P. v. Romero







Filed 9/27/11 P. v. Romero CA6





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. PAUL ROMERO, Defendant and Appellant.

H035690 (Santa Clara County Super. Ct. No. FF928484)

I. INTRODUCTION
After a jury trial, defendant Paul Romero was found guilty of three felony counts of lewd or lascivious act on a child under 14 (Pen. Code, § 288, subd. (a).)[1] The victim in all three counts was M., defendant’s 13-year-old stepdaughter. At the sentencing hearing, the trial court suspended imposition of sentence and placed defendant on probation for a period of three years with various terms and conditions, including a one-year county jail sentence and a search condition.
On appeal, defendant contends that the convictions should be reversed for several reasons: (1) defense counsel was ineffective in failing to move for suppression of defendant’s incriminating statements during a pretext telephone call from his wife, since the statements were obtained by police coercion; (2) defense counsel was ineffective in failing to move for suppression of defendant’s incriminating statements during a police interview, since those statements were also obtained by police coercion; (3) the probation search condition is unreasonable and overbroad; and (4) defense counsel was ineffective in failing to object to the probation search condition. For the reasons stated below, we find no merit in defendant’s contentions and therefore we will affirm the judgment.
Defendant has also filed a petition for writ of habeas corpus, in which he makes additional claims of ineffective assistance of counsel arising from the jury trial. We have disposed of the petition by separate order filed this date. (Cal. Rules of Court, rule 8.387(b)(2)(B).)
II. FACTUAL BACKGROUND
Our summary of the factual background is taken from the testimony given during the 2009 jury trial.
C. is the mother of M. Defendant and C. began living together in 2000 and were married in 2005. Defendant has known M. since she was five years old and helped C. to raise her. M. liked defendant and thought he was a good stepfather. By October 2008, the household consisted of C., M., one of M.’s sisters, and defendant. At that time, C. noticed a change in M.’s attitude and behavior. M. was not doing well in school, did not want to do her chores, and had begun to lie.
Three incidents occurred in the fall of 2008 that involved defendant touching M. when she was 13 years old.
A. The First Incident
The first incident took place on a morning two weeks before Halloween, when M. was 13 years old. M. and her friend were drinking Rockstar energy drinks after a sleepover at M.’s house. M. panicked because she was experiencing a rapid heartbeat and called her mother, C., who was at work. M. asked C. if she could lie down with defendant. When C. agreed, M. got into bed with him. Defendant told M. that everything would be fine and rubbed the middle of her back. M. fell asleep.
According to M., she woke up in bed with her back to defendant and felt him kneading her buttocks with one hand over her sweatpants. After two or three minutes, defendant moved his hand between her buttock cheeks, through her legs, and touched the “beginning” of her vagina. At that point, M. got up and left the room. M. did not jump out of bed the moment she felt defendant’s hand between her buttock cheeks because she was scared.
Defendant provided a different version of the first incident. According to defendant, the first incident occurred on a morning in August 2008. After C. went to work at 6:30 a.m., she called defendant to ask if M. could lie down with him because M. had drunk an energy drink. While defendant was “half asleep,” M. came in the room and lay down on the bed with him. She looked “shaky or nervous” and said that she did not feel good. Defendant put his arms around M. and rubbed “the middle and to the bottom of her back.” Both of them fell asleep. When defendant woke up, M. was standing at the end of the bed. She said she was fine and walked out of the room. Defendant denied that he had touched M’s “butt” or that he had touched her in a way that he would “consider a sexual touch.”
B. The Second Incident
The second time defendant touched M. was around midnight on the day before Halloween. M. was in the kitchen eating a bag of chips while defendant was sitting on the living room couch, watching television. M.’s sister was in the garage (where the family kept their computer) and C. was asleep in her room. Defendant asked M. to get him some chips. When M. brought the chips to defendant, he put his arm around her and pulled her towards him. As M. faced defendant while he was sitting on the couch, he began to knead her buttocks with the hand that was holding her. After one or two minutes, he moved his hand to her stomach and put his fingers down the front of her pants. He reached the “tip” of her vagina. M. then backed away, asked where her mother was, and went to her room.
The next day, while M. was in her bedroom getting ready to go trick or treating on Halloween, defendant came to the doorway. He told M. that “he was sorry for the night before, that he didn’t know what he was thinking and he’s never going to do it again.”
According to defendant, he accidentally touched M.’s buttocks cheek on the day before Halloween. His routine at the time was to get home from work at about 11:00 p.m. When he got home that night, C. was asleep and her other daughter was using the computer. Defendant went to the couch to watch television. M. was eating corn chips at the kitchen table. After 10 or 15 minutes, defendant asked M. for some chips. She poured chips into his hand, then stood there watching television. When defendant asked M. for more chips, she did not respond. Defendant “rubbed the side of her leg to get her attention and at that moment, she turned.” As defendant was rubbing M.’s upper thigh, she turned to walk away. As she did so, defendant’s hand “rubbed the side of her [buttocks] cheek.” He did not rub her for “some type of sexual gratification.” M. asked where her mother was, but did not give him “a dirty look” or say anything else.
