asked about their absence, Daniel stated that he would "look into it" and believed one of his employees may have stolen the certificates. Thereafter, Francisco Llamas contacted Orozco, who then interviewed him about the certificates' irregularities. Llamas told Orozco that on June 11 he sold the blank brake and lamp certificates to a man for $150. He stated he did not know Rios.
Richard Nicholas, a Wawanesa investigator, was assigned to investigate Rios's insurance claim. Following his investigation, Wawanesa denied Rios's claim.
On May 23, 2016, an information charged Rios with insurance fraud (§ 550, subd. (a)(4)) and making a false report of a criminal offense (§ 148.5, subd. (a)).
In late 2016, Rios asked Michael Montenegro, one of his coworkers, to lie for him in the instant case. Rios asked Montenegro to falsely testify that he had known Rios for five years and knew that Rios had consistently parked his brown Toyota vehicle near a tire shop about a block away. In fact, Montenegro had not known Rios for five years, had never seen a brown Toyota vehicle parked near the tire shop, and had never seen Rios drive a Toyota Tacoma truck. Montenegro had known Rios for only about six months when Rios asked Montenegro to lie for him. After initially agreeing to lie for Rios, Montenegro changed his mind and then contacted police regarding the instant case.
On May 12, 2017, a second amended information was filed adding a charge that Rios attempted to induce false testimony (§§ 137, subd. (c), 664).
At trial, Acuna, Orozco, Vargas, Nuno, Llamas, and Montenegro testified for the prosecution substantially as described ante. Rios testified in his own defense and generally denied all of the allegations against him. In particular, he testified that his brother purchased the salvaged Toyota Tacoma truck for him on an auction website in February 2013, using $7,800 in cash that Rios gave his brother. Rios then gave his brother an additional $4,000 in cash to repair the truck in Mexicali. After the truck was repaired, his brother brought it back into the United States in November or December 2014.
The jury convicted Rios on all three counts. The trial court suspended imposition of sentence and granted Rios three years of formal probation, subject to various conditions. Rios timely filed a notice of appeal.
DISCUSSION
I
Admission of the Purchase Agreement
Rios contends the vehicle purchase agreement signed by Diarte and Vargas constitutes testimonial hearsay under Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and its admission violated his Sixth Amendment right to confrontation because Diarte was unavailable to testify at trial and Rios did not have a previous opportunity to cross-examine him as a witness.
A
During Vargas's testimony, she identified exhibit 3 as a true and correct copy of the vehicle purchase agreement that she and Diarte signed on August 15, 2013. When the prosecutor initially offered the exhibit into evidence, Rios objected on the ground that it was not the original copy of the purchase agreement. Vargas stated she possessed the original copy of the purchase agreement in a file in Mexico, but had not brought it with her that day. Vargas stated she would have access to the purchase agreement the following week. The prosecutor then reserved her motion to admit the copy of the purchase agreement into evidence. The trial court stated: "At this time then I'm sustaining [Rios's] objection with regard to admitting this exhibit at this time."
When Vargas resumed her testimony two days later, she brought the original purchase agreement with her. After Vargas identified the document, the prosecutor offered a photocopy of it into evidence. When the court asked whether there was any objection to the document's admission, Rios's counsel replied, "No." The court then admitted a copy of the purchase agreement into evidence as exhibit 3. The prosecution also offered into evidence exhibit 3A, an English translation of the purchase agreement by a certified translator. Rios's counsel stated he did not object to its admission and further stated: "[W]e would stipulate that [the exhibit 3A translation] goes in so the jury can all understand what [exhibit 3] says."
The trial court's clerk apparently made a photocopy of the original purchase agreement, which photocopy was then marked as exhibit 3 and admitted into evidence.
B
Evidence Code section 353, subdivision (a), provides that no judgment shall be reversed based on erroneous admission of evidence unless the record shows "an objection . . . was timely made and so stated as to make clear the specific ground of the objection . . . ." A party's failure to make a timely and specific objection on the ground asserted on appeal makes that ground not cognizable. (People v. Partida (2005) 37 Cal.4th 428, 433-434.) The requirement of a specific and timely objection applies to admission of evidence that may violate a defendant's Sixth Amendment right to confrontation. (People v. Alvarez (1996) 14 Cal.4th 155, 186 (Alvarez).) A defendant's failure to timely object to evidence as a violation of the Sixth Amendment right to confrontation forfeits that challenge on appeal. (Ibid.; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19 (Lewis); People v. Arredondo (2017) 13 Cal.App.5th 950, 979 (Arredondo).)
