Filed 11/10/15 P. v. Segundo CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068672
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CRM028873)
                   v.

LORENZO RANGEL SEGUNDO,                                                                  OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Merced County. Ronald W.
Hansen, Judge.
         Gabriel Bassan, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
                                         -ooOoo-
       A jury found defendant Lorenzo Rangel Segundo guilty of one count of felony
animal cruelty after a dog was beaten to death. The trial court sentenced defendant to
three years’ probation, which included six months in jail. On appeal he asserts the trial
court erroneously excluded character evidence he wished to introduce to establish he
would not harm a dog, and the prosecutor committed misconduct. We conclude there
was no reversible error and affirm the conviction. However, as the People concede, some
of the conditions of probation were improperly imposed. Therefore, we will order those
conditions vacated.
                      FACTUAL AND PROCEDURAL SUMMARY
       The complaint, which was deemed the information after the preliminary hearing,
charged defendant with one count of animal cruelty in violation of Penal Code section
597, subdivision (a).
       Liliana Reyes testified that on the day of the incident, she was in her apartment
when her son asked her to look out of the window. Reyes observed defendant, whom she
recognized from the neighborhood, beating a small dog to death with a piece of wood.
Reyes only knew defendant by his nickname, Pimpo. Reyes was looking through a
window, and defendant was six to seven feet away. When defendant stopped hitting the
obviously deceased canine, he rinsed his head off with water from a hose (apparently
from his brother’s apartment). Reyes went outside and asked defendant why he killed the
dog, and what was he going to do with the animal. Defendant said he would pick up the
dog. He then retrieved a bucket from his brother’s apartment and removed the dog.
Children from the neighborhood later found the dog in a trash dumpster.
       A neighbor, Yolanda Valdez, reported the crime to the police. Atwater Police
Officer Scott Duncan responded to the scene and obtained a statement from Reyes. He
asked some children in the area if they knew where Pimpo lived. The children pointed



                                             2.
him to an apartment. An occupant in the apartment identified Pimpo as defendant, and
directed Duncan to the address at which defendant lived. While Duncan was
investigating the scene, defendant arrived and introduced himself. When Duncan asked
defendant about the incident, defendant denied he beat the dog.
       An autopsy of the dog established the cause of death as blunt force trauma. The
dog’s injuries were consistent with being struck by a piece of wood, or being hit by a
vehicle.
       Defendant testified in his defense, denying he killed the dog, or had any
involvement with the dog. He claimed that while he was familiar with Reyes, she must
have confused him with another person, perhaps his brother.
       The jury found defendant guilty. The trial court imposed a sentence of three
years’ probation which included six months in local custody, as well as other terms and
conditions.
                                     DISCUSSION
I.     Opinion Evidence.
       Defendant attempted to introduce evidence of his good character pursuant to
Evidence Code section 1102. The general rule is that evidence of a person’s character,
including evidence in the form of an opinion, evidence of a person’s reputation, and
evidence of specific incidents of conduct, is admissible unless otherwise prohibited by
statute. (Evid. Code, § 1100.) Evidence Code section 1101 is the primary limitation
imposed on character evidence. This section prohibits the introduction of evidence of a
person’s character to prove his conduct on a specific occasion, with an exception not
relevant here. Defendant relied on Evidence Code section 1102, which specifically
makes admissible evidence of a defendant’s character, in the form of opinion or
reputation evidence, when offered by a defendant in a criminal action to prove his or her




