Opinion
D074909
10-22-2019
THE PEOPLE, Plaintiff and Respondent, v. ROBERT STEVEN KEEFER, Defendant and Appellant.
Michael Anthony Hernandez for Defendant and Appellant. Xavier Becerra, Attorney General, Robin Urbanski and Donald W. Ostertag, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD274258) APPEAL from an order of the Superior Court of San Diego County, Amalia L. Meza, Judge. Affirmed. Michael Anthony Hernandez for Defendant and Appellant. Xavier Becerra, Attorney General, Robin Urbanski and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Robert Steven Keefer was found guilty of one count of burglary of an inhabited dwelling house (Pen. Code, §§ 459, 460, subd. (a); count 1), one count of resisting a peace officer (§ 148, subd. (a)(1); count 2), four counts of violating a court order (§ 166, subd. (a)(4); counts 3-6), and one count of driving under the influence with a blood alcohol concentration of 0.15 percent or more (Veh. Code, §§ 23152, subd. (a), 23578; count 7). The trial court placed Keefer on five years of formal probation subject to several conditions, including a condition requiring him to participate in counseling to address honesty issues.
All further statutory references are to the Penal Code, unless otherwise noted.
Keefer contends the probation condition requiring honesty counseling is unreasonable because there is no relationship between the probation condition and the crimes of which he was convicted and, furthermore, the probation condition violates his constitutional right to privacy. In the alternative, he claims his trial counsel rendered ineffective assistance by not objecting to the probation condition. We conclude Keefer forfeited his challenge to the probation condition and has not established that his trial counsel acted unreasonably. Therefore, we affirm.
II
BACKGROUND
A
Keefer was the executor and sole beneficiary of a family member's estate consisting of a two-bedroom condominium and other property. He leased the condominium to his son, who lived in one bedroom and subleased the second bedroom to J.F. (the victim). Approximately a year after the victim moved into the condominium, Keefer's son became gravely ill and arrangements were made for him to move out of the condominium and spend time with his family in another state. Keefer's son told the victim his family intended to sell the condominium and the victim needed to find a new residence.
Keefer later asked the victim to stay rent-free in the condominium for two additional months if, in return, the victim would care for his son's pets. There was some dispute at trial about whether Keefer and the victim ever agreed the victim would stay rent-free in the condominium—Keefer testified the offer was merely tentative, while the victim testified the offer was made and accepted. However, it is undisputed the victim stayed in the condominium.
Approximately one month after Keefer's son moved out, Keefer appeared at the condominium, demanded back rent from the victim, and instigated a series of escalating confrontations with the victim. During one episode, he threatened to "hire Mexicans" to evict the victim. During another quarrel, he confronted the victim while heavily intoxicated and called him a "faggot," a "worthless loser," and a "failure." During a third incident, he attempted to change the locks at the condominium without notifying the victim. During the fourth incident, he searched the victim's room without permission, uninstalled and took security cameras the victim had set up in the condominium, and told the victim he was a "fucking loser," a "worthless squatter," and a "piece of shit."
Police responded to the fourth incident, entered the condominium, and began questioning Keefer, who became enraged at the police officers' presence and balled up his fists in a confrontational manner. The officers commanded him to sit down, but he disobeyed, cursed at the officers, and stepped towards them. They attempted to detain him, but he resisted. The officers subdued Keefer and placed him under arrest. Later that day, the victim obtained a restraining order directing Keefer not to come within 100 yards of him.
A few days later, the victim notified the police Keefer was in violation of the restraining order. In one incident, Keefer parked his vehicle next to the victim's vehicle at a grocery store, sat in his vehicle, and stared at the victim when he exited the grocery store. In a second incident on the same day, Keefer drove into the parking lot of the condominium and then parked his vehicle across from the condominium. When police arrived at the scene, they found Keefer parked in his vehicle on the wrong side of the street in a red zone, displaying signs of intoxication, and in possession of an empty liquor bottle. A subsequent blood draw revealed his blood alcohol concentration was 0.23 percent. Keefer appeared at the condominium on two other occasions as well.