C
The People assert Rios forfeited his contention that admission of the purchase agreement violated his Sixth Amendment right to confrontation because he failed to make a timely objection on this ground in the trial court. We agree.
When the prosecutor initially moved for admission into evidence of a copy of the purchase agreement, Rios objected on the sole ground that it was not the original copy of that agreement. The court sustained that objection. Vargas later brought a copy of the original purchase agreement with her, and it was available for inspection. Rios expressly stated he had no objection to this document's admission into evidence. Rios also expressly stipulated to admission of an English translation of the purchase agreement. The trial court admitted both documents into evidence.
By not timely objecting to admission of the purchase agreement on Sixth Amendment grounds, Rios forfeited that claim on appeal. (Alvarez, supra, 14 Cal.4th at p. 186; Lewis, supra, 39 Cal.4th at p. 1028, fn. 19; Arredondo, supra, 13 Cal.App.5th at p. 979.) Given this forfeiture, we need not address the merits of Rios's claim that his Sixth Amendment right to confrontation was violated by admission of the purchase agreement.
Nonetheless, as discussed post, we conclude Rios's rights were not violated because the document does not constitute testimonial hearsay.
II
Ineffective Assistance of Counsel
Rios alternatively argues that if he forfeited his Sixth Amendment confrontation claim based on his counsel's failure to object to admission of the purchase agreement on that specific ground, he was denied his constitutional right to effective assistance of counsel.
A
A criminal defendant is constitutionally entitled to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 684-685 (Strickland); People v. Pope (1979) 23 Cal.3d 412, 422 (Pope).) To show denial of the constitutional right to counsel, Rios must show: (1) his counsel's performance was below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance prejudiced Rios. (Strickland, at pp. 687, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma); Pope, at p. 425.) It is Rios's burden on appeal to show that he was denied effective assistance of counsel. (Ledesma, at p. 218.)
"In evaluating a defendant's claim of deficient performance by counsel, there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' [citations], and we accord great deference to counsel's tactical decisions. [Citations.] . . . Accordingly, a reviewing court will reverse a conviction on the ground of inadequate counsel 'only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.' [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 979-980.)
"Ineffective assistance of counsel claims are rarely cognizable on appeal." (People v. Silvey (1997) 58 Cal.App.4th 1320, 1329.) "[B]ecause, in general, it is inappropriate for an appellate court to speculate as to the existence or nonexistence of a tactical basis for a defense attorney's course of conduct when the record on appeal does not illuminate the basis for the attorney's challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a habeas corpus proceeding, in which the attorney has the opportunity to explain the reasons for his or her conduct." (People v. Wilson (1992) 3 Cal.4th 926, 936.)
To show prejudice, Rios must show there is a reasonable probability that he would have received a more favorable result had his counsel's performance not been deficient. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 215.) "It is not sufficient to show the alleged errors may have had some conceivable effect on the trial's outcome; the defendant must demonstrate a 'reasonable probability' that absent the errors, the result would have been different." (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)
B
Rios asserts his trial counsel performed deficiently when he did not object to admission of the 2013 purchase agreement as a violation of his Sixth Amendment right of confrontation. The record on appeal does not show Rios's trial counsel did not have, or could not have had, a satisfactory explanation for not objecting to admission of that evidence. (People v. Scott (1997) 15 Cal.4th 1188, 1212.) The record contains no affidavit, declaration, or other statement by Rios's trial counsel expressly, or implicitly, explaining why he did not object to admission of the copy of the original purchase agreement.
Based on our review of the record, it appears Rios's trial counsel could have made a rational tactical decision to allow the prosecutor to introduce a copy of the original purchase agreement into evidence without objection. It is possible he concluded the purchase agreement did not constitute inadmissible hearsay under Crawford, and therefore made a rational tactical decision not to object to avoid appearing unduly obstructionist by making a seemingly frivolous or meritless objection.
