Filed 11/17/14 P. v. Eickhoff CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064116

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE323042)

APRIL MERCEDES EICKHOFF,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Allan J.

Preckel, Judge. Affirmed.

         Law Office of Michael P. Goldstein and Michael P. Goldstein, under appointment

by the Court of Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

William M. Wood and Marilyn L. George, Deputy Attorneys General, for Plaintiff and

Respondent.
       A jury convicted April Mercedes Eickhoff of one count of first degree residential

burglary (Pen. Code,1 §§ 459, 460) and one count of grand theft of personal property

(§ 487, subd. (a)). At sentencing in April 2013, the trial court suspended imposition of

sentence and placed Eickhoff on five years of formal probation, subject to numerous

terms and conditions set forth in the probation order. Eickhoff indicated she had

discussed the conditions with her attorney, and she understood and accepted them.

       Eickhoff appeals, contending her convictions of both counts must be reversed but,

if this court affirms her convictions, "several conditions of probation . . . need to be

stricken." Specifically, she raises five main contentions. First, she contends the court

erred by excluding the proffered testimony of her former codefendant Jacob Richwine's

attorney, Bart Sheela, that Richwine (a defense witness at trial) had said early on in the

criminal proceedings that he was solely responsible for the burglary. Eickhoff suggests

that the proffered testimony of attorney Sheela was admissible under Evidence Code

section 791 as evidence of a prior consistent statement of a witness.

       Second, Eickhoff contends the court committed prejudicial error in failing to

instruct the jury that circumstantial evidence of her mental state had to be irreconciliable

with innocence in order to justify a conviction.

       Third, she asserts the prejudicial cumulative effect of both the court's erroneous

exclusion of "Sheela's testimony that Richwine had spoken from the beginning of his

tricking his codefendants," and its erroneous "fail[ure] to instruct [the jury] that the



1      All further statutory references are to the Penal Code unless otherwise specified.
                                               2
circumstantial case had to exclude rational conclusions inconsistent with guilt," requires

reversal of her convictions.

       Fourth, she contends that "[f]ive conditions of [her] probation [are]

constitutionally invalid."

       Fifth, and last, she claims CALCRIM No. 220 does not define the concept of

reasonable doubt in a manner that is consistent with the requirements of federal due

process.

       For reasons we shall explain, we affirm the judgment.

                               FACTUAL BACKGROUND

       A. The People's Case

       On August 10, 2012, at 7:00 p.m., John Brunner was in the front yard of his home

facing the cul-de-sac on Sugarplum Way in Ramona when he saw three White people

walking in the neighborhood. One of those three people, an older woman, approached

him and said she was looking for a male who had wronged her daughter and was driving

a black Toyota or Subaru. While the woman was talking to Brunner, the other two

people walked up a long driveway to his next door neighbor's house, which was for sale

with a for-sale sign on the right side of the driveway. After the woman with whom he

had spoken walked away out of view, Brunner heard the sound of an automobile engine

being started. Brunner then saw a yellow SUV drive up his neighbor's driveway and into

the open garage. He watched as all three people began loading things from the garage

into the SUV. Brunner testified that all four doors on the SUV were open and the three



                                             3
people "were rapidly shoving items into the car." Brunner ran into his house and called

911.

       The recording of Brunner's 911 call was played for the jurors. Brunner told the

dispatcher he thought there was "a burglary in process at [his] neighbor's house" at the

end of the cul-de-sac on Sugarplum Way. He informed the dispatcher that the house was

in foreclosure and the neighbors who lived there were not at home. When asked what he

had seen, Brunner said that, while one lady was talking to him about looking for a "kid"

in a black Subaru who had stolen something from "some girl," two other people went up

a driveway, and they were "there right now," "putting stuff in their car," "digging through

stuff," and "sorting through things." Brunner said the car was a bright yellow SUV and

the garage was "wide open."

       While watching what was happening at the neighbor's house, Brunner told the

dispatcher that the yellow car had "zipped up the driveway" and "now there's three people

scrounging" through the neighbor's "stuff" and "hustling and scrambling." He described

the people as two White females and one White male. Brunner said that the people were

"picking up things and shoving 'em in the back" of the SUV, and that "[a] guy's putting

some big tool in now." The dispatcher indicated that a police vehicle was on its way and

asked Brunner to stay on the line. Soon thereafter Brunner said, "Okay they're coming

down the driveway." He informed the dispatcher the SUV was driving westbound on

Ramona Oaks. The 911 call ended after the dispatcher told Brunner the SUV had been

stopped.