Defendant also recalled that he apologized to M. the next day. He testified, “I felt that I should at least tell her that . . . I wasn’t trying to touch her [buttocks] cheek. So I just apologized and told her that nobody should be touching her cheek.”
C. The Third Incident
The third incident occurred a week or two after Halloween, according to M. While defendant was sitting on the living room couch, he asked M. to bring him the remote. When M. handed it to him, he put his arm around her and pulled her towards him. M. recalled that after defendant pulled her close, “he rubbed [her] butt for a little bit and then he went straight to the front and tried going in the front.” With his knuckles against her stomach, defendant put his hand down her pants close to M.’s vagina. Since she knew what was going to happen, as a result of the other incidents, M. backed up faster this time and went to her sister’s room, shut the door, and locked it. M. did not tell anyone what had happened because she did not want her mother and defendant to fight or the family to break up.
Defendant believes that the third incident occurred at the grandparents’ house when numerous relatives were present. At the time of his interaction with M., defendant was in the living room, sitting in a chair and watching television. He asked M. to bring him the television remote, and recalled that “she came over and walked to my right-hand side. And I reached up to give her a hug to basically thank her for bringing me the remote, and she pulled away from me.” According to defendant, he hugged M. around the waist, but without any sexual intent.
D. Police Investigation
In January 2009, M. told C. that defendant had touched her inappropriately on three occasions. C. confronted defendant and he told her that it was a misunderstanding. Defendant also noted that M. had revealed the touching incidents on a day when defendant had come home early and discovered M. in the house when she was supposed to be at school. C. asked defendant to move out of the house because M. did not want him there. C. subsequently initiated marital dissolution proceedings.
M.’s father found out about the incidents and made a report to the police department. The police then contacted C. and asked her to bring M. to the police station. Thereafter, on January 20, 2009, the police asked C. to participate in a pretext telephone call with defendant, after M. had refused to make the call. The purpose of the pretext call was to confront defendant with M.’s allegations. During the pretext call, C. did not tell defendant that police were recording the call. The police provided a script but C. mostly talked on her own with minimal police assistance.
An audiotape of the pretext call was played for the jury. During the call, defendant admitted that he had rubbed M.’s “butt” three different times: “I did rub her butt and I am sorry that I did and at this point I’m hoping that you will forgive me and I will go to counseling to do whatever it takes to get you back and [M.].” Defendant denied that he was “trying to get in her pants” and stated “it is not going to happen again.” In his trial testimony, defendant explained that he had admitted to C. during the pretext call that he had “touched [M.’s] butt” because “[s]he had mentioned that if I told her something, that it would help us to get back together again.” Defendant did not know that his telephone conversation with M. was being recorded.
Two days after the pretext call, on January 22, 2009, a detective asked defendant to come down to the police department. He cooperated by arriving at the police station in 10 to 15 minutes, believing that “some type of family meeting” was going to occur. Defendant was then interviewed by Detective Jason Smith. Defendant did not know that the interview of more than two hours was being videotaped. During the interview, defendant admitted that he had “made some mistakes,” that he “took the hug farther than I should have,” and “the excuse I used was to give me a hug.” Defendant also admitted that when he “rubbed her butt,” the most that he was “turned on” was “one and a half” on a scale of 1 to 10. He also acknowledged that he had rubbed M.’s “butt” three times.
Defendant explained during the police interview that he and C. had been “on the outs” and that was why he took the hug farther than he should have. Defendant stated, in both the police interview and his trial testimony, that in the fall of 2008 he kept a calendar in which he recorded his sexual activity with C. because the frequency of their sexual activity had decreased. At that time, he was also taking “sexual enhancement supplements” so he could “keep up” with C.
At the detective’s invitation, defendant wrote letters of apology to C. and M. that were introduced into evidence. A video recording of the police interview was played for the jury.
III. PROCEDURAL BACKGROUND
The information filed on July 17, 2009, charged defendant with three felony counts of lewd and lascivious act on a child under the age of 14 (§ 288, subd. (a); counts 1, 2, & 3). Count 1 was alleged to have occurred between October 1, 2008 and October 15, 2008, and counts 2 and 3 were alleged to have occurred between October 16, 2008, and November 30, 2008. During the trial, on December 4, 2009, a first amended information was filed that alleged that the count 1 offense had occurred between August 1, 2008, and October 15, 2008. M. was alleged to be the victim in all three counts.
The jury trial began on November 30, 2009, with jury selection. The People completed their case in chief on December 3, 2009, and the defense rested on December 4, 2009. In addition to defendant, the defense witnesses included two 15-year-old nieces of defendant and two of defendant’s friends, who testified to his truthfulness and good character. One of the nieces stated that when defendant hugged her, he put his hands “high” on her back, never “down low.”