Assuming arguendo Rios's trial counsel had no tactical reason for not objecting to admission of the purchase agreement, we nevertheless conclude he did not perform deficiently because the purchase agreement is not testimonial hearsay under Crawford, and its admission therefore did not violate Rios's rights under the Sixth Amendment. The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The main purpose of the Sixth Amendment right to confrontation is to ensure that a defendant has the opportunity to confront and cross-examine witnesses against him or her. (People v. Sanchez (2016) 63 Cal.4th 665, 679.) "[T]he question is whether, in light of all the circumstances, viewed objectively, the 'primary purpose' of the conversation was to 'creat[e] an out-of-court substitute for trial testimony.' [Citation.]" (Ohio v. Clark (2015) ___ U.S. ___ [135 S.Ct. 2173, 2180] (Clark).) Crawford stated that the Sixth Amendment confrontation right applies to witnesses who give testimony against the accused. (Crawford, supra, 541 U.S. at p. 51.) " 'Testimony' . . . is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' [Citation.]" (Ibid.) The court in Crawford stated:
"Various formulations of this core class of 'testimonial' statements exist: 'ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,' [citation]; 'extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, of confessions,' [citation]; 'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,' [citation]." (Crawford, supra, 541 U.S. at pp. 51-52.)
However, the court left for another day any effort to spell out a comprehensive definition of " 'testimonial.' " (Crawford, supra, 541 U.S. at p. 68, fn. omitted.)
We conclude that an objective view of the circumstances in this case shows that the primary purpose of the purchase agreement was not to create an out-of-court substitute for trial testimony. (Clark, supra, ___ U.S. at p. ___ .) The evidence shows that the purchase agreement was created in 2013 to document the sale of the truck by Diarte to Vargas. Because its creation preceded the criminal investigation in this case, the purchase agreement's primary purpose was not to provide evidence for Rios's criminal prosecution and therefore was not testimonial in nature. (Id. at pp. ___ [135 S.Ct. at pp. 2181-2182].) Contrary to Rios's assertion, neither Diarte's signature on the purchase agreement nor any other provision in the agreement constituted a statement that was the functional equivalent of ex-parte in-court testimony. (Crawford, supra, 541 U.S. at p. 51.) At most, the unsworn statements in the purchase agreement merely recorded objective facts that were not sufficiently formal to be testimonial under Crawford. (Cf. People v. Holmes (2012) 212 Cal.App.4th 431, 438 [because forensic data and reports were unsworn, lacked formality, and merely recorded objective facts, they were not testimonial].)
Citing United States v. Esparza (9th Cir. 2015) 791 F.3d 1067 (Esparza), Rios argues the purchase agreement was testimonial hearsay because it was first created after the criminal investigation in this case began in or about August 2015. In Esparza, it was undisputed at trial that a DMV notice of transfer and release of liability form, which was offered to prove the defendant owned the vehicle, was created and filed by its previous owner only after that vehicle was found to contain illegal drugs. (Id. at pp. 1071-1074.) The court concluded the form was testimonial because the previous owner had a strong incentive to lie to avoid criminal liability, and the document therefore was inadmissible absent the previous owner's testimony. (Id. at pp. 1072, 1074.)
Unlike Esparza, the evidence presented in this case does not support a finding that the purchase agreement was first created in or about August 2015 when the criminal investigation began. Vargas and Nuno testified regarding their purchase of the truck on August 15, 2013, including the creation and execution of the purchase agreement on that date. They also testified that they had the truck regularly serviced at a Toyota dealer since that 2013 purchase, and they had supporting documents to corroborate their testimony (i.e., multiple service records). This evidence clearly shows the purchase agreement was created about two years before the criminal investigation began in this case, and therefore could not have been created in anticipation of a criminal investigation and/or prosecution of Rios. Furthermore, unlike the DMV form in Esparza, the purchase agreement in this case did not accuse Rios or foreseeably subject him to criminal liability. The purchase agreement thus was not made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. (Crawford, supra, 541 U.S. at p. 52.) Esparza therefore does not support Rios's claim that his counsel was ineffective in failing to object to admission of the purchase agreement on Sixth Amendment grounds.