                                            3.
conduct on a specific occasion was in conformity with his or her character. Defendant
attempted to illicit evidence of his character to prove he would not mistreat an animal.
       After the prosecution objected to the proposed testimony, the trial court held a
hearing pursuant to Evidence Code section 402 to determine if the witness would be
allowed to testify. The witness proffered by defendant was his sister-in-law, Adilene
Martinez. Martinez testified she had known defendant for three years, and he had lived
with Martinez and her husband, defendant’s brother, for three months. She also
interacted with defendant at family events. While she had contact with defendant’s
family, friends and neighbors, she never discussed defendant with any of them.
However, she did not hear anyone suggest defendant was ever cruel to animals. On
cross-examination Martinez stated she had never spoken to anyone about how defendant
treated animals.
       The trial court noted Martinez did not testify about her opinion of whether
Martinez would harm an animal. Nor had Martinez discussed defendant’s reputation
regarding animals with anyone. The only reputation type evidence Martinez could
provide was that she had not heard anyone state that defendant treated animals poorly. It
then concluded that Martinez had insufficient foundation to testify about defendant’s
reputation for the treatment of animals. When defense counsel stated that, if asked,
Martinez would opine that defendant treated animals fairly, the trial court observed that
such an opinion would be based on her observations of defendant interacting with a dog
he shared with his brother, so it would not be admissible. Defendant asserts the trial
court erred in prohibiting evidence of his character either in the form of reputation or
opinion evidence.
       Evidence Code section 1102 “allows a criminal defendant to introduce evidence,
either by opinion or reputation, of his character or a trait of his character that is ‘relevant
to the charge made against him.’ [Citation.] Such evidence is relevant if it is inconsistent



                                               4.
with the offense charged—e.g., honesty, when the charge is theft—and hence may
support an inference that the defendant is unlikely to have committed the offense. In
appropriate cases, such circumstantial evidence ‘may be enough to raise a reasonable
doubt in the mind of the trier of fact concerning the defendant’s guilt.’ [Citations.]”
(People v. McAlpin (1991) 53 Cal.3d 1289, 1305 (McAlpin).) As explained in McAlpin,
we are required to read into Evidence Code section 1102 the requirements of Evidence
Code section 800 which addresses lay opinion testimony. Section 800 limits lay opinion
testimony to an opinion that is rationally based on the perceptions of the witness, and
which is helpful to a clear understanding of the testimony. (McAlpin, supra, at p. 1306.)
       Applying these rules, it is apparent the trial court erred in part, but was also correct
in part. We begin by noting that character evidence related to defendant’s treatment of
animals was obviously relevant. Despite the prosecutor’s repeated protestations, such
testimony would be inconsistent with the claim that defendant beat the dog to death. It
would thus support the inference that defendant was unlikely to have committed the
offense, and supported defendant’s theory that Reyes was mistaken when she identified
him as the perpetrator.
       Even though appropriate character evidence was admissible, we find no error in
the trial court’s decision to prohibit Martinez from testifying about defendant’s reputation
for treating animals properly. The trial court reasoned, and we agree, that Martinez’s
testimony established she was not familiar with any reputation defendant may have had
on this topic. At no time did Martinez discuss defendant’s reputation for the treatment of
animals with any friends, family members, or members of the community. Therefore, if
defendant had a reputation for treating animals properly, Martinez had absolutely no
personal knowledge of that reputation. Similarly, if Segundo did not have a reputation
for abusing animals, Martinez was not aware of it.




                                              5.
       We conclude, however, the trial court erred when it prohibited Martinez from
testifying about her opinion of defendant’s character for the treatment of animals. The
trial court reasoned that such an opinion was inadmissible because it would have to be
based on Martinez’s observations of defendant’s interactions with animals. As explained
in McAlpin, Evidence Code section 800 requires such an opinion be based on personal
observations. As noted above, Martinez would have testified that in her opinion
defendant treated animals fairly based on her personal observations of his interactions
with a dog he shared with his brother. Accordingly, Martinez’s lay opinion about
defendant’s character for the treatment of animals should have been admitted.
       Even though we find error, reversal is required only if we conclude it was
reasonably probable defendant would have achieved a better result had the error not
occurred. (Cal. Const., art. VI, § 13; Evid. Code, § 354; McAlpin, supra, 53 Cal.3d at p.
1311.) We will address the prejudice issue in section III of this opinion.
       At oral argument, appellate counsel argued, in essence, that McAlpin required us
to reverse the conviction without performing a prejudice analysis, i.e., per se reversal was
required. McAlpin provides no support for this argument, and, indeed, reaches the
opposite conclusion. To explain why appellate counsel’s reliance on McAlpin is
misplaced, we will provide a more detailed analysis of the case.
       McAlpin was convicted committing a lewd and lascivious act with a child under
the age of 14 in violation of section 288, subdivision (a). McAlpin met the victim’s
mother, Anita, at a church function. On the day in question Anita took the victim and her
other two children shopping to buy birthday gifts for the victim. They then drove to
McAlpin’s house to visit. All five individuals eventually ended up lying on McAlpin’s
bed watching television. Anita left the bedroom and took the youngest child outside to
play when he became restless.