                                             4
       Deputy David Knight of the San Diego County Sheriff's Department testified that

on August 10, 2012, at 7:19 p.m., he and another deputy were driving in a marked

sheriff's patrol vehicle when he received a call about a burglary in progress and the

description of the yellow SUV. He responded to the call and located the yellow SUV

traveling westbound on Ramona Oaks. As Deputy Knight and his partner, who was

driving, were travelling eastbound on that divided road, they crossed over the median,

activated the overhead lights, and stopped the SUV "head on." Deputy Knight testified

that he contacted the three occupants, who were all sitting in the front although there

were only two front seats. He identified Eickhoff as the the driver. Richwine was seated

in the middle part of the front of the SUV. The third occupant, who was in the passenger

seat, was Marsha Woods (Woods).2 Deputy Knight testified that the back seat and the

small storage cargo area in the back of the SUV were "completely full" of things, mostly

tools. He took photographs of the contents of the SUV. The photos, which were

admitted in evidence, depicted assorted tools, a 10-inch Craftsman table saw, and a tool

box. The name of the burglary victim, Chris Paul, was on the tool box. A map of the

area was on the SUV's front seat.

       Chris Paul testified that he lived in the house on Sugarplum Way on August 10,

2012, and, when he returned home shortly after midnight that night, he discovered all of

the tools in his garage were missing. Paul identified the missing property as "[a] lot of

different home improvement construction type items," including power equipment, drills,


2     Woods, who was Eickhoff's codefendant, was tried with Eickhoff and also was
convicted. Woods is not a party to this appeal.
                                             5
a table saw, a drill press, a compressor, and nail guns. Paul drove to the Ramona sheriff's

station where he met with Deputy Knight. There, Paul identified the 30 to 40 items that

had been taken from his garage. He estimated their combined value to be between

$2,500 and $3,000. Paul testified he did not know Eickhoff, Richwine, or Woods, and he

never gave any of them permission to take any items from his garage.

       B. The Defense

       Woods's counsel presented the testimony of Corvan Jones, who stated that he lived

in a house on Sugarplum Way and had a 27-year-old son named Alex Jones. In the

evening on August 10, 2012, two females and a male arrived at his front door and asked

whether Alex3 was there. Jones did not open his front door to the strangers, but he could

see them through the beveled glass. He testified the younger female, who had "a really

bad attitude," said, "Is Alex here?" or "We're asking you, is Alex here[?]" Alex did not

live there, and Jones grunted and walked away. Jones testified he may have said he did

not know what they were talking about. He also testified he once owned a black Subaru

that Alex had driven. Jones sold the Subaru in late 2011.

       Eickhoff's counsel presented the testimony of Eickhoff's daughter, Samantha

Sales, who lived with Eickhoff in Lakeside. Sales testified she was a friend of Woods

and knew Woods and Richwine were in a dating relationship. Sales owned a 1998

Toyota Camry. Alex Jones was a former friend, she had lent her car to Alex two or three



3      We refer to Alex Jones by his first name to avoid confusion with his father who
bears the same last name. We intend no disrespect.

                                             6
times, and he had always returned it when he said he would. Sales testified that on

August 7, 2012, Alex borrowed her car for "an hour or two," but he did not return it on

time. Sales was able to reach Alex on his cell phone and he said he would return the car,

but he failed to do so. Alex stopped answering her calls and texts. Over the next couple

of days, Sales contacted mutual friends to see if they had seen Alex, with no success.

       Sales testified that on August 10, 2012, she discussed the situation with Eickhoff.

Sales did not want to call the police, and they discussed trying to contact Alex through

his parents. Sales did not know exactly where Alex lived, but she knew Alex's parents

had a house in Ramona Estates. Woods and Richwine were present during the

conversation. Richwine knew where a former girlfriend of Alex's named Brittney

Johnson lived, and he, Woods, and Eickhoff decided to contact her to try to find Alex's

parents' house.

       Sales also testified she found her car parked in a dirt field near her home on

August 11, 2012. She acknowledged she was convicted in 2012 of receiving stolen

property, a felony.

       Richwine testified that Woods was his "ex-girlfriend" and that they had a child

together. He testified that on August 10, 2012, he and Woods were at Eickhoff's house

discussing possible ways to get Sales's car back from Alex. They drove a yellow SUV

that belonged to Eickhoff's father to the Ramona home where Johnson lived with her

parents. Johnson and her parents spoke to them and Johnson's mother gave them a map

of the area that she had torn out of a phone book. The name of the street was Sugarplum

Way, and Richwine drove the SUV there. Johnson had said the house was the second

                                             7
house from the corner, so they got out of the vehicle and started knocking on doors.