At times, Rios's opening brief uses alternative language to describe his purported defense theory (e.g., that the purchase agreement was "first provided" to investigators or "first produced" during the investigation). To the extent Rios asserts evidence may be testimonial if it is first produced or provided after a criminal investigation begins despite clear evidence that it was created before that investigation began, he misconstrues and/or misapplies the proper standard under Crawford and its progeny. In Esparza, there was no dispute that the DMV form was created after the investigation began. (Esparza, supra, 791 F.3d at pp. 1071-1074.) Esparza did not hold that evidence created before a criminal investigation begins, but first produced or provided after that investigation began, is testimonial under Crawford and its progeny.
Nor does the record support Rios's assertion that his trial counsel argued that the purchase agreement was fraudulent and was created after the criminal investigation began. Rios cites only three pages of the reporter's transcript setting forth his counsel's closing argument regarding Vargas's purchase of the truck and, in particular, evidence of the purchase agreement. At the beginning of that excerpt from his closing argument, Rios's counsel noted that Vargas testified that she agreed to purchase the salvaged truck for $15,000 before she saw it in a repaired condition. He also noted that the photographs of the truck that she viewed before agreeing to purchase it showed it did not have any license plates, but the truck had license plates when it was subsequently delivered. He then commented, "[it] [d]oesn't make sense." He then discussed evidence showing that the license plates on the truck were for another vehicle and commented, "[r]ather interesting." His counsel then addressed the purchase agreement, arguing: "But not getting away from the contract for the sale, [U.S. Customs and Border Protection Officer] Lewenthal said you had to have proof of ownership, that got marked, Bill of Sale, title, something to show that it wasn't stolen and that it stayed there. Something to show it was yours and it stayed there. And what is this? An original contract for sale that she had in her possession." He then noted that the prosecutor "made a big issue of the fact that my client paid $12,000 in cash to his brother. Where is the paper trail? Where is the check? Where is the paper trail for this purchase? What's the difference?" This three-page excerpt does not support Rios's assertion that his counsel specifically argued that the purchase agreement was both fraudulent and created after the criminal investigation began in 2015.
Likewise, the record does not support Rios's assertion that there was significant circumstantial evidence to support Rios's purported defense theory. To support his claim, Rios refers to discrepancies between his testimony and that of Vargas and Nuno surrounding Rios's encounter with them in Mexicali. Rios notes that Vargas and Nuno testified Rios came to their office on June 11, 2015, claiming the truck was actually his, but Rios testified at trial that the office encounter occurred in July 2015. However, the pages cited show that Rios, in fact, denied ever going to their office. Rios's opening brief also notes the prosecution did not present any evidence to corroborate the testimony of Vargas and Nuno that he went to their office on June 11, and that border crossing records presented by the prosecutor show the truck's license plates actually belonged to a 1998 Ford Ranger (and not a 2010 Toyota Tacoma) truck. It was the province of the jury to weigh this evidence. The jury reasonably found incredible Rios's assertion that he owned the truck, and also presumably rejected his other testimony (e.g., that he did not know where Vargas and Nuno's office was located and had never gone there). In any event, none of the evidence cited by Rios supports a reasonable inference that the 2013 purchase agreement was, in fact, created after the criminal investigation began in 2015. We reject Rios's assertion that the evidence showed the purchase agreement was testimonial hearsay.
Rios testified the only time he saw Vargas and Nuno was during the investigation in Mexicali when he briefly saw them twice when he was sitting and waiting (apparently at a government building in Mexicali) and they passed by him going to an office. He testified he did not know where their business office was and specifically denied ever going to their office.
C
Assuming arguendo Rios's counsel performed deficiently, we nevertheless conclude Rios has not carried his burden on appeal to show that such deficient performance prejudiced his case. (Strickland, supra, 466 U.S. at pp. 687, 691-692, 697; Ledesma, supra, 43 Cal.3d at pp. 216-217; Pope, supra, 23 Cal.3d at p. 425.)