                                             6.
         The victim testified that after Anita left, McAlpin began touching her vaginal area
and eventually inserted his finger in her vagina. After a few minutes the victim said she
had to go to the bathroom, but went to her mother and reported the incident.
         McAlpin denied touching the victim inappropriately, instead accusing the victim
of touching his genitals after the mother went outside with the youngest child. McAlpin
also testified that he immediately told the victim to stop and reported the incident to
Anita.
         To support his version of the events, defense counsel called two character
witnesses. One testified she had dated McAlpin for a short while and stayed in contact
with him thereafter. Through her contacts with McAlpin and his friends, she learned he
had an excellent reputation for truth and veracity. The other witness was a college friend
and co-worker. He testified that McAlpin was well respected in the company they
worked for, and he had a “‘high reputation among his fellow workers for truth and
veracity.’” (McAlpin, supra, 53 Cal.3d at p. 1297.)
         The issue before the Supreme Court that is relevant to this case was the trial
court’s refusal to allow three witnesses to testify about McAlpin’s sexuality. Two of the
proposed witnesses were women who dated McAlpin for a period of time and had sexual
relations with him. Each woman also had a daughter of her own, and remained friendly
with McAlpin after their intimate relationship ended. The women were expected to
testify that in their opinion, McAlpin was not a sexual deviant, basing their opinions on
their “normal” experiences with McAlpin, and their observations of his conduct around
their daughters. (McAlpin, supra, 53 Cal.3d at p. 1305.) The third witness was a close
male friend of McAlpin who would also testify that in his opinion McAlpin was not a
sexual deviant. This opinion was based on McAlpin’s normal sexual conduct with adult
women the witness observed over the years. (Ibid.)




                                               7.
       The Supreme Court began its analysis by noting that in People v. Stoll (1989) 49
Cal.3d 1136 it held that (1) “the fact that the defendant is not a sexual deviant is a
relevant character trait within the meaning of section 1102, and (2) the statute allows a
defendant to prove that trait by the opinion testimony of an expert witness. [Citation.]”
(McAlpin, supra, 53 Cal.3d at pp. 1305-1306.) The Supreme Court next concluded the
rule stated in Stoll also was applicable to lay witness testimony so long as the testimony
met the requirements of Evidence Code section 800, i.e., the lay witness’s testimony was
rationally based on the perceptions (observations) of the witness. (McAlpin, supra, 53
Cal.3d at pp. 1306-1308.)
       When applying this rule to McAlpin’s arguments, the Supreme Court found the
male proposed witness did not base his opinion on personal observations of McAlpin’s
conduct with children, and was thus properly excluded. Similarly, the female proposed
witness testimony about their sexual experiences with McAlpin was not based on
observations of McAlpin’s conduct with children and was properly excluded. However,
the women’s opinion that McAlpin was not a person likely to commit a lewd and
lascivious act on a child which was based on their personal observations of McAlpin’s
interactions with their daughters was “both a proper subject of lay opinion testimony and
relevant to the charge of child molestation.” (McAlpin, supra, 53 Cal.3d at p. 1309.)
       The Supreme Court next rejected the Attorney General’s argument that the
testimony of the women based on their personal observations was inadmissible because it
permitted McAlpin to prove a character trait through specific acts. The trial court and
appellate court in McAlpin’s case agreed with this argument, as did the trial court in this
case. The Supreme Court disagreed. “[T]he witnesses proposed to testify that they
observed defendant’s behavior with their children throughout the course of their
relationship with him, and their opinion that he is not a person given to lewd conduct
with children arose from that experience as a whole. Thus viewed, the proffered