Richwine testified that at one house a man came to the door, but would not open it. The

man said he did not know Alex. Richwine and Woods walked up the driveway of the

next house while Eickhoff spoke to a man (Brunner) who was across the street in his

front yard.

       Richwine testified that when he and Woods got to the house, they knocked on the

door, but nobody answered. Richwine saw some tools outside of the house. As soon as

he realized no one was home, he decided to take the tools and he started putting them in

piles. When Eickhoff drove up the driveway, Richwine told her and Woods that he had

just been in contact with Alex and had told him they were going to take the tools to hold

as collateral until the car was returned. Richwine testified that while they loaded the

tools into the SUV, both Eickhoff and Woods questioned whether they had the right

house and whether they were allowed to take the tools. Richwine said he assured them

that he had talked to Alex and that it was okay to take the tools as collateral until he

returned the car.

       On cross-examination, Richwine said that on January 7, 2013, he was convicted of

residential burglary for his role in this matter. He acknowledged that he had suffered

another felony conviction for resisting a peace officer, and he admitted that he loved

Woods and did not want her to be found guilty.

       Richwine also acknowledged on cross-examination that in September 2011 he

reported to law enforcement that Woods had smashed nine windows in their Lakeside



                                              8
home with a metal baseball bat. About a month later, Richwine told an investigator that

he was the one who had broken the windows.

       Richwine further acknowledged that he and Woods had walked up the driveway

together and knocked on a set of white doors that were inside the garage. Nevertheless,

Richwine insisted on cross-examination that he had tricked Eickhoff and Woods into

helping him steal the tools. He stated he was homeless at the time and he and Woods had

spent a couple of nights at Eickhoff's house. Richwine also said he was under the

influence of methamphetamine at the time of the burglary. He testified he had seen Chris

Paul's name on at least two or three of the items he loaded into the vehicle.

       C. The People's Rebuttal

       In rebuttal, the People called Jose Avila, a defense investigator, to the stand. Avila

testified that he interviewed Richwine on January 16, 2013, and in his written summary

of the conversation he wrote: "Richwine stated that he texted several times on his

cellphone, and made Woods and [Eickhoff] believe he had been in touch with [Alex]."

The prosecutor asked Avila, "The word 'pretend' is not in that sentence, correct?" Avila

replied, "What I meant to say here is that [Richwine] was doing the texting motions,

but . . . wasn't really in contact with [Alex] or texting him."

       A sheriff's detective testified she analyzed Richwine's cell phone and determined

no calls or texts were sent on August 10, 2012, between 7:00 and 7:25 p.m.




                                               9
                                       DISCUSSION

I. CLAIM OF EVIDENTIARY ERROR (EXCLUSION OF PROFERRED EVIDENCE OF
       RICHWINE'S PRIOR CONSISTENT STATEMENT TO HIS ATTORNEY)

       Eickhoff first contends her convictions of first degree residential burglary and

grand theft of personal property must be reversed because the court erred by excluding

the proffered testimony of Richwine's attorney, Sheela, that Richwine (a defense witness

at trial) had said early on in the criminal proceedings that he was solely responsible for

the burglary. Eickhoff suggests that the proffered testimony of attorney Sheela was

admissible under Evidence Code section 791 as evidence of a prior consistent statement

by Richwine. We conclude the court did not abuse its discretion because the proffered

testimony was not admissible under Evidence Code section 791 as evidence of a prior

consistent statement.

       A. Background

       As pertinent here, the felony complaint filed in this matter on August 15, 2012,

jointly charged Eickhoff, Richwine, and Woods with one count of first degree residential

burglary (§§ 459, 460). During the preliminary hearing held on August 30 that year,

Eickhoff was represented by Andre Verdun, Richwine was represented by Sheela, and

Woods was represented by Kimberly Vegas. All three defendants were held to answer.

Richwine pleaded guilty to the burglary charge in January 2013.

       The joint trial of the charges and allegations alleged thereafter against Eickhoff

and her remaining codefendant, Woods, in the amended information began on March 26,

2013. After the prosecution concluded its case-in-chief, Richwine testified as a defense


                                             10
witness and acknowledged on cross-examination that he had been convicted of residential

burglary for his role in this matter. Acknowledging also that Woods was his former

girlfriend and they had a child together, Richwine admitted that he loved Woods and did

not want her to be found guilty. Later, at the conclusion of his redirect examination by

Eickhoff's counsel, Richwine also testified, "I don't want to see anybody get convicted."

He then indicated that neither Eickhoff nor Woods was responsible for the residential

burglary.