The jurors began deliberating at 4:04 p.m. on Friday, December 4, 2009, and resumed deliberations on Monday, December 7, 2009 at 8:42 a.m. They deliberated all day on December 7 and 8, 2009. On December 9, 2009, one juror was excused and replaced with an alternate juror. The trial court instructed the jury to begin new deliberations. The new deliberations took place during the afternoon of December 9, 2009, and on December 10, 2009, until 3:40 p.m., when the jury returned a verdict finding defendant guilty on all three counts.
At the sentencing hearing held on April 30, 2010, the trial court suspended imposition of sentence and placed defendant on formal probation for a period of three years, with several terms and conditions. The probation conditions included a one year county jail sentence on each count, to run concurrently, and a probation search condition: “He’s to submit his person, place of residence, vehicle and property under his control to search at any time without a warrant by any peace officer.” Defendant was also ordered “not to work, be self-employed or do volunteer work in an organization that involves the supervision of children under the age of 18 [and] not reside in a home where the people under the age of 18 reside.”
During a sentence modification hearing held on August 19, 2010, the trial court modified the conditions of probation to allow defendant to “reside with natural children or grandchildren, provided that another adult is always physically present at the home at any time the defendant would otherwise be alone with a minor.”
Defendant filed a timely notice of appeal on June 10, 2010.
IV. DISCUSSION
Defendant raises several issues in his appellate challenge to the convictions: (1) defense counsel was ineffective in failing to move for suppression of defendant’s incriminating statements during a pretext telephone call from his wife, since the statements were obtained by police coercion; (2) defense counsel was ineffective in failing to move for suppression of defendant’s incriminating statements during a police interview, since those statements were also obtained by police coercion; (3) the probation search condition is unreasonable and overbroad; and (4) defense counsel was ineffective in failing to object to the probation search condition. We will begin with an overview of the standard that governs our review of a claim of ineffective assistance of counsel.
A. Ineffective Assistance of Counsel: The Standard
We review a claim of ineffective assistance of counsel under a well established standard. “In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.’ [Citations.] Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.]” (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.) It is rare that an appellate record will establish ineffective assistance of counsel. (People v. Thompson (2010) 49 Cal.4th 79, 122.)
“It is equally well established that trial counsel is not required to make frivolous or futile motions, or indulge in idle acts. [Citations.]” (People v. Reynolds (2010) 181 Cal.App.4th 1402, 1409.) Therefore, we begin our evaluation of defendant’s first ineffective assistance of counsel claim by determining whether a motion to suppress defendant’s incriminating statements during the pretext call, on the grounds that his admissions were involuntary as the result of police coercion, would have been futile.
B. Ineffective Assistance of Counsel: Pretext Telephone Call
Defendant contends that C. was an agent of the police when she made the pretext telephone call, and because C. promised during the call to reunite with defendant in exchange for his admission of wrongdoing, the police thereby improperly coerced defendant’s admission that he had rubbed M.’s “butt” on three occasions. According to defendant, the police coercion made defendant’s statements during the pretext call inadmissible, and defense counsel’s failure to move to suppress defendant’s statements was prejudicial in this close case and constitutes ineffective assistance of counsel.
The People correctly contend, and defendant does not dispute, that he failed to preserve the issue for direct appeal because he did not object to the admission of his pretext call statements at the time of trial. (People v. Williams (2010) 49 Cal.4th 405, 435 (Williams).) As to defendant’s claim of ineffective assistance of counsel, the People argue that the claim must be rejected because counsel has not volunteered an explanation for not objecting and defendant has not established that no satisfactory explanation for failure to object could exist.
Alternatively, the People argue that a voluntariness objection to the pretext call statements would have been futile, since the record shows that defendant was not aware that the police were involved, his statements to C. were voluntary, and defendant made the same admissions at other times. According to the People, the transcript of the pretext call shows only that C. “demanded honesty, held out forgiveness if he was honest, and in return he tried to be honest with her to reconcile the marriage.” The People also point to defendant’s refusal to admit, during the pretext call, that he had done anything more than touch M.’s “butt” three times, as showing that his statements were not coerced.
The standard for determining whether a defendant’s admissions to police were voluntary was recently stated by the California Supreme Court in Williams: “The basic law is settled.^[[2]^] A criminal conviction may not be founded upon an involuntary confession. [Citation.] ‘The prosecution has the burden of establishing by a preponderance of the evidence that a defendant’s confession was voluntarily made. [Citations.] In determining whether a confession was voluntary, “ ‘[t] he question is whether defendant’s choice to confess was not “essentially free” because his [or her] will was overborne.’ ” [Citation.] Whether the confession was voluntary depends upon the totality of the circumstances. [Citations.]’ ” (Williams, supra, 49 Cal.4th at p. 436.) Thus, “[i]n evaluating the voluntariness of a statement, no single factor is dispositive. [Citation.]” (Ibid.)