                                              8.
testimony was intended to prove the relevant character trait not by specific acts of
‘nonmolestation,’ but by the witnesses’ opinion of that trait based on their long-term
observation of defendant’s course of consistently normal behavior with their children.
The trial court should have allowed such testimony.” (McAlpin, supra, 53 Cal.3d at pp.
1309-1310, fn. omitted.)
       The next topic addressed by the Supreme Court was the proposed testimony of the
women witnesses that McAlpin had a reputation for “‘normalcy in his sexual tastes.’”
(McAlpin, supra, 53 Cal.3d at p. 1310.) To the extent this phrase could be interpreted to
mean that McAlpin did not have a reputation in the community for being sexually
attracted to young girls, the Supreme Court concluded “the proposed testimony is
relevant to a charge of child molestation. Evidence that a defendant does not have a bad
reputation for a relevant character trait is admissible as tending to show that he has a
good reputation for that trait. [Citations.] And under either construction the testimony is
not objectionable on the ground discussed in a preceding portion of this opinion, because
it is evidence of reputation rather than lay opinion. ‘Reputation is not what a character
witness may know about defendant. Reputation is the estimation in which an individual
is held; in other words, the character imputed to an individual rather than what is actually
known of him either by the witness or others.’ [Citation.] The rule that lay opinion
testimony must be based on the witness’s personal observation thus does not apply to
reputation testimony, and indeed the Evidence Code imposes no such requirement. The
trial court should therefore have allowed this testimony.” (Id. at pp. 1310-1311.)
       The Supreme Court also concluded the trial court erred in excluding the proposed
opinion testimony that McAlpin was a person of high moral character. “In the context of
the offer of proof we construe the word ‘moral’ in this phrase to refer to sexual morality.
Thus construed, ‘moral character’ is a trait that is relevant to a sex offense charge,
including the present prosecution for child molesting. We are cited to no California



                                              9.
decision that squarely so holds, but such evidence has routinely been admitted in trials for
sex offenses without drawing adverse comment by reviewing courts. [Citations.] Again,
therefore, the trial court should have allowed this testimony.” (McAlpin, supra, 53 Cal.3d
at p. 1311.)
       The next topic addressed was the issue of prejudice, the issue Segundo’s appellate
counsel repeatedly referred to in oral argument. The Supreme Court’s conclusion is
clear. “The court’s error in excluding the foregoing three additional items of character
testimony is governed by the standard of prejudice prescribed both by Constitution (art.
VI, § 13) and by statute (Evid. Code, § 354), and explained in People v. Watson (1956)
46 Cal.2d 818, 836. [Citations.]” (McAlpin, supra, 53 Cal.3d at p. 1311, fn. omitted.)
       In affirming the judgment, the Supreme Court noted there were no contradictions
or admitted untruths in the victim’s testimony, no motive for the victim to fabricate the
charge, the victim’s testimony was not impeached in any way, her reputation for truth and
veracity was not challenged, and her testimony was plausible. (McAlpin, supra, 53
Cal.3d at p. 1312.)
       The Supreme Court also noted it is likely the jury would not have given the
excluded testimony great weight because it has been observed that “reputation testimony,
the traditional means of proving character, is ‘the least reliable’ form of such evidence
and is ‘little more than accumulated hearsay.’ [Citation.]” (McAlpin, supra, 53 Cal.3d at
p. 1312.) Finally, the Supreme Court concluded the evidence was not evenly balanced as
the victim’s testimony was supported by Anita’s testimony, and the jury would have to
conclude both were lying to accept McAlpin’s defense. For all of these reasons, the
Supreme Court affirmed the judgment despite the trial court’s error in excluding the
proposed character evidence. (Id. at p. 1313.)
       Nowhere in the majority opinion was there any discussion of a per se reversal rule
when an error was made in excluding character evidence. Instead of citing the majority