       The following sidebar exchange then occurred among the court and both defense

counsel:

            "THE COURT: All right. So other than moving the exhibits into
            evidence, both defendants rest; correct?

            "[WOODS'S COUNSEL]: Back up. I think we're going to . . . call
            [Sheela] as a witness.

            THE COURT: To what?

            "[WOODS'S COUNSEL]: That he admitted--

            "[EICKHOFF'S COUNSEL]: Prior consistent statement.

            THE COURT: No, no.

            "[WOODS'S COUNSEL]: Okay.

            "THE COURT: I don't see any prior inconsistent statement that
            would invite [Sheela's] testimony regarding consistent statements
            prior to the inconsistent.

            "[EICKHOFF'S COUNSEL]: The inconsistent statement would be
            the fact that the prosecution has stated that he's a liar and that he's
            not telling the truth; therefore, we're allowed to bring in [a]
            consistent statement to show prior to his motive to lie, he was telling
            [Sheela] that he was the only perpetrator of this crime.

                                              11
          "THE COURT: That may be your interpretation. I don't share it. I
          don't see [Sheela's] testimony as being admissible.

          "[WOODS'S COUNSEL]: Okay.

          "[EICKHOFF'S COUNSEL]: So, Your Honor, can I just make a
          proffer as to what [Sheela] would testify? [¶] [Sheela] would testify
          that during their first discussion regarding their case, and every
          discussion thereafter, he's maintained that [Richwine] duped the
          other two defendants into—

          "[WOODS'S COUNSEL]: You have to whisper.

          "[EICKHOFF'S COUNSEL]: —duped the other two defendants
          into helping him remove property under the guise that they had
          permission to do it, and in fact, he knew—he, and only he, knew that
          they did not have permission to take the property.

          THE COURT: All right. So offer of proof is noted. The ruling
          remains as given, for the reasons given." (Italics added.)

       Both defense counsel then rested.

       B. Evidence Code Section 791

       Evidence Code section 791, which governs the admissibility of evidence of a prior

statement of a witness that is consistent with the witness's current testimony, provides:

          "Evidence of a statement previously made by a witness that is
          consistent with his testimony at the hearing is inadmissible to
          support his credibility unless it is offered after: [¶] (a) Evidence of a
          statement made by him that is inconsistent with any part of his
          testimony at the hearing has been admitted for the purpose of
          attacking his credibility, and the statement was made before the
          alleged inconsistent statement; or [¶] (b) An express or implied
          charge has been made that his testimony at the hearing is recently
          fabricated or is influenced by bias or other improper motive, and the
          statement was made before the bias, motive for fabrication, or other
          improper motive is alleged to have arisen." (Italics added.)



                                             12
       Citing Evidence Code section 791, the California Supreme Court has explained

that "[a] prior statement consistent with a witness's trial testimony is admissible only if

either (1) a prior inconsistent statement was admitted and the consistent statement

predated the inconsistent statement, or (2) an express or implied charge is made that the

testimony is recently fabricated or influenced by bias or other improper motive, and the

consistent statement was made before the bias, motive for fabrication, or other improper

motive is alleged to have arisen." (People v. Smith (2003) 30 Cal.4th 581, 630, original

italics omitted, italics added.)

       C. Analysis

       As noted, Eickhoff and Woods's former codefendant, Richwine─who had pleaded

guilty to the residential burglary at issue in this case─testified at trial for the defense that

only he was responsible for that crime. Defense counsel for Eickhoff and Woods sought

to bolster Richwine's credibility by introducing─as evidence of prior consistent

statements by Richwine─the proffered testimony of Richwine's attorney, Sheela, to the

effect that Richwine had told him during their first discussion about this case and during

every subsequent discussion that only he (Richwine) was responsible for the residential

burglary.

       Eickhoff challenges the court's ruling that the proffered testimony of attorney

Sheela was not admissible as evidence of prior consistent statements by Richwine. Citing

Evidence Code section 791, subdivision (b), Eickhoff asserts the court "overlooked a

basis─other than a prior inconsistent statement─for the admiss[ion] of the proffered

evidence: a charge of recent fabrication."

                                               13
       However, under subdivision (b) of Evidence Code section 791, the proffered

testimony of attorney Sheela regarding Richwine's alleged prior consistent statements

was admissible only if "the consistent statement[s] [were] made before the bias, motive

for fabrication, or other improper motive is alleged to have arisen." (People v. Smith,

supra, 30 Cal.4th at p. 630, italics added.)