B
Based on the foregoing incidents, Keefer was found guilty of one count of burglary of an inhabited dwelling house, one count of resisting a peace officer, four counts of violating a court order, and one count of driving under the influence with a blood alcohol concentration of 0.15 percent or more. His conviction for burglary of an inhabited dwelling house rendered him presumptively ineligible for probation. (§ 462.) Nevertheless, the probation officer recommended a grant of formal probation, subject to a condition that Keefer spend 120 days in custody. The prosecution agreed probation was appropriate, but asked the court to require him to spend 365 days in custody.
The court expressed concerns about Keefer's conduct, including his alcohol abuse, anger, and dishonesty. Of relevance here, it opined that Keefer lied to police officers about driving under the influence, lied to the court about driving under the influence, made unfounded allegations about the victim to the jury, and was "devious" and "not believable." Nevertheless, it offered to grant probation to Keefer on the condition he participate in counseling to address alcohol abuse, anger, and issues with honesty. Keefer agreed to these conditions, among others. Therefore, the court placed Keefer on five years of formal probation, subject to the conditions just discussed. It imposed a sentence of 365 days, but suspended execution of the sentence during the probation period.
III
DISCUSSION
A
"Following a defendant's conviction of a crime, the sentencing court may choose among a variety of dispositional options. One option is to release the offender on probation. 'Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation.' [Citation.] A grant of probation is 'qualitatively different from such traditional forms of punishment as fines or imprisonment. Probation is neither "punishment" (see § 15) nor a criminal "judgment" (see § 1445). Instead, courts deem probation an act of clemency in lieu of punishment [citation], and its primary purpose is rehabilitative in nature.' " (People v. Moran (2016) 1 Cal.5th 398, 402 (Moran).)
"When an offender chooses probation, thereby avoiding incarceration, state law authorizes the sentencing court to impose conditions on such release that 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 ... for the reformation and rehabilitation of the probationer.' (§ 1203.1, subd. (j).)" (Moran, supra, 1 Cal.5th at pp. 402-403.) Accordingly, a court "has 'broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.' [Citation.] But such discretion is not unlimited: '[A] condition of probation must serve a purpose specified in the statute,' and conditions regulating noncriminal conduct must be ' "reasonably related to the crime of which the defendant was convicted or to future criminality." ' " (Id. at p. 403.)
A court's discretion to impose probation conditions " ' "is further circumscribed by constitutional considerations. [Citation.] Where a condition of probation requires a waiver of constitutional rights, the condition must be narrowly drawn. To the extent it is overbroad it is not reasonably related to a compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights." ' " (People v. Garcia (1993) 19 Cal.App.4th 97, 101-102; see People v. Pointer (1984) 151 Cal.App.3d 1128, 1139 ["Our determination that the condition of probation is reasonably related to the offense ... and to possible future criminality ... does not .... end our inquiry. For where a condition of probation impinges upon the exercise of a fundamental right and is challenged on constitutional grounds we must additionally determine whether the condition is impermissibly overbroad."].)
B
Keefer challenges the probation condition requiring him to participate in honesty counseling. He claims it is unreasonable as a matter of state law because it is not sufficiently related to the offenses of which he was convicted or future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486.) For the same reasons, he argues it violates his constitutional right of privacy. In response, the People contend Keefer forfeited his arguments because he did not object to the probation condition in the trial court and, in any event, the probation condition is reasonable and constitutional.
"[F]ailure to object to a probation condition in the trial court on standard state law or reasonableness grounds forfeits the claim for appeal." (Moran, supra, 1 Cal.5th at p. 404, fn. 7; People v. Welch (1993) 5 Cal.4th 228, 237 ["failure to timely challenge a probation condition on [state law] grounds in the trial court waives the claim on appeal"].) The purpose of the forfeiture rule is to "deter the promulgation of invalid conditions in the trial court and decrease the number of appeals contesting such conditions." (In re Sheena K. (2007) 40 Cal.4th 875, 882 (Sheena K.).) Because Keefer did not object to the probation condition as unreasonable or violative of state law in the trial court, we conclude he has forfeited his state law arguments on appeal. (People v. Connors (2016) 3 Cal.App.5th 729, 734-737 [challenge to reasonableness of probation condition forfeited by lack of objection in trial court]; see In re P.O. (2016) 246 Cal.App.4th 288, 294 [expressing doubt whether defendant preserved reasonableness challenge to probation condition merely by interposing general objection].)
