People v. Forrest

Filed 6/18/15

CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D065056

Plaintiff and Respondent,

v. (Super. Ct. No. SCS264145)

TAHEEDAH FORREST,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Ana L.

Espana, Judge. Affirmed as modified and remanded with directions.

Avatar Legal and Cynthia M. Jones, under appointment by the Court of Appeal,

for Defendant and Appellant.

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

Arlene A. Sevidal and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and

Respondent.

* Pursuant to California Rules of Court, rule 8.110, this opinion is certified for
publication with the exception of parts I, II, III and V of the Discussion.
 This case arose in the courthouse in Chula Vista when defendant Taheedah Forrest

physically attacked and threatened her sister-in-law, Patria Smith, who was testifying as a

prosecution witness against Forrest's brother (Smith's husband) during his robbery trial.

In the present case, a jury convicted Forrest of (1) dissuading a witness (Smith) from

testifying (count 1: Pen. Code, § 136, subd. (a)(1); all further undesignated statutory

references will be to the Penal Code unless otherwise specified), and (2) making a

criminal threat (count 2: § 422). As to count 1 the jury found to be true an allegation that

Forrest committed and attempted to commit that offense through the use of force and an

express and implied threat of force (§ 136, subd. (c)(1)). The court sentenced Forrest to

three years' formal probation, conditioned on her serving 365 days in jail with credit for

time already served.

On appeal Forrest challenges her convictions, contending (1) the court

prejudicially erred by allowing an investigator to testify for the prosecution that he had

conducted a threat assessment for the district attorney's office and had determined that

Smith should be placed in a witness protection program, (2) the prosecutor committed

misconduct by prejudicially engaging in impermissible vouching in violation of Forrest's

federal constitutional right to due process, and (3) the court prejudicially erred by failing

to instruct the jury sua sponte on the lesser included offense of attempting to make a

criminal threat.

Forrest also contends that three conditions of her probation (conditions 6.d., 12.f.,

and 12.g.) are unconstitutionally vague and/or overbroad and must be either stricken or

modified.

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 Last, Forrest contends that both the October 28, 20131 minute order and the

October 28 probation order must be corrected to reflect the court's oral pronouncement of

sentence that she serve 365 days (not 372 days) in local custody as a condition of her

probation. The Attorney General acknowledges the minute order and probation order

should be corrected to conform to the oral pronouncement of judgment.

For reasons we shall explain, we modify condition 12.g. of Forrest's probation in

order to avoid unconstitutional overbreadth, and we affirm the judgment as so modified.

However, we remand the matter to the superior court with directions to correct the

October 28 minute order and the October 28 probation order to reflect the court's oral

pronouncement of sentence that she serve 365 days in local custody as a condition of her

probation.

FACTUAL BACKGROUND

On April 12 the victim in this case, Smith, testified as a prosecution witness at the

San Diego County Superior Court's courthouse in Chula Vista in a criminal case in which

Smith's husband, Lukmond Muhammad, and Anthony Bolden were on trial for

committing a robbery. Smith was also charged in connection with the robbery because

she had participated as the getaway driver. After she pleaded guilty to being an accessory

after the fact, she entered into an agreement with the district attorney's office under which

she would testify truthfully against her husband and Bolden, and in exchange she would

be sentenced to custody for the length of time she had already served.

1 All further dates are to calendar year 2013.
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 Forrest is Smith's sister-in-law because Smith is married to her brother. Forrest

and her sister, Fatima Muhammad,2 were in the courtroom on April 12, the day Smith

testified against Lukmond.

In the present case, Smith testified for the prosecution that while she was testifying

at Lukmond's trial, Forrest made noises, whispered, and twice stood up and left the

courtroom in "a loud, rude[] manner." Later, after the court announced a recess during

Smith's testimony, Smith and her godmother, Veronica Hall, stepped out of the

courtroom and took the elevator to the second floor to use the restroom. When they

found the women's restroom was closed, they headed for the escalator. Before they

reached the escalator, Forrest and her sister, Fatima, approached Smith.

Smith also testified that Forrest was angry when she approached Smith, and

Forrest "got in [her] face" while "talking a lot of verbal abuse." Smith further testified

that Forrest spoke to her in a "mean manner" and angrily kept yelling, "You're going to

get it. You're going to get it. Do you think you are going to live? You are going to get it

after court." Smith testified that Fatima was "holding [Forrest] back" while Forrest was

yelling at Smith.