       Here, the record shows that if Richwine made the proffered prior consistent

statements to Sheela, he did so after his implicitly charged bias or motive for fabrication

arose. That Richwine's trial testimony exculpating Eickhoff and Woods may have been

motivated by bias, as the Attorney General suggests, is apparent from Richwine's trial

testimony that Eickhoff was his friend, Woods was his former girlfriend, he and Woods

had a child together, he loved Woods, and he did not want her to be found guilty. Later,

at the conclusion of his redirect examination by Eickhoff's counsel, Richwine also

testified, "I don't want to see anybody get convicted."

       The record also shows that Eickhoff, Richwine, and Woods were arrested in this

matter on August 10, 2012, and the felony complaint charging them with residential

burglary was filed five days later on August 15. Although the record does not reflect

when Sheela first discussed this case with Richwine, it does show he was a deputy

alternate public defender who represented Richwine at the preliminary hearing on August

30, 2012. Thus, it is reasonable to conclude Sheela was appointed to represent Richwine

after the felony complaint was filed on August 15, 2012, before he discussed this case

with Richwine.



                                               14
       Based on the foregoing record, we conclude that Richwine's alleged motive to

fabricate and assist his friend Eickhoff and his former girlfriend Woods existed at the

time he made any prior consistent statements to his appointed counsel. Accordingly, we

also conclude the evidence of these prior consistent statements was inadmissible under

Evidence Code section 791, and the court did not abuse its discretion in excluding

Sheela's proffered testimony.

                        II. CLAIM OF INSTRUCTIONAL ERROR

       Eickhoff next contends the court committed prejudicial error in failing to instruct

the jury that circumstantial evidence of her mental state had to be irreconciliable with

innocence in order to justify a conviction. We reject this contention.

       A. Background

       After the last witness testified, during the brief discussion outside the presence of

the jury of the proposed jury instructions, neither the court nor the attorneys for Eickhoff

and Woods mentioned CALCRIM No. 224 (Circumstantial Evidence: Sufficiency of

Evidence) or CALCRIM No. 225 (Circumstantial Evidence: Intent or Mental State),

which the court proposed to give to the jury. At the end of the discussion, the court asked

Eickhoff's counsel whether he had anything else to say about the instructions. He

responded, "No, Your Honor. Thank you."

       As pertinent here, the court instructed the jury under CALCRIM No. 224 as

follows:

           "Before you may rely on circumstantial evidence to conclude that a
           fact necessary to find a defendant guilty has been proved, you must


                                             15
   be convinced that the People have proved each fact essential to that
   conclusion beyond a reasonable doubt.

   "Also, before you may rely on circumstantial evidence to find the
   defendant guilty, you must be convinced that the only reasonable
   conclusion supported by the circumstantial evidence is that the
   defendant is guilty. If you can draw two or more reasonable
   conclusions from the circumstantial evidence, and one of those
   reasonable conclusions points to innocence and another to guilt, you
   must accept the one that points to innocence. However, when
   considering circumstantial evidence, you must accept only
   reasonable conclusions and reject any that are unreasonable."
   (Italics added.)

The court also instructed the jury under CALCRIM No. 225 as follows:

   "The People must prove not only that a defendant did the acts
   charged, but also that she acted with a particular intent or mental
   state. The instructions for each crime explain the intent or mental
   state required.

   "An intent or mental state may be proved by circumstantial
   evidence. Before you may rely on circumstantial evidence to
   conclude that a fact necessary to find the defendant guilty has been
   proved, you must be convinced that the People have proved each
   fact essential to that conclusion beyond a reasonable doubt.

   "Also, before you may rely on circumstantial evidence to conclude
   that a defendant had the required intent or mental state, you must be
   convinced that the only reasonable conclusion supported by the
   circumstantial evidence is that the defendant had the required intent
   or mental state. If you can draw two or more reasonable conclusions
   from the circumstantial evidence, and one of those reasonable
   conclusions supports a finding that the defendant did have the
   required intent or mental state and another reasonable conclusion
   supports a finding that the defendant did not, you must conclude that
   the required intent or mental state was not proved by the
   circumstantial evidence. However, when considering circumstantial
   evidence, you must accept only reasonable conclusions and reject
   any that are unreasonable."