“Relevant considerations are ‘ “the crucial elements of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity” as well as “the the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.” ’ [Citation.]” (Williams, supra, 49 Cal.4th at p. 436.) Additionally, “ ‘[i]n assessing allegedly coercive police tactics, “[t]he courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.” [Citation.]’ ” (Ibid.) Thus, “ ‘ “advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary.” [Citation.] In terms of assessing inducements assertedly offered to a suspect, “ ‘[when] the benefit pointed out by the police . . . is merely that which flows naturally from a truthful and honest course of conduct,’ the subsequent statement will not be considered involuntarily made. [Citation.]” [Citation].’ ” (People v. McWhorter (2009) 47 Cal.4th 318, 357-358.) Most importantly, “[a] confession is not involuntary unless the coercive police conduct and the defendant’s statement are casually related. [Citations.]” (Williams, supra, 49 Cal.4th at p. 437.)
The trial court’s legal conclusion as to whether a defendant’s confession was voluntary is “subject to independent review on appeal. [Citations.]” (People v. Dykes (2009) 46 Cal.4th 731, 752.) “The trial court’s resolution of disputed facts and inferences, its evaluation of credibility, and its findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence. [Citations.]” (Ibid.) Where, as here, the defendant did not object to the admission of his confession, and the trial court therefore made no findings of fact or legal conclusions, we examine the uncontradicted facts to determine whether the admissions were voluntary. (People v. Haydel (1974) 12 Cal.3d 190, 198.)
Having carefully reviewed the transcript of the January 20, 2009 pretext telephone call between defendant and his wife, C., we determine that, even assuming that C. was acting as an agent of the police, defendant’s admissions during the call were voluntary. Contrary to defendant’s assertions, the record reflects that C. did not make any promise to defendant that they would reunite if he confessed.
C. recalled that the pretext telephone call lasted 15 to 20 minutes. Defendant did not know that the police were involved or that the call was being recorded. During the telephone call, C. made a number of statements indicating that they could “move forward” if defendant told her what had happened. The following excerpts from the transcript of the pretext call exemplify their conversation in that regard:
“[C.]: You want to move forward, right, you want to move forward and so do we. So you need to tell me what happened.
“[DEFENDANT]: I didn’t do that I swear to you that I didn’t do that. [¶] Why would I lie to you‌ [¶] I am not [sic] I am already out of the house. I am not going to try to tell you something different, you know, just to get back inside the house. You know, I am not going to do that. [¶] . . . [¶]
“[C.]: You know, and, if we are ever going to get back together we are going to have to move past this and I need to know everything.
“[DEFENDANT]: Ok. [¶] . . . [¶]
“[C.]: I just want you to tell me what happened and we can go to counseling and go from there cause we can’t go forward right now.
“[DEFENDANT]: Okay well let’s get together and talk it over over [sic].
“[C.]: You just go[t] to tell me the truth, please. You keep saying you want us to get back together and be a family. We can’t be a family like this.
“[DEFENDANT]: Okay, let[’]s get together and talk and we’ll go from there. [¶] . . . [¶]
“[C.]: I just need you to tell me the truth, please.
“[DEFENDANT]: All right, you know. All right. I don’t really know exactly but when she was in the bed or whatever when I was rubbing her back maybe I did rub her butt at the same time. [¶] . . . [¶]
“[C.]: I’m your wife. I’m your wife. She is a kid you can’t do that to a kid. You need to be honest with me and I can forgive you.
“[DEFENDANT]: I told you everything that . . . happened. I did rub her butt and I am sorry that I did and you know what at this point I’m hoping that you will forgive me and I will go to counseling to do whatever it takes to get you back and [M.]. If at any point you want to make the time I don’t care if it is in a crowded area or whatever at least I can apologize to her for touching her butt and try to move forward with this thing then that is what I will do. Whatever you ask.
“[C.] Did it happen anymore than the three different times[‌]
“[DEFENDANT]: No.
“[C.] She is talking about‌ So, you rubbed her butt three different times is what you are telling me‌
“[DEFENDANT]: I . . . I . . Yeah. Yup. [¶] . . . [¶]
“[C.]: How do you think she feels‌ It’s more than an accident.
“[DEFENDANT]: I just think if I can get the opportunity to apologize to her [and] tell her that you know that nothing like this will ever happen again and I’m truly sorry and I do want to go forward with the both of you and maybe that may bring some relief. When [you] shut me off completely I can’t even do that. [¶] . . . [¶]
“[C.]: You need to make sure you are telling me everything.
“[DEFENDANT]: I’ve told you everything . . . .
“[C.]: You didn’t try to get in her pants‌
“[DEFENDANT]: No I did not. I grabbed at her pants . . . . [¶] . . . [¶]
“[C.]: Tell me the truth and we can go get counseling. You have to tell me if you were trying to get in her pants.
“[DEFENDANT]: No, I was not trying to get in her pants and that’s the gods honest truth. I was not trying to get in her pants. [¶] . . . [¶]
“[C.]: [I] just want to know if we go to counseling what are you going to tell the counselor. Are you going to tell her the truth‌
“[DEFENDANT]: I just told you the truth now if we go to counseling I am going to tell them the same thing. If that’s the truth. You know [C.]‌
“[C.]: What‌
“[DEFEENDANT]: I don’t have any reason to lie to you. The thing is that you already have me out of the house you know its not like I can say tonight when are sitting around dinner we will finish talking about this or whatever. You already have me out of the house.