In similar testimony, Hall stated that Forrest "called [Smith] some names" and said

to Smith, "You think you will live through this? We will get you. We will get you when

you get out of here. Wait until we get out of here outside." Hall also testified that Forrest

told Smith she did not understand why Smith was testifying against Forrest's brother.

2 As Fatima Muhammad and Lukmond Muhammad share the same last name, we
shall refer to them by their first names.
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 Smith testified that she "asked [Forrest] what was the problem," and then Hall

pulled Smith away and they (Smith and Hall) "just walked away" toward the escalators

while Forrest continued to angrily yell across the room. Before Smith and Hall reached

the escalators, Forrest approached Smith and hit her in the face. Smith described the

blow as "a hard impact" and testified she believed Forrest had been holding an object in

the hand she had used in hitting her. Smith's injuries included a swollen lip and scratches

on her cheek near her nose. The force of the impact broke Smith's glasses and caused

them to fall to the floor in pieces.

Hall yelled for help and a sheriff's deputy responded. Smith recounted the incident

to the deputy district attorney and eventually she was taken to a jury room.

Julio Barrios, a supervising investigator for the district attorney's office, testified

that when he arrived at the courthouse and met with Smith in the jury room after the

incident, she appeared "shaken up" and "upset," and she had "tears on her face." Barrios

also testified that Smith told him she did not want to testify.

Smith testified that, as a result of Forrest's actions outside the courtroom, she did

not want to continue testifying at Lukmond's trial because she "felt as if [her] life was in

danger, and [she] was scared of . . . [the] possibility of what could happen afterwards."

Smith was not able to finish testifying that day.

Smith also testified she met with an investigator for the district attorney's office

(Barrios) after the April 12 incident for the purpose of assessing whether she would need

to relocate, and she did have to relocate.

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 Deputy Cesar Castillo of the San Diego County Sheriff's Department testified that

on April 12 he interviewed Fatima and Forrest at the courthouse regarding the incident.

He testified that Fatima told him that Forrest had argued with Smith over Smith's

testifying at trial. He also testified that Fatima did not indicate Forrest had been attacked

or spat upon.

Sheriff's deputies later arrested Forrest based on an outstanding felony warrant. A

courthouse surveillance video recording of the April 12 incident showing Forrest hitting

Smith was played for the jury and admitted into evidence.

Forrest testified in her own defense. She testified that she had learned from Smith

that Smith was going to testify at her (Forrest's) brother's trial. Defense counsel asked

Forrest whether, when she came to court on April 12 to attend Lukmond's trial, "it

bother[ed] [her] at all [that Smith] was testifying in [her] brother's case." Forrest replied,

"No."

Forrest admitted on cross-examination that she angrily slapped Smith in the face

and left a scratch because "[her] nails [were] long." She testified that she slapped Smith

because Smith had "talk[ed] S-H-I-T to [her]" and spat in her face.

DISCUSSION

I. ADMISSION OF BARRIOS'S TESTIMONY

Forrest first contends her convictions should be reversed because the court

prejudicially erred by allowing Barrios, an investigator for the district attorney's office, to

testify for the prosecution that he had conducted a "threat assessment" for the district

attorney's office and had determined that Smith should be placed in a witness protection

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program as a result of the April 12 courthouse incident in which Forrest attacked Smith.

Specifically, Forrest contends (1) the court "abused its discretion in allowing Barrios's

irrelevant and unduly prejudicial testimony about why the [prosecution] believed it was

justified in placing Smith in the witness protection program," and (2) the court also

"abused its discretion in refusing to grant a mistrial after this evidence was admitted."

Forrest's contentions are unavailing.

A. Background

1. Barrios's testimony about the threat assessment and Forrest's mistrial motion

During his cross-examination of Smith in this case, defense counsel asked her

whether it was true that she had received money from the prosecution. Specifically,

Forrest's attorney asked Smith: "[A]fter you completed your testimony in [Lukmond's]

case, you were given some money from the district attorney so that you could move to

another location; isn't that true? [¶] Isn't that true, ma'am, you were given some money

and relocated to another location from the district attorney?"