Based on our review of the evidence, we conclude it is not reasonably probable Rios would have obtained a more favorable verdict had his counsel objected to admission of the purchase agreement on Sixth Amendment right to confrontation grounds. First, because the purchase agreement did not constitute testimonial hearsay under Crawford and its progeny for the reasons discussed ante, any objection by counsel on this ground would have lacked merit and would not have resulted in exclusion of the evidence. Second, Rios has not carried his burden to show it is reasonably probable that he would have received a more favorable verdict, even if the purchase agreement had been excluded. There was ample evidence other than the purchase agreement, including the testimony of Vargas and Nuno and the Toyota dealer service records, that overwhelmingly supported the jury's verdicts finding Rios guilty of the charged offenses. Montenegro's testimony that Rios asked him to lie in this case further undermines Rios's claim that exclusion of the purchase agreement would have altered the jury's findings.
Because Rios has not shown it is reasonably probable he would have received a more favorable verdict had his counsel objected to admission of the purchase agreement on Sixth Amendment grounds, his claim that he was denied effective assistance of counsel fails. (Ledesma, supra, 43 Cal.3d at p. 218 [defendant has burden on appeal to show that he or she was denied effective assistance of counsel and is entitled to relief].)
III
Employment Probation Condition
Rios contends the probation condition prohibiting him from holding a job in which he is required to use or control a bank account on which he is authorized to write checks, or in which he is in charge of monetary funds, is unreasonable and must be stricken.
A
At Rios's sentencing, the trial court considered, inter alia, the probation officer's report which recommended that the court suspend imposition of sentence and place Rios on three years of formal probation, subject to various conditions. One of the recommended probation conditions, No. 4, was that Rios: "[n]ot hold a position of employment in which the defendant is required to use or control any type of bank account on which the defendant is authorized to write checks or is in charge of monetary funds."
The court adopted the recommendations in the probation officer's report, suspended imposition of sentence, and granted Rios three years of formal probation, subject to the recommended conditions of probation. Rios objected to probation condition No. 4, stating he did not understand it because his offenses were not embezzlement-type offenses. The prosecutor responded, arguing there was a nexus between Rios's offenses and the probation condition "given there would be a lack of trust if the defendant were to be placed in such a fiduciary position." Rios replied, arguing "[t]hat would be in any case [in which] a person is convicted of a felony, there is a lack of trust. It has to have some connection[;] he is taking money from somebody and he hasn't done that."
Overruling Rios's objection, the court stated: "With regard to [probation condition] Number 4, the [c]ourt finds that there is a nexus given Mr. Rios'[s] conduct regarding fraud and false reports. As that, I will make it a term and condition of probation. [¶] You are ordered not to hold a position of employment in which you are required to use or control any type of bank account on which you are authorized to write checks or in charge of monetary funds."
B
"The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) "In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety . . . ." (Ibid.) In granting probation, the court may impose any "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, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . ." (§ 1203.1, subd. (j).)
Because probation is a privilege and not a right, "adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights—as, for example, when they agree to warrantless search conditions. [Citations.]" (People v. Olguin (2008) 45 Cal.4th 375, 384 (Olguin).) "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.)
Nevertheless, probation conditions that involve a waiver of constitutional rights must not be overbroad and must be narrowly drawn and reasonably related to the compelling state interests in reformation and rehabilitation. (People v. Bauer (1989) 211 Cal.App.3d 937, 942 (Bauer).) When a defendant challenges a probation condition as unconstitutionally overbroad, the essential question is whether the legitimate purpose of the condition closely fits the burden it imposes on the defendant's constitutional rights. (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) "A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender 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 . . . .' [Citation]." (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) "[E]ven if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (Olguin, supra, 45 Cal.4th at p. 380.) Furthermore, to the extent a probation condition may be interpreted or applied in an irrational manner, the probation condition should instead be interpreted in a reasonable, objective manner. (Id. at p. 382.)
When a probation condition is challenged on appeal as being unconstitutionally overbroad, we review that question of law de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143; In re Sheena K. (2007) 40 Cal.4th 875, 889.) We may strike or modify a probation condition that is unconstitutionally overbroad. (In re Sheena K., at p. 892; Bauer, supra, 211 Cal.App.3d at pp. 944-945.) However, if a defendant does not object in the trial court to a probation condition, any challenge on appeal to that condition is forfeited unless it involves a pure question of law that can be resolved without reference to the particular sentencing record developed in the trial court. (In re Sheena K., at p. 889; People v. Welch (1993) 5 Cal.4th 228, 235, 237; People v. Kendrick (2014) 226 Cal.App.4th 769, 776-778.)