                                     16
       B. Analysis

       Asserting that "[t]he evidence of [her] guilty knowledge and intent was entirely

circumstantial"─and primarily relying on People v. Bender (1945) 27 Cal.2d 164

(Bender), disapproved on other grounds in People v. Lasko (2000) 23 Cal.4th 101,

110─Eickhoff contends the court "committed prejudicial error by failing to instruct the

jury that it could not convict [her] unless the circumstantial evidence was inconsistent

with any rational conclusion other than guilt."4 The Attorney General responds that

Eickhoff forfeited her claim of instructional error by failing to raise it in the trial court.5




4      Specifically, Eickhoff relies on the following language in Bender: "The evidence
which tends to show that defendant killed his wife is entirely circumstantial. Defendant
contends that, therefore, the trial court of its own motion should have given an instruction
embodying the principle (as stated in [citation]) 'that, to justify a conviction, the facts or
circumstances must not only be entirely consistent with the theory of guilt but must be
inconsistent with any other rational conclusion.' It cannot be too strongly emphasized
that such quoted statement enunciates a most important rule governing the use of
circumstantial evidence. In unequivocal language it should be declared to the jury in
every criminal case wherein circumstantial evidence is received." (Bender, supra, 27
Cal.2d at pp. 174-175, italics added.)

5        Citing People v. Livingston (2012) 53 Cal.4th 1145, the Attorney General also
asserts that Eickhoff's claim of instructional error fails on the merits because "the
California Supreme Court has determined that [CALCRIM Nos. 224 and 225] correctly
state the law regarding direct and circumstantial evidence and do not undermine the
reasonable doubt standard or presumption of evidence." However, although Livingston
did cite CALCRIM Nos. 224 and 225 with approval, it did so in rejecting the defendant's
claim that CALJIC No. 2.00 (Direct and Circumstantial Evidence—Inferences)
diminishes the reasonable doubt standard for direct evidence by the manner in which it
differentiates between direct and circumstantial evidence. (Livingston, at pp. 1165-1166.)
As Livingston did not address the same claim Eickhoff raises here, the Attorney General's
reliance on Livingston is misplaced. (See People v. Jennings (2010) 50 Cal.4th 616, 684
["'It is axiomatic that cases are not authority for propositions not considered.'"].)
                                               17
The Attorney General also argues that, even if Eickhoff did not forfeit this claim, it fails

because "the jury was properly instructed with standard CALCRIM instructions."

       We conclude Eickhoff forfeited her claim of instructional error by failing to raise

it in the superior court. "'Generally, a party may not complain on appeal that an

instruction correct in law and responsive to the evidence was too general or incomplete

unless the party has requested appropriate clarifying or amplifying language.'" (People v.

Guiuan (1998) 18 Cal.4th 558, 570 (Guiuan), italics added.)

       Here, the record (discussed, ante) shows, and Eickhoff does not dispute, that she

did not object below to the jury instructions the court gave under CALCRIM Nos. 224

and 225, nor did she request any additional language to clarify or amplify those

instructions, which she now claims were incomplete because they "fail[ed] to instruct the

jury that it could not convict [her] unless the circumstantial evidence was inconsistent

with any rational conclusion other than guilt." (Italics added.)

       It is true, as Eickhoff points out, that "[t]he rule of forfeiture does not apply . . . if

the instruction was an incorrect statement of the law." (People v. Franco (2009) 180

Cal.App.4th 713, 719.) Eickhoff seeks to avoid the forfeiture rule by asserting "the

instructions were not correct in law." Her assertion is unavailing because she has failed

meet her burden of demonstrating that the challenged instructions incorrectly state the

law.

       We independently review whether a jury instruction correctly states the law.

(People v. Posey (2004) 32 Cal.4th 193, 218.)



                                               18
       Here, the essence of Eickhoff's claim of instructional error is her contention that

the instructions the court gave under CALCRIM Nos. 224 and 225 (discussed, ante)

incorrectly stated the law because they did not instruct the jury it could not convict her

unless the circumstantial evidence was "inconsistent with any rational conclusion other

than guilt." As noted, similar language appears in Bender, supra, 27 Cal.2d at page 175.

       It is true that neither CALCRIM No. 224 nor CALCRIM No. 225 contains the

foregoing Bender language on which Eickhoff relies. However, Eickhoff cites no

authority, and we are aware of none, that requires the use of this precise language.

Furthermore, the concept that the Bender language─"inconsistent with any other rational

conclusion" other than guilt─seeks to convey is adequately conveyed in language

contained in both CALCRIM No. 224 and CALCRIM No. 225. Specifically, the more

general instruction, CALCRIM No. 224, states in part: "[B]efore you may rely on

circumstantial evidence to find the defendant guilty, you must be convinced that the only

reasonable conclusion supported by the circumstantial evidence is that the defendant is

guilty." (Italics added.) CALCRIM No. 225, which specifically pertains to the

sufficiency of circumstantial evidence showing the defendant had the required criminal

intent or state of mind, similarly states in part: "[B]efore you may rely on circumstantial

evidence to conclude that a defendant had the required intent or mental state, you must be

convinced that the only reasonable conclusion supported by the circumstantial evidence

is that the defendant had the required intent or mental state." (Italics added.)