Shortly thereafter, on redirect examination, the prosecutor introduced the phrase

"threat assessment" to the jury by asking Smith, "After meeting with [the] D.A.

investigator, after this incident that happened [on April 12] here on the second floor, did

he do what is called a threat assessment?" The court sustained a defense objection and

Smith did not answer the question. The following exchange then took place between the

prosecutor and Smith:

"[The prosecutor]: Did you and the D.A. investigator talk about the
options of moving outside the county?

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 "[Smith]: Yes.

"[The prosecutor]: And was that because of this incident that
happened on April 12th, 2013?

"[Smith]: Yes.

"[The prosecutor]: Okay. Prior to April 12th, 2013, had you
received any money from the D.A.'s office—

"[Smith]: No.

"[The prosecutor]: —to testify in that robbery case?

"[Smith]: No."

The prosecutor then asked Smith: "Any money that you received after April 12th

was a result of the need to relocate you; is that right?" After the court sustained an

objection by defense counsel, the prosecutor rephrased his question and the following

exchange occurred about why Smith was receiving money from the district attorney's

office:

"[The prosecutor]: [A]s far as you knew, why did you receive
money from the D.A.'s office?

"[Smith]: To relocate.

"[The prosecutor]: Right. Was that to pay for some of your moving
expenses ?

"[Smith]: Yes. [¶] . . .

"[The prosecutor]: Was some of the money given to you . . . so you
could get out of town?

"[Smith]: Yes."

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 The prosecution later called Barrios to testify about his April 12 interview of

Smith immediately after Forrest attacked her at the courthouse. Barrios testified about

Smith's condition and about her statement to him that she did not want to testify. Shortly

thereafter Barrios stated, "[W]e realized we had a witness protection issue now, and so I

took a statement from her and got the information to do a threat assessment." At the

prosecutor's request, Barrios explained that "[a] threat assessment is . . . basically an

assessment involving the safety and security of a witness for potential or actual threats or

attacks against a witness."

Defense counsel objected and asked for a mistrial, stating that Barrios's testimony

was "incredibly irrelevant and incredibly prejudicial." Overruling the objection, the court

told defense counsel he could make "further arguments outside the presence of the jury

when we recess later on in a few minutes."

Barrios then testified that "the decision was made to do a preliminary or what we

call an emergency relocation." The prosecutor asked Barrios to explain, and he

responded that, "with the consent of the individual—once we complete the initial threat

assessment, then we move them from their residence to a temporary, undisclosed

location." Barrios explained that the district attorney's office pays for the cost, but it

"get[s] reimbursement from the State of California through a witness protection

program." Barrios also explained that Smith was moved that night (April 12) to a

temporary location and ultimately her relocation "went from a temporary to a more

permanent relocation."

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 The prosecutor asked Barrios about "the purpose of moving [Smith] to another

location permanently." Barrios replied, "To keep her safe, to make her safe."

Agreeing that Smith's relocation was a "result of what happened on April 12th,"

Barrios testified that the monthly amount she would receive to cover rent and other living

expenses "once the permanent relocation was established" was calculated to be $1,735 a

month and the payments would end 180 days "after the case is over."

Following an unreported sidebar conference, defense counsel argued in chambers

that Barrios's testimony about a "threat assessment and everything else" was "totally

irrelevant to the charges before [the] jury," it "ha[d] nothing to do with whether or not

these crimes were committed," and "[i]t solely goes to try and prejudice my client."

Observing that there had been "a discussion about money" and defense counsel

had "brought that out," the court stated that it "seem[ed] . . . reasonable for the

People . . . to follow-up and just explain how that . . . came about."

Responding that "the jury certainly has the right to hear whether or not the district

attorney has been providing any funding to [Smith]," defense counsel stated, "I don't

think the jury has the right to know . . . that the district attorney's office did this

investigation and . . . reached this threat assessment thing," or that, "based on this threat

assessment thing, that's why they decided to send her to . . . wherever they sent her and

pay her transportation and pay her money." Defense counsel continued:

"That's another way of . . . saying to the jury, [']Ladies and
gentlemen, we thought this witness was so terrified, that she was so
at-risk of being injured, that she was so subject to potential threats,
that we decided we better get her out of the state. [¶] It has no

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 relevance to whether these charges are true or not. It's not of any
evidentiary value. It's only prejudicial."

Defense counsel asked the court to strike Barrios's testimony about the threat

assessment, and also renewed his request for a mistrial.