“[C.]: I have.
“[DEFENDANT]: Why would I lie to you to go back to the house‌ . . . [¶] . . . [¶]
“[C.]: Yeah, if the Police want to talk to us what do I say‌
“[DEFENDANT]: At that point, I mean I’ve already told you what I have done. If you want to press charges I have no control over that.
“[C.]: What do I tell them‌ What do you want me to tell them.
“[DEFENDANT]: You and I are going to go to counseling and try to get things back in order again.
“[C.]: Do I tell them the truth about what you said‌
“[DEFENDANT]: That I rubbed her up‌
“[C.]: Yeah.
“[DEFENDANT]: Well I guess you know if you have to at that point they are going to do the arresting not me I meant not you.
“[C.]: Why, what do you think is going to happen to you‌
“[DEFENDANT]: Most likely I’ll go to jail . . . .”
It is undisputed that defendant was not in custody at the time of the pretext telephone call and was unaware of police involvement in the call. Moreover, as the above excerpts from the transcript of the pretext telephone call demonstrate, C. did not make any promises indicating to defendant that they would be reunited if he admitted to molesting M. Instead, C. repeatedly asked defendant to tell the truth, and he eventually admitted that he had “rubbed” M.’s “butt” on three occasions. After making that admission, Defendant refused to further admit, despite C.’s insistent questioning, that he had been “trying to get in [M.’s] pants.” Defendant also emphasized to C. that he would not lie in order to return to their home. We find that the record shows that defendant’s “ ‘resistance, far from reflecting a will overborne by official coercion, suggests instead a still operative ability to calculate his self-interest in choosing whether to disclose or withhold information.’ ” (Williams, supra, 49 Cal.4th at p. 444.)
We therefore determine that defendant’s statements to C. during the pretext telephone call were voluntary and a motion to suppress the statements would have been futile. Accordingly, we find no merit in defendant’s claim of ineffective assistance of counsel based upon defense counsel’s failure to bring a motion to suppress defendant’s incriminating statements during the pretext telephone call.
C. Ineffective Assistance of Counsel: Police Interview
Defendant contends that his incriminating statements during the police interview with Detective Smith, including his admissions that he had rubbed M.’s “butt” on three occasions and experienced a slight sexual arousal, were the involuntary product of police coercion and therefore inadmissible. The circumstances indicating police coercion, according to defendant, include his lack of food and sleep at the time of the interview and Detective Smith’s promise to reunite defendant with his family in exchange for admitting M.’s allegations.
Defendant explains that Detective Smith coerced defendant by making “repeated offers to help mend the broken bonds between [defendant] and his family if, and only if, [defendant] first admitted that every accusation [M.] had leveled against him was true. If he refused to do that, Smith assured him, then Smith would report to his family that he had called [M.] a liar, and they would never forgive him.” Defendant argues that defense counsel’s failure to move for suppression of defendant’s incriminating statements during the police interview was prejudicial in this close case and constitutes ineffective assistance of counsel.
The People disagree, maintaining that Detective Smith made no promises of leniency or threats of punishment and did not prey on defendant’s psychological vulnerabilities. They also maintain that defendant attended the police interview voluntarily, was not in custody, and admitted all three incidents after Detective Smith asked him for “100% honesty.” In the People’s view, Detective Smith’s assurances “of peace of mind and clearing the air after a truthful statement” constitutes noncoercive exhortations that it would be better to tell the truth, and did not show that defendant’s will was overborne. The People also contend that even if defendant’s admissions were coerced, their admission was not prejudicial in light of M.’s “vivid recount of the three gropings.”
Having carefully reviewed the transcript of defendant’s interview with Detective Smith, we are not convinced by defendant’s argument that his admissions during the interview were involuntary due to psychological coercion. “ ‘ “ ‘The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were “such as to overbear petitioner’s will to resist and bring about confessions not freely self-determined.” [Citations.]’ [Citation.]” ’ ” (People v. McWhorter, supra, 47 Cal.4th at p. 347.) However, “the use of deceptive comments does not necessarily render a statement involuntary. Deception does not undermine the voluntariness of a defendant’s statements to the authorities unless the deception is ‘ “ ‘of a type reasonably likely to procure an untrue statement.’ ” ’ [Citations.] ‘ “The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.” ’ [Citation.]” (Williams, supra, 49 Cal.4th at p. 443.)
Our review of the transcript of the police interview shows that the record does not support defendant’s claim that he was psychologically coerced to make incriminating statements by police interrogation tactics of promising to reunite defendant with his family in exchange for admitting the victim’s allegations, threatening to break up the family, or exploiting defendant’s lack of food and sleep. We find that such interrogation tactics were not employed during defendant’s police interview.