       The pertinent phrase contained in CALCRIM Nos. 224 and 225─"the only

reasonable conclusion"─conveys the same meaning as the Bender phrase "inconsistent

                                             19
with any other rational conclusion" other than guilt. Both of the challenged standard

instructions convey to the jury that, "'to justify a conviction, the facts or circumstances

must not only be entirely consistent with the theory of guilt but must be inconsistent with

any other rational conclusion.'" (Bender, supra, 27 Cal.2d at p. 175, italics added.)

       Accordingly, we reject Eickhoff's contention that CALCRIM Nos. 224 and 225

"were not correct in law," and we conclude Eickhoff forfeited her claim of instructional

error by failing to raise it in the superior court. (Guiuan, supra, 18 Cal.4th at p. 570.)

                          III. CLAIM OF CUMULATIVE ERROR

       Eickhoff also asserts the cumulative effect of both the court's erroneous exclusion

of "[Sheela's] testimony that Richwine had spoken from the beginning of his tricking his

codefendants" and its erroneous "fail[ure] to instruct [the jury] that the circumstantial

case had to exclude rational conclusions inconsistent with guilt" was prejudicial and

requires reversal of her convictions. We reject this assertion.

       "If none of the claimed errors were individual errors, they cannot constitute

cumulative errors that somehow affected the . . . verdict." (People v. Beeler (1995) 9

Cal.4th 953, 994, abrogation on other grounds recognized by People v. Pearson (2013)

56 Cal.4th 393, 462.)

       Here, we have concluded that both of the foregoing claims of error are unavailing.

Accordingly, we reject Eickhoff's claim of prejudicial cumulative error. (People v.

Beeler, supra, 9 Cal.4th at p. 994.)




                                              20
                             IV. PROBATION CONDITIONS

       Eickhoff next contends that "[f]ive conditions of [her] probation [are]

constitutionally invalid." In fact, as we discuss, post, she challenges eight conditions of

her probation. We conclude Eickhoff forfeited her right to challenge these probation

conditions by failing to assert her challenges at the sentencing hearing.

       A. Background

       Eickhoff was on probation in another case (Super. Ct. San Diego County, 2011,

No. SCE315603) when she committed her crimes in the current case in August 2012.

Specifically, on December 15, 2011, she pleaded guilty in the prior case to a felony

charge of using the personal identification of another to obtain $8,058 in goods in

violation of section 530.5, subdivision (a). In February 2012 she was granted three years

of formal probation. Eickhoff's convictions in current case constituted a violation of her

probation, and the two cases were scheduled together for sentencing on April 26, 2013.

       Eickhoff was 53 years of age at the time of sentencing in this matter on April 26,

2013. Eickhoff's counsel submitted a statement in mitigation on her behalf, informing the

court that, "after a long period of sobriety," she suffered a "relapse on her old

[methamphetamine] addiction, which caused her to make a bad series of judgment calls."

Counsel indicated that following her release from custody after her arrest Eickhoff had

been participating in substance abuse counseling and had passed "every test."

       The probation report indicated that Eickhoff began drinking alcohol at the age of

15, and she last consumed alcohol on August 10, 2012, the date of her offense in this

matter.

                                             21
       1. Sentencing and the eight challenged conditions of probation

       At sentencing in April 2013, the court placed Eickhoff on five years of formal

probation, subject to numerous terms and conditions set forth in the probation order.

Eickhoff indicated she had discussed the conditions with her attorney and she understood

and accepted them. Specifically, the court asked her: "Do you understand and accept

probation in these cases on the conditions outlined by the Court and further discussed

with you by your attorneys?" Eickhoff replied, "Yes, Your Honor I do."

       Among the numerous conditions of probation the court set forth in the probation

order, all of which Eickhoff accepted, are the following eight conditions that Eickhoff

now challenges for the first time:

       (1) Term 6.b: "Follow such course of conduct as the P.O. [(probation officer)]

communicates to defendant."

       (2) Term 6.e: "Comply with a curfew if so directed by the [(probation officer)]."

       (3) Term 6.o: "Seek and maintain full-time employment, schooling, or a full-time

combination thereof if directed by the [(probation officer)]."

       (4) Term 8.b: "Do not knowingly use or possess alcohol if directed by the

[(probation officer)]."

       (5) Term 8.c: "Attend 'Self-help' meetings if directed by the [(probation officer)]."