Traditional forfeiture principles sometimes apply when a probationer challenges a probation condition on constitutional grounds as well. (Sheena K., supra, 40 Cal.4th at p. 888.) However, courts have recognized an exception to the traditional forfeiture rule when a probationer asserts a "facial" challenge to the constitutionality of a probation condition. (Id. at p. 885.) Unlike a reasonableness challenge under state law, a facial challenge does "not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court." (Ibid.) Keefer contends his constitutional challenge falls within this exception to the traditional forfeiture rule. We disagree.
Keefer does not fully explain how the probation condition purportedly implicates his constitutional right to privacy. However, in substance, his argument is largely duplicative of the fact-driven reasonableness argument he asserts under state law. In particular, he contends the probation condition is "not reasonable because it [is] not specifically tailored to Appellant." In support of this contention, he argues the condition is improper because the probation report "makes no mention of any prior honesty issues" and does not state his "honesty played any role in the purpose or commission of the charged offenses," his "criminal history is limited," and his "social history fails to indicate that truthfulness has ever been an issue or problem for him...."
It is apparent Keefer's challenge does not present a pure question of law, but rather an alleged "constitutional defect [that] may be correctable only by examining factual findings in the record or remanding to the trial court for further findings." (Sheena K., supra, 40 Cal.4th at p. 887.) His failure to assert this fact-specific, as-applied argument in the trial court forfeits the argument on appeal. (See, e.g., People v. Guzman (2018) 23 Cal.App.5th 53, 63, fn. 3 [probationer forfeited as-applied constitutional challenge to probation condition by failing to object]; People v. Kendrick (2014) 226 Cal.App.4th 769, 776-778 (Kendrick) [same].)
For the foregoing reasons, Keefer has forfeited both his constitutional and state law challenges to the probation condition at issue.
C
Next, Keefer contends his trial counsel was ineffective for not interposing an objection to the probation condition mandating honesty counseling. He claims there was no tactical reason for withholding an objection and there is a reasonable probability he would have received more favorable probation conditions had an objection been asserted. The People respond that trial counsel's withholding of an objection was a tactical decision because an objection would have been futile on the merits. Further, they contend his trial counsel reasonably may have elected to withhold an objection because the trial court could have declined to grant probation altogether or imposed it on less favorable terms if it had received and sustained an objection to the honesty counseling condition.
"Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result." (People v. Dennis (1998) 17 Cal.4th 468, 540.) "An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel." (People v. Kelly (1992) 1 Cal.4th 495, 540.) "If, as here, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate court must reject the claim of ineffective assistance unless there can be no satisfactory explanation for counsel's conduct." (Kendrick, supra, 226 Cal.App.4th at p. 778.)
On the record before us, we conclude there is a satisfactory explanation for trial counsel's conduct. Trial counsel obtained an extremely favorable result for Keefer under the circumstances. Because the jury found him guilty of burglary of an inhabited dwelling house, he was presumptively ineligible for probation. (§ 462.) Further, while the probation officer recommended probation and the prosecution did not oppose it, they both asked the court to require Keefer to serve time in custody as a condition of probation. Specifically, the probation officer recommended he serve 120 days in custody and the prosecution recommended he serve 365 days in custody.
Nevertheless, after expressing considerable concern about Keefer's "lying" and "devious" behavior, the trial court offered Keefer formal probation with no additional time in custody, subject to his participation in alcohol abuse, anger, and honesty counseling. Considering this favorable result, trial counsel reasonably could have concluded the court would have conditioned probation on less favorable terms (such as additional time in custody) or declined to offer probation altogether if it had received (and sustained) an objection to the honesty counseling condition. (Kendrick, supra, 226 Cal.App.4th at p. 779 [failure to object to probation condition reasonable because probation was a favorable disposition for defendant].)
Accordingly, we conclude Keefer has failed to establish his trial counsel rendered ineffective assistance.
IV
DISPOSITION
The order is affirmed.
McCONNELL, P. J. WE CONCUR: BENKE, J. GUERRERO, J.