Well into the interview, defendant told Detective Smith what he had never told anyone before: that defendant had been molested when he was a child. Defendant cried and Detective Smith responded, “It’s horrible, but you know firsthand how it feels.” Defendant then stated, “Also, if nobody will let me talk to her, if she knew how bad I feel. I haven’t eaten in about four days. I can’t sleep at night. [¶] . . . [¶] I haven’t been sleeping. In 3 weeks, I have been out of the house, I’ve already lost 15 pounds because I can’t I can’t eat.” However, defendant did not further mention his lack of food and sleep while articulately completing the remainder of the police interview, and the record does not show that Detective Smith attempted to exploit defendant’s condition. Therefore, we find no merit in defendant’s contention that his admissions during the police interview were psychologically coerced due to his lack of food and sleep.
We also find that the record does not support defendant’s contentions that Detective Smith promised to reunite defendant with his family if defendant admitted M.’s allegations during the police interview and threatened to break up the family if he did not. While it appears that Detective Smith presented himself as understanding and sympathetic during the interview, assuring defendant that he was not a “monster” or a “bad guy” but was a good person who had simply made a “mistake,” Detective Smith never offered to help reunite defendant with his family. The following excerpts from the police interview transcript exemplify Detective Smith’s interrogation tactics with regard to defendant’s family and the implication that he would help defendant:
“DETECTIVE: You know, I’m just letting you know. I’m not here to destroy things; I’m here to fix things.
“[DEFENDANT]: Right --
“DETECTIVE: Please understand -- here’s what I’m--
“[DEFENDANT]: If you could fix this . . . This is not me. . . . If you could fix this, I’d be indebted to you for the rest of your life. I’ve tried to fix it; I’m not a bad person. . . . I’m not an animal.
“DETECTIVE: I never said you were. This is something that when you say, ‘I can fix it,’ I think we can help to fix it and start making things better. But part of that is getting [M.] to heal. Okay‌ [¶] . . . [¶]
“DETECTIVE: But you made some mistakes.
“[DEFENDANT]: Yes.
“DETECTIVE: And for her to start healing, and for you to start healing, ‘cuz we need to put everything on the table . . I know you didn’t try to have sex with her. I know you didn’t try to rape her or I know that you didn’t have sex with her, I should say.
“[DEFENDANT]: No.
“DETECTIVE: I know that you didn’t, from what I understand, touching is the issue. Right‌
“[DEFENDANT]: That’s, yes.
“DETECTIVE: And I need to understand why this happened. And I don’t want to hear it was an accident. Because, three times in four months is not an accident. Maybe it was a lapse in judgment . . . . But I spent time with [M.], crying, crying, crying. Her Mom crying and crying and crying. They just want to understand. And if I can help them understand, if you can help me understand, we could, you know, do this together and talk with them. . . . So let’s work on fixing things. So why did you touch her‌ Explain that . . . . [¶] . . . [¶]
“DETECTIVE: But, give me a reason, you know‌ And then, after you give me the reason, promise me it’s not going to happen again, you know.
“[DEFENDANT]: No.
“DETECTIVE: Or if you need help, I’ll help you get the help.
“[DEFENDANT]: Her Mom and I have been, kind of, a little bit on the outs. I guess asking for a hug or whatever is more of the whole thing that anything, you know, so, I guess I took the hug further than I should have. [¶] . . . [¶]
“DETECTIVE: Remember what I told you when we first started talking‌ One minute, of all the minutes you’ve been alive, you’ve known her your whole life, you’ve made a mistake of a total of maybe one minute. Okay‌ Does that make Paul Romero a monster‌ No, it doesn’t.
“[DEFENDANT]: I feel like one.
“DETECTIVE: You made a mistake . . . . And nothing can change that mistake. We can only try to make things better. Alright‌ . . . But, you know, you’re a good person who made some bad choices, a couple of them. Okay‌ And that’s all we’re dealing with. Right‌ And if you want to start the healing process with them . . . Like I said, you got to be completely honest, because I’m the one who has to report back to them, you know‌ They know what happened.
“[DEFENDANT]: Well, you told me, though, too, that none of it can be an accident. And I have to disagree on one--
“DETECTIVE: Okay, that’s fair.
“[DEFENDANT]: And that’s the one where she came into my bedroom and she was shaking like a leaf and I’m rubbing her back. I tried to explain that, and I’m going to explain it to you again. I was rubbing her back, and I had my arms around her shoulder. But I was rubbing her back and she’s not a very tall kid so maybe I was rubbing her butt at the same time, but not around it, just up and down her back. So, if it’s a fact that I touched her butt, yes I must have. [¶] . . . [¶]
“DETECTIVE: And you’re saying the other two times aren’t an accident, is that what you’re saying‌ Now be honest about this--
“[DEFENDANT]: Yeah, yeah-- [¶] . . . [¶]
“DETECTIVE: Well, here’s what I’m going to do. I don’t always allow this. But I go case by case, and I kind of go from my heart, depending on how I feel about stuff. When we’re done talking, I’ll give you the opportunity to write her a letter.
“[DEFENDANT]: I’m not very good at writing letters. My spelling is not that good.