                                            10.
opinion, and the applicable rule of law, appellate counsel in this case referred repeatedly
to Justice Broussard’s dissent in McAlpin. Justice Broussard stated “I cannot join in the
majority’s analysis of the trial court’s ruling on the good character evidence proffered by
defendant or, in particular, in the conclusion that the trial court’s error in excluding much
of this evidence was not prejudicial. Past California decisions have repeatedly
recognized that in cases of this nature, in which a defendant is accused of a sexual
offense against a child and the jury’s determination necessarily turns on the relative
credibility of the defendant and the alleged child victim, a defendant’s right to introduce
evidence of his good moral character is of crucial importance. Such evidence may be the
only, or at least the most significant, evidence that an innocent defendant can present to
support his own denial of the offense. As a consequence, the authorities suggest that in
this context the erroneous exclusion of such good character evidence generally cannot be
found harmless. This general principle has particular force in the present case because
the record discloses that this was a much more closely balanced case than the majority
opinion allows. Given the nature of the trial court’s error and the state of the evidence, I
believe that reversal is clearly required.” (McAlpin, supra, 53 Cal.3d at p. 1313, dis. opn.
Broussard, J.).)
       Since appellate counsel has not cited any case in which a majority of the Supreme
Court has adopted a rule of per se reversal as espoused by Justice Broussard, and we are
not aware of any such case, reliance on the dissent is misplaced. This conclusion is
obvious considering the majority opinion in McAlpin did not apply such a rule, instead
affirming a judgment where error occurred after applying the Watson standard.
       Also significant is the fact that Justice Broussard limited his comment to cases “in
which a defendant is accused of a sexual offense against a child and the jury’s
determination necessarily turns on the relative credibility of the defendant and the alleged
child victim.” (McAlpin, supra, 53 Cal.3d at p. 1313, dis. opn. Broussard, J.).) Segundo



                                             11.
was not charged with child molestation, he was charged with cruelty to animals.
Moreover, there was no question in this case that a crime occurred; the only question was
who committed the crime. And while the credibility of witnesses was certainly an issue,
it is also an issue in virtually every criminal case.
       It is in direct contradiction to our Constitution (art. VI, § 13), the applicable statute
(Evid. Code, § 354), and binding Supreme Court precedent (McAlpin, supra, 53 Cal.3d at
p. 1311), to assert reversal is required without considering whether a miscarriage of
justice occurred simply because the trial court erroneously excluded a certain class of
evidence.
II.    Prosecutorial Misconduct.
       Prior to trial, the issue of impeachment of defendant was discussed. The
prosecutor indicated that, if defendant testified he would not hurt a dog, then he would
impeach defendant by asking if he had shot Yolanda Valdez’s dog.1 Yolanda Valdez was
the person who reported the crime to the police. When she did so, she apparently also
reported that she thought the person who killed the dog was “the same guy that shot my
dog.” The prosecutor did not have any independent proof that defendant actually did so.
Indeed, it does not appear the prosecutor, or anyone else, ever spoke to Valdez about her
accusation. The prosecutor admitted he had no evidence available to support Valdez’s
accusation, and if defendant denied he shot Valdez’s dog, that would be the end of the
issue. Nonetheless, the prosecutor insisted he had a good faith basis for asking the
question. Defense counsel objected to the proposed question. The trial court overruled
the objections concluding the prosecutor had the right to ask the question.



1       Apparently the prosecutor misspoke when identifying the owner of the dog, whom
he identified as Yolanda Reyes. The prosecutor made it clear the reporting party was not
Liliana Reyes, and later identified the reporting party as Yolanda Valdez. For the sake of
clarity we will refer to the reporting party as Yolanda Valdez.