C
Rios asserts the trial court abused its discretion by imposing probation condition No. 4 because that condition does not relate to either his offenses or his future criminality. Citing People v. Burden (1988) 205 Cal.App.3d 1277 (Burden), he argues that because his offenses were not committed in the scope of his employment and did not involve a theft or financial crime against an employer, the challenged probation condition is unreasonable under Lent and must be stricken.
We conclude the trial court did not abuse its discretion by imposing probation condition No. 4 as a condition of Rios's probation because the record shows the condition has a reasonable relation to both his offenses and his future criminality. In committing his insurance fraud offense, Rios repeatedly lied to the insurance company, its investigator, police, and others and procured false lamp and brake compliance certificates in carrying out his scheme to fraudulently obtain $15,000 from the insurance company. It can be reasonably inferred from the manner and extent to which Rios planned and carried out his scheme to defraud the insurance company and obtain a large amount of money that he may not be sufficiently trustworthy to hold a position of employment in which he is required to use or control any type of bank account on which he is authorized to write checks or is in charge of monetary funds. Probation condition No. 4 therefore has a sufficient relation to his offenses under Lent. (Lent, supra, 15 Cal.3d at p. 486.)
Although Rios did not commit his insurance fraud offense in the course of his duties as a correctional officer, under Lent and its progeny an employment probation condition does not necessarily need to be directly related to an offense committed in the scope of a defendant's employment. Rios does not cite any case so holding and we decline to adopt such a position.
Similarly, probation condition No. 4 is reasonably related to Rios's future criminality. (Lent, supra, 15 Cal.3d at p. 486.) We again note the manner and extent to which he planned and carried out his scheme to defraud the insurance company and obtain a large amount of money. Precluding Rios from holding a job in which he is authorized to write checks or is in charge of money, in effect, removes a potential source of temptation for Rios to once again attempt to illegally obtain money through fraudulent or other dishonest means, thereby reducing the risk of his future criminality. (Cf. People v. Lopez (1998) 66 Cal.App.4th 615, 626 [probation condition prohibiting gang association was reasonably related to future criminality because it "insulate[d] [defendant] from a source of temptation to continue to pursue a criminal lifestyle"].) By so doing, that condition both fosters his rehabilitation and protects public safety. (Carbajal, supra, 10 Cal.4th at p. 1120.) Probation condition No. 4 therefore is reasonably related to Rios's future criminality under Lent.
Burden is factually inapposite and does not persuade us to reach a different conclusion in this case. In Burden, the defendant pled guilty to one count of writing a check with insufficient funds. (Burden, supra, 205 Cal.App.3d at p. 1279.) The trial court granted him probation, subject to various conditions, one of which precluded him from working in a position of outside or commissioned sales. (Ibid.) Although he was employed as a phone solicitor and outside salesperson, he did not commit the bad check offense in his capacity as a salesperson. (Id. at p. 1280.) Accordingly, Burden concluded that the probation condition was not related to his crime and was not reasonably related to his future criminality. (Id. at pp. 1279-1281.) The court noted that the defendant could have been working at any job and committed the same type of fraud. (Id. at pp. 1280-1281.) "[T]aken to its logical extreme this type of condition could have been used to prevent [the defendant] from undertaking any compensable employment." (Id. at p. 1281.)
Unlike the situation in Burden, the probation condition in this case has a sufficient relation to both Rios's offenses and his future criminality for the reasons discussed ante. Furthermore, Rios apparently does not argue that probation condition No. 4 precludes him from holding any type of job that he held at the time of the offense or held prior to or at the time of his sentencing. As the People note, there is nothing in the record showing that his job as a correctional officer at the time of the instant offenses, or his subsequent jobs as a caretaker and sober living coordinator thereafter, authorized him to write checks or placed him in charge of money. Therefore, it does not appear probation condition No. 4 will have the effect of precluding Rios from working in current or past employment capacities or positions or of "banishing" him from working where he does or desires to work. (Cf. People v. Arevalo (2018) 19 Cal.App.5th 652, 657 [residence approval probation condition was not designed to banish defendant from particular neighborhood or from living where she desires].) Accordingly, Burden does not persuade us that the employment probation condition in this case is unreasonable under Lent.
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: HALLER, Acting P. J. DATO, J.