“DETECTIVE: It doesn’t matter. . . . I’ll tell her and that will mean something but to see it in your writing will probably mean a lot more. Would you like to do something like that‌
“[DEFENDANT]: (Shakes head yes, crying).
“DETECTIVE: [I] would have to talk to her Mom and make sure her mom is okay letting her read it. I don’t think there would be too much of a problem, but I can’t speak for her. And I also think you should probably write a note to your wife. You know‌ Let her know that you’re sorry and however you feel. You speak from the heart. . . .
“[DEFENDANT]: I tried to tell her how sorry I am and [¶] . . . [¶] . . . most of the time she tells me that even if we were to get back together, that--
“DETECTIVE: Paul, time heals. I’m sure you’ve heard that. But, it’s absolutely true. Will things be fixed today‌ Of course not. It’s going to take time and commitment.
“[DEFENDANT]: I even told her the same thing. I says, ‘Look, I don’t care how long it takes. Even if you just be my friend, then we’ll go from there.’ ”
As the above excerpts from the transcript of the police interview indicate, Detective Smith did not make any promise to defendant that he would be reunited with his family in exchange for admitting M.’s allegations and did not threaten to break up the family. At most, Detective Smith indicated that he was interested in helping defendant and starting a “healing process,” which could be considered deceptive interrogation tactics aimed at gaining defendant’s confidence during the interview. However, as we have noted, “[d]eception does not undermine the voluntariness of a defendant’s statements to the authorities unless the deception is ‘ “ ‘of a type reasonably likely to procure an untrue statement.’ ” ’ [Citations.] ‘ “The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.” ’ [Citation.]” (Williams, supra, 49 Cal.4th at p. 443.) Our careful review of the record shows that Detective Smith did not use any psychological ploys that would have the effect of coercing defendant into making an involuntary and untrue statement.
We therefore determine that defendant’s incriminating statements during the police interview were voluntary, and a motion to suppress those statements would have been futile. For that reason, we find no merit in defendant’s claim of ineffective assistance of counsel based upon defense counsel’s failure to bring a motion to suppress defendant’s incriminating statements during the police interview.
D. Probation Search Condition
1. Appealability
Defendant contends that the probation search condition imposed by the trial court is unreasonable and overbroad because it is unrelated to defendant’s sex offenses or any noncriminal conduct, and because there is no “nexus with prevention” of defendant’s “future criminality.” Defendant therefore urges, in his reply, that the probation search condition be modified by striking the provisions requiring him to submit to searches of his person and vehicle, and limiting searches of his home to evidence of occupancy by a minor other than his natural children or grandchildren. Although defendant acknowledges that he did not object to the probation search condition during the proceedings below, he argues that his objection is nevertheless cognizable on appeal because he raises a pure question of law based on undisputed facts, which this court may reach in our discretion.
The People argue that defendant has forfeited his objection to the probation search condition because he did not raise the issue in the trial court. We agree.
In In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.), the California Supreme Court addressed the issue of whether a challenge to a probation condition could be raised for the first time on appeal “when the challenge is based on the ground the condition is vague or overbroad and thus facially unconstitutional.” (Sheena K., supra, 40 Cal.4th at p. 878.) First, the court noted the general rule that “[o]rdinarily, 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. [Citations.]” (Id. at p. 880.) The “forfeiture rule applies in the context of sentencing as in other areas of criminal law.” (Id. at p. 881.) Thus, the court had previously “extended the forfeiture rule to a claim that probation conditions are unreasonable, when the defendant fails to object on that ground in the trial court. [Citation.]” (Id. at p. 882.)
However, the Sheena K. court observed that “a challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law.” (Sheena K., supra, 40 Cal.4th at p. 887.) The court therefore concluded that the forfeiture rule “should not extend to a facial challenge to the terms of a probation condition on constitutional grounds of vagueness and overbreadth[.]” (Id. at p. 887, fn. 7.)
Importantly, our Supreme Court limited its ruling as follows: “We caution, nonetheless, that our conclusion does not apply in every case in which a probation condition is challenged on a constitutional ground. . . . [W]e do not conclude that ‘all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present “pure questions of law that can be resolved without references to the particular sentencing record developed in the trial court.” [Citation.] In those circumstances, “[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court.” [Citation.]’ ” (Sheena K., supra, 40 Cal.4th at p. 889.)
In the present case, the probation search condition at issue is neither vague nor overbroad on its face. “A probation condition ‘must be sufficiently precise for the probationer to know what is required of him [or her], and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.)
Here, the trial court imposed a warrantless probation search condition: “He’s to submit his person, place of residence, vehicle and property under his control to search at any time without a warrant by any peace officer.” The language of the condition is sufficiently precise for defendant to know what is required of him, and therefore a challenge to the facial vagueness of the condition must fail.