In response the prosecutor pointed out that Forrest's attorney had asked Smith

whether she was "receiving money from the D.A.'s office." The prosecutor argued that

the People had a right to explain to the jury why Smith was receiving money from the

district attorney's office:

"The way [defense] counsel . . . would like to leave it is that [Smith]
is getting $825 a month . . . and it looks like she is being a witness
that has been paid off. [¶] And I have every right to explain why
[Smith] [is] getting paid, and [defense] counsel is the one who
opened the door to that. Mr. Barrios wouldn't have had [to] testify if
[defense counsel] hadn't opened that door with [Smith] so I have
every right to try to explain that."

Responding to defense counsel's objections, the court stated:

"[T]here has been a lot of discussion about money being paid to
[Smith] from the district attorney's office and her having to relocate,
and that she did relocate. And we know now that she is still
relocated and not in San Diego. So all of that has come in as part of
[Smith]'s testimony, and it seems that both counsel wanted that
information to come out. And certainly you crossed[-examined] on
that, and there was a lot you had in terms of cross-examination on
those issues.

"So this didn't surprise me so much as it was really a follow-up to
that. And it seemed reasonable to at least have [the] People explain
why that came about so that it makes sense. It sort of connects the
dots."

The court ultimately denied defense counsel's request for a mistrial, stating:

"I feel that the testimony was appropriate given—particularly the
cross-examination that was done in this case. It helps further explain

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 to the jury why things were done. [¶] . . . All the things that you
talked about, the money, the move out is all relevant, and this is just
the witness explaining that process and how it went about."

2. The court's limiting instruction

The following day, before Barrios resumed testifying, the court provided the

following instructions to the jury:

"You heard testimony yesterday from [Barrios] that he interviewed
[Smith] after the alleged incident . . . which is alleged to have
occurred on April 12th. You heard testimony from [Barrios]
yesterday that he conducted what he described . . . as a threat
assessment. I am going to redact the word 'threat' and order that you
not consider that for any purpose, the word [']threat[,'] as part of an
assessment. And that the jury is to disregard the use of that term or
the word [']threat.[']

"You also heard evidence that it was after this . . . completed
assessment that the decision was made to relocate [Smith].

"Now, let me emphasize this to you. This testimony that you heard
yesterday is not to be used by you in determining whether or not the
defendant, [Forrest], is guilty of the charges against her. Again, let
me reiterate it to you. The testimony that you heard yesterday is not
to be used by you in determining whether or not [Forrest] is guilty of
the charges against her. That testimony yesterday by [Barrios] was
admitted for a limited purpose only, and that is to explain the
subsequent living arrangements of . . . [Smith]'s housing, move out
of the state, the money that she received from the district attorney's
office—that kind of evidence which you've already heard—ample
evidence of. And that's what the purpose of that testimony was
yesterday, and you are to consider it only for that purpose to explain,
again, her housing situation, her move out of state, and the money
she receives from the district attorney's office.

"Again, I'll remind you, you are the judges of the facts. Your job is
to determine whether or not a crime occurred in this case and
whether or not the People have proved every element of each charge
beyond a reasonable doubt. Again, that's your job."

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 Later in the trial Forrest's attorney introduced impeachment evidence suggesting

Smith had fabricated her testimony out of a desire to relocate at the district attorney's

expense. Fatima testified on behalf of the defense that she heard Smith more than once

express a desire to get out of San Diego. She also testified that Smith told her that she

was thinking of moving to the East Coast to be with her grandmother.

During his closing argument, the prosecutor addressed Barrios's testimony:

"Investigator Barrios . . . took the stand. [¶] [During the robbery
trial on April 12], [Smith] identified her husband as one of the
suspects, explained the reason for the relocation. Look[,] we had a
witness that had been threatened, had been slapped in court. Her
testimony wasn't done. We needed to move her. That explains the
money paid to [Smith]. [She] isn't a witness who is receiving cash
payments so that [she] can testify a certain way. She didn't receive a
cent before April 12th, 2013. So any indication that she is somehow
a bought-off witness is completely false. The only reason she had
anything paid to her or for her was because of the need to relocate
her, because of what happened on April 12th. That's what
investigator Barrios explained to us."

As pertinent here, the court instructed the jury under CALCRIM No. 303 that

"[d]uring the trial, certain evidence was admitted for a limited purpose. You may

consider that evidence only for that purpose and for no other