                                              12.
       The prosecutor began his cross-examination of defendant by confirming defendant
testified that he had never before hurt a dog. The next question was “Isn’t it true that you
shot your neighbor’s dog, Yolanda Valdez?” The trial court sustained defense counsel’s
objection, and ordered the jury to disregard the question. Outside the presence of the
jury, the trial court explained the change in ruling by stating that when it approved the
question, it was referring to a question that could be posed to Martinez if she testified as a
character witness.
       Defendant asserts the prosecutor committed misconduct by asking the question
about shooting Valdez’s dog since the prosecutor had no proof defendant was responsible
for doing so. The only information the prosecutor had was the statement made by Valdez
in her call to the emergency operator, and even then all Valdez stated was she thought
defendant had shot her dog.
       It is obvious the question about Valdez’s dog was improper, and the trial court
initially erred when it ruled the question could be asked. “A prosecutor may not ask
questions of a witness suggesting facts harmful to a defendant without a good faith belief
that such facts exist. [Citation.]” (People v. Pearson (2013) 56 Cal.4th 393, 434; see
also People v. Bolden (2002) 29 Cal.4th 515, 562.) The prosecutor repeatedly asserted
that Valdez’s unconfirmed belief provided a good faith basis for asking the question.
This position is not well taken. A good faith belief exists when the prosecutor reasonably
believes the question will be answered in the affirmative, or if not, that he will be able to
produce a witness who can provide admissible testimony to prove the facts insinuated in
the question. (People v. Mooc (2001) 26 Cal.4th 1216, 1233; People v. Bolden, supra, 29
Cal.4th at pp. 563-564.) The prosecutor in this case did not expect defendant to admit he
shot Valdez’s dog, nor did he have any proof to support the accusation. Clearly this
prosecutor did not know if there were any facts to support Valdez’s belief because he did
not perform any investigation. Accordingly, the prosecutor did not have a good faith



                                             13.
belief that defendant shot Valdez’s dog, and should never have sought permission from
the trial court to ask the question.
       The People concede the question was improper, but assert the error was not
prejudicial. We will address this issue in the following section.
III.   Prejudice.
       Two errors occurred in the trial, first when the trial court precluded evidence of
Martinez’s opinion about defendant’s character, and second when the trial court initially
permitted the prosecutor to ask defendant if he shot Reyes’s dog without a good faith
belief defendant had done so. Defendant argues that each error by itself requires reversal
of the judgment, and if not, the combined error demands reversal. The People assert
reversal is not required because defendant did not suffer any prejudice.
       The error in the admission or exclusion of evidence is reversible only if the result
of the ruling was a miscarriage of justice. (Cal. Const., art. VI, § 13; Evid. Code, §§ 353,
354.) A miscarriage of justice occurs when, after examination of the entire cause, we
conclude it is reasonably probable a result more favorable to the defendant would have
been reached had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836.)
We conclude neither error, either by itself or when the combined effect is considered,
resulted in prejudice sufficient to require reversal under the Watson standard.
       It is unlikely Martinez’s opinion that defendant would not hurt a dog would have
swayed the jury. She was married to defendant’s brother, thus suggesting bias. While
she had known defendant for three years, and lived with him for a short period of time,
she did not have any real interaction with him in relation to animals other than with the
dog defendant jointly owned with his brother. This dog was kept at the apartment of
Martinez and her husband, suggesting defendant’s interaction with it was limited.
Martinez did not testify about how Segundo treated this dog. She did testify that she did
not see Segundo treat a neighbor’s dog poorly. Moreover, how defendant treated his dog



                                            14.
was not necessarily indicative of how he would treat other dogs. Accordingly,
Martinez’s opinion did not have a significant foundation, and would not be persuasive.
       Similarly, the circumstances surrounding the question about the death of Reyes’s
dog minimized the impact of the improper question. While the question improperly
suggested the prosecutor had evidence damaging to defendant that was not presented to
the jury, the trial court immediately sustained defense counsel’s objection and ordered the
jury to disregard the question. When the prosecutor asked for a side bar to discuss the
ruling, the trial court denied the request and ordered the prosecutor to move on,
reinforcing the trial court’s order to disregard the question. The standard instructions also
informed the jury that the questions asked were not evidence, and the jury was not to
consider questions asked to which objections were sustained. We presume the jury was
comprised of intelligent persons and that they understood and followed the trial court’s
instructions. (People v. Richardson (2008) 43 Cal.4th 959, 1028.) The combination of
these circumstances minimized any possible prejudice for this isolated question.
       In contrast, the evidence of defendant’s guilt was overwhelming. Reyes positively
identified defendant as the perpetrator, and identified him by the nickname he used in the
neighborhood. She testified she was 100 percent certain Segundo was the perpetrator.
Reyes testified she was familiar with defendant through contacts she had with him in the
neighborhood. Reyes also stated she viewed defendant from a very short distance, and
even confronted him about disposition of the dead dog. It is difficult to dispute this
identification because Reyes knew defendant, had ample opportunity to observe him
closely, and was able to positively identify him as the perpetrator.
       The only evidence to contradict Reyes’s testimony was provided by defendant
himself. Obviously, defendant had strong motive for denying that he hurt the dog, and
his inability to provide any evidence to corroborate his denial rendered it less than
persuasive.