       (6) Term 8.e: "Take [A]ntabuse (if physically able, as determined by a licensed

physician) if directed by the [(probation officer)] and continue in the program until

excused. If not physically able to take [A]ntabuse, submit a written statement from

physician verifying inability to do so."

                                            22
       (7) Term 8.j: "Participate in, comply with, and bear all costs associated with a

continuous alcohol monitoring device if directed by the [(probation officer)]."

       (8) Term 10.g: "Obtain [(probation officer)] approval as to . . . residence."

       B. Analysis

       In People v. McCullough (2013) 56 Cal.4th 589, 593, the California Supreme

Court recently explained that, as it had "observed on numerous occasions, '"'a

constitutional right,' or a right of any other sort, 'may be forfeited in criminal . . . cases

by the failure to make timely assertion of the right before a tribunal having jurisdiction to

determine it.'"' [Citation.] 'Ordinarily, a criminal defendant who does not challenge an

assertedly erroneous ruling of the trial court in that court has forfeited his or her right to

raise the claim on appeal.' [Citation.] '"The purpose of this rule is to encourage parties to

bring errors to the attention of the trial court, so that they may be corrected. [Citation.]"'

[Citation.] Additionally, '[i]t is both unfair and inefficient to permit a claim of error on

appeal that, if timely brought to the attention of the trial court, could have been easily

corrected or avoided.'"

       Here, as already discussed, Eickhoff, who was on probation when she committed

her current offenses, indicated at sentencing that she had discussed the new conditions of

probation with her attorney, she understood them, and she accepted them. By failing to

challenge the eight subject conditions of probation at the sentencing hearing, Eickhoff

forfeited her right to challenge them on appeal, even on constitutional grounds. (People

v. McCullough, supra, 56 Cal.4th at p. 593.)



                                               23
                                 V. CALCRIM NO. 220

       Last, Eickhoff claims that CALCRIM No. 2206 does not define the concept of

reasonable doubt in a manner that is consistent with the requirements of federal due

process. In support of this claim, Eickhoff asserts that former CALJIC No. 290 defined

proof beyond a reasonable doubt as "an abiding conviction, to a moral certainty, of the

truth of the charge." Noting that CALCRIM No. 220 defines proof beyond a reasonable

doubt as "proof that leaves you with an abiding conviction that the charge is true,"

Eickhoff complains that without the words "to a moral certainty," CALCRIM No. 220

unconstitutionally fails to tell the jurors "how convinced they must be."

       We need not, and do not, reach the merits of Eickhoff's claim. As discussed, ante,

the California Supreme Court has explained that, "'[g]enerally, a party may not complain

on appeal that an instruction correct in law and responsive to the evidence was too

general or incomplete unless the party has requested appropriate clarifying or amplifying

language.'" (Guiuan, supra, 18 Cal.4th at p. 570.)


6       The court instructed the jury under CALCRIM No. 220 as follows: "The fact that
a criminal charge has been filed against a defendant is not evidence that the charge is
true. You must not be biased against a defendant just because she has been arrested,
charged with crimes, 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 a defendant guilty
beyond a reasonable doubt, she is entitled to an acquittal and you must find her not
guilty." (Italics added.)
                                            24
       Here, the essence of Eickhoff's claim is that the CALCRIM No. 220 instruction on

the concept of reasonable doubt that the court gave to the jury was unconstitutionally

incomplete because it should have included the phrase "to a moral certainty" to tell the

jurors how convinced of the truth of the charges they needed to be in order to conclude

that the People had met their burden of proving her guilt beyond a reasonable doubt.

However, the Supreme Court has recently held that the standard CALCRIM No. 220

instruction adequately defines the concept of reasonable doubt. (People v. Aranda (2012)

55 Cal.4th 342, 349.) As the record shows that Eickhoff did not object below to the

CALCRIM No. 220 instruction the court gave to the jury, and she did not request any

additional language to clarify or amplify that instruction which she now claims was

incomplete, we conclude she has forfeited her claim that CALCRIM No. 220 does not

define the concept of reasonable doubt in a manner that is consistent with the

requirements of federal due process. (Guiuan, supra, 18 Cal.4th at p. 570; see People v.

McCullough, supra, 56 Cal.4th at p. 593 [a constitutional right may be forfeited in a

criminal case by the failure to make timely assertion of the right before a tribunal having

jurisdiction to determine it].)




                                            25
                                 DISPOSITION

    The judgment is affirmed.



                                               NARES, J.

WE CONCUR:



          BENKE, Acting P. J.



                     IRION, J.




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