Defendant argues, however, that the condition is overbroad because it does not relate to defendant’s criminality, which did not involve weapons or a history of drug or alcohol abuse. Defendant also argues that “the record discloses no possible rationale under which requiring [defendant] to submit to searches of his person or car, or searches of his home beyond what is required to ascertain that no minors are living there, could prevent him from future violations of section 288, subdivision (a), the only statute under which he was either charged or convicted.” By making these fact-based arguments, defendant implicitly concedes that it cannot be determined, without reference to the sentencing record developed in the trial court, whether the probation search condition is closely tailored to the purpose of the condition. (Sheena K., supra, 40 Cal.4th at p. 890.)
For these reasons, we determine that defendant’s challenge to the probation search condition, on the grounds of reasonableness and constitutional overbreadth, does not present a pure question of law that can be raised on appeal absent an objection below. (Sheena K., supra, 40 Cal.4th at pp. 882, 887-888.) Defendant has therefore forfeited the issue.
2. Ineffective Assistance of Counsel
Alternatively, defendant contends that defense counsel was ineffective in failing to object to the overbroad probation search condition during the proceedings below, and also in failing to seek modification to limit the scope of the search condition. The People’s response is that defendant “may have been content with the search condition, since it protects him from warrantless searches conducted for arbitrary reasons or conducted in an improper manner.” The People also assert that defense counsel may have viewed an objection to the probation search condition as futile under California Supreme Court authority.
We reiterate that the California Supreme Court has instructed that “[t]o the extent that the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citation.] Moreover, prejudice must be affirmatively proved; the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Maury (2003), 30 Cal.4th 342, 389.) Therefore, it is rare that an appellate record will establish ineffective assistance of counsel. (People v. Thompson, supra, 49 Cal.4th at p. 122.)
The record on appeal here does not establish ineffective assistance of counsel with respect to the probation search condition, since there is a satisfactory explanation for defense counsel’s failure to object to the search condition or to request its modification: the probation search condition imposed by the trial court was not improper.
The California Supreme Court has stated, “[B]y accepting probation, a probationer consents to the waiver of Fourth Amendment rights in order to avoid incarceration. ‘A probationer who has been granted the privilege of probation on condition that he [or she] submit at any time to a warrantless search may have no reasonable expectation of traditional Fourth Amendment protection.’ [Citation.] Therefore, ‘when defendant in order to obtain probation specifically agreed to permit at any time a warrantless search of his person, car and house, he [or she] voluntarily waived whatever claim of privacy he [or she] might otherwise have had.’ [Citations.]” (People v. Ramos (2004) 34 Cal.4th 494, 506; People v. Olguin (2008) 45 Cal.4th 375, 384 (Olguin).) In short, “ ‘a suspicionless search pursuant to a probation search condition is not prohibited by the Fourth Amendment.’ ” (Olguin, supra, 45 Cal.4th at p. 384.)
Where, as here, the probation condition does not infringe upon a constitutional right, we do not determine “whether the condition is closely tailored to achieve its legitimate purpose of rehabilitating defendant and protecting the probation officer.” (Olguin, supra, 45 Cal.4th at p. 384.) Instead, the condition is reviewed for abuse of discretion, “that is, for an indication that the condition is ‘arbitrary or capricious’ or otherwise exceeds the bounds of reason under the circumstances. [Citation.]” (Ibid.)
Defense counsel may have recognized that the probation search condition at issue here—allowing a warrantless search of defendant’s person, place of residence, vehicle and property under his control—was not arbitrary or capricious. It is well established that a probation search condition has a “dual purpose . . . ‘to deter further offenses by the probationer and to ascertain whether he is complying with the terms of his [or her] probation’ [citation]. . . . [T]o determine not only whether he [or she] disobeys the law, but also whether he [or she] obeys the law. Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given the defendant and his [or her] amenability to rehabilitation.’ [Citation.]” (People v. Bravo (1987) 43 Cal.3d 600, 610.)
“Thus, warrantless search conditions serve a valid rehabilitative purpose, and because such a search condition is necessarily justified by its rehabilitative purpose, it is of no moment whether the underlying offense is reasonably related to theft, narcotics, or firearms[.]” (People v. Balestra (1999) 76 Cal.App.4th 57, 67.) Moreover, the broad scope of the warrantless probation search condition in this case allows the probation officer to monitor defendant’s compliance with the other terms and conditions of his probation, which require him to seek and maintain gainful employment or vocational training, and also bar him from working or volunteering in an organization that involves the supervision of children, having any firearms or ammunition, and having direct or indirect contact with M. The probation search condition therefore serves a valid rehabilitative purpose. (Ibid.)
Thus, not only is defense counsel’s failure to object to the probation search condition or request a modification limiting its scope satisfactorily explained by the likelihood that the probation condition was proper under the circumstances of this case, the record reflects that an objection to the probation search condition would have been futile. Defense counsel’s failure to object or request modification therefore did not result in any prejudice to defendant. Consequently, we find no merit in defendant’s contention of ineffective assistance of counsel with regard to the probation search condition.
V. DISPOSITION
The judgment is affirmed.



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Bamattre-Manoukian, J.





WE CONCUR:




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RUSHING, P.J.







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LUCERO, J.*








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