                                            15.
       During oral argument, appellate counsel relied extensively on the purported
similarity in appearance between Segundo and his brother to suggest Reyes was
mistaken. The record does not support this argument. The only evidence to suggest the
two brothers looked alike came from Segundo. He testified his brother was three years
older, slightly taller, about the same weight, and with hair a little longer than Segundo’s
hair. According to Segundo, both brothers had similar mustaches. Segundo testified that
his mother, aunts, and other friends have confused Segundo and his brother in the past.
This is hardly evidence that the two shared a nearly identical appearance. We again note
Segundo’s motive to fabricate testimony favorable to his defense. His brother did not
appear at trial, so the jury could not perform a visual comparison.
       Moreover, Reyes expressed no confusion when differentiating Segundo from his
brother. When asked about whether she knew “Pimpo,” Segundo’s nickname in the
neighborhood, Reyes said she did because his uncle and his godparents lived in the
neighborhood, and “his brother just moved.” She positively identified Segundo as
“Pimpo.” She testified that “Pimpo” killed the dog. She identified the piece of wood
used to kill the dog as from the “fence where his brother lives.” She testified that
Segundo retrieved a bucket from in front of his brother’s apartment to dispose of the dead
dog. She identified his brother’s apartment as very close to her apartment. She
confirmed that Segundo’s brother moved into the apartment before the dog was killed.
She noted that a female bulldog belonged to either Segundo or his brother. She knew
Segundo lived nearby with his mother, but did not know exactly where he lived.
       Reyes admitted she never had any conversations with Segundo, and she did not
know his brother’s name. However, she had spoken with the brother’s wife, with whom
she was on good terms.




                                             16.
       This testimony strongly suggests that Reyes could differentiate between Segundo
and his brother. The fact Segundo admitted he did not have a conflict with Reyes further
bolsters her testimony because she had no motive to fabricate her identification.
       Finally, we also reject appellate counsel’s contention that character evidence is
particularly powerful, or crucial to the defense. Appellate counsel argued the defense in
this case was mistaken identity, and since Reyes did not know the individual she mistook
for Segundo (his brother), the evidence that Segundo had a reputation for treating animals
properly would have swayed the jury. As the Supreme Court noted in McAlpin,
reputation testimony is the least reliable form of evidence because it is often little more
than accumulated hearsay. (McAlpin, supra, 53 Cal.3d at p. 1311.) To the extent
Martinez would have testified to her opinion, as explained above, she was an arguably
biased witness and the basis of her opinion was limited. This evidence would have had
little persuasive value in this case.
       For the same reasons that each error was not prejudicial, the cumulative effect of
the two errors does not require reversal. Under these circumstances, any prejudice
caused by the errors was minimal, and it was not reasonably probable that in the absence
of error defendant would have achieved a more favorable result.2
IV.    Terms of Probation.
       Defendant argues the trial court erred when it imposed the following conditions of
probation: (1) reimbursement of attorney fees to the County of Merced, (2) substance
abuse and mental health counseling, and (3) electronic monitoring. The Attorney General
concedes the attorney fee provision and the mental health counseling should be vacated,
but argues the remaining conditions were properly imposed.

2      Defendant also makes a perfunctory argument that these errors violated his
constitutional right to due process. Assuming, without deciding, defendant’s right to due
process was violated, we would conclude reversal was not required under the standard
espoused in Chapman v. California (1967) 386 U.S. 18.


                                             17.
       The case most often cited to define the parameters of probation or parole
conditions is People v. Lent (1975) 15 Cal.3d 481 (superseded by statute as explained in
People v. Wheeler (1992) 4 Cal.4th 284, 290-295). “The Legislature has placed in trial
judges a broad discretion in the sentencing process, including the determination as to
whether probation is appropriate and, if so, the conditions thereof. (Pen. Code, § 1203 et
seq.) 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.] Conversely, a condition of probation which requires or
forbids conduct which is not itself criminal is valid if that conduct is reasonably related to
the crime of which the defendant was convicted or to future criminality.” (Id. at p. 486,
fn. omitted.)
       The attorney fee issue is governed by Penal Code section 987.8. This section
generally provides the court with the ability to seek reimbursement for attorney fees
appointed to defendants who assert they do not have the financial ability to hire an
attorney. However, subdivision (f) requires the trial court to give notice to the defendant
that the county may seek reimbursement for attorney fees before an attorney is appointed
to represent him. Defendant contends, and the Attorney General concedes, the trial court
did not give such notice to defendant, and, therefore, he cannot be compelled to
reimburse the county for attorney fees. (People v. Turner (1993) 15 Cal.App.4th 1690,
1695, disapproved on other grounds in People v. Flores (2003) 30 Cal.4th 1059, 1062-
1068.) We accept the concession as properly made.
       The Attorney General also concedes there is no evidence in the record that
defendant needs mental health counseling, pointing out there was no testimony from a
mental health expert to suggest this crime was related to a mental health condition. We
also accept this concession as properly made.



                                             18.
       The Attorney General argues, however, there is evidence in the record to support
the substance abuse counseling requirement. Defendant, who committed this crime
shortly before his 19th birthday, admitted in the probation report he began drinking
alcohol at the age of 16, and began smoking marijuana at the age of 18. He admitted to
consuming both alcohol and marijuana until shortly before the crime was committed.
While it is true there is no evidence intoxication played any role in the crime, the trial
court could have reasonably concluded substance abuse testing and counseling would
deter future criminality. Accordingly, we conclude imposition of this provision was not
an abuse of discretion.
       The final condition that is in dispute is the requirement of electronic monitoring.
Defendant argues that because he was required to serve six months in jail, there was no
basis for the trial court to also order electronic monitoring. According to defendant, the
only method through which the trial court could order electronic monitoring was through
a modification of probation, and since there were no changed conditions the trial court
was without jurisdiction to do so. (People v. Cookson (1991) 54 Cal.3d 1091, 1095.)
Cookson is inapposite because the trial court was not attempting to modify the terms and
conditions of probation, it was imposing them in the first instance. The question is
whether the trial court abused its discretion by imposing both a jail term of six months as
well as electronic monitoring which, presumably, would commence upon defendant’s
release from jail. We find no abuse of discretion. The trial court could reasonably
conclude the short jail term imposed was not sufficient in and of itself to prevent future
criminal conduct by defendant, and therefore a period on the electronic monitor would
help achieve that goal.
V.     Modification of the Terms of Probation.
       The sentencing hearing for defendant was on December 30, 2013. One of the
terms of probation imposed on that date prohibited defendant from owning or possessing



                                             19.
any animal that weighed less than 100 pounds. Shortly after the hearing, the probation
department objected to this condition, asserting defendant should be prohibited from
owning or possessing any animal, regardless of its weight. On January 15, 2014, the trial
court held a hearing to address the objection of the probation department. At that hearing
the trial court modified the terms of probation to prohibit defendant from owning or
possessing any animal weighing less than 250 pounds.
       Defendant argues, and the Attorney General concedes, the trial court was without
jurisdiction to modify the terms of probation because there was no change in
circumstance which would justify the change. “An order modifying the terms of
probation based upon the same facts as the original order granting probation is in excess
of the jurisdiction of the court, for the reason that there is no factual basis to support it.
[Citation.]” (In re Clark (1959) 51 Cal.2d 838, 840.)
                                       DISPOSITION
       The sentence is modified to vacate the terms of probation that required defendant
to participate in mental health counseling, and which required reimbursement to the
county for attorney fees. The January 15, 2014, order modifying defendant’s probation is
also vacated. The original term of probation prohibiting defendant from owning or
possessing any animal that weighed less than 100 pounds remains in effect. The
judgment is affirmed in all other respects.




                                               20.
                               _____________________
                                     LEVY, Acting P.J.
WE CONCUR:


 _____________________
KANE, J.


 _____________________
PEÑA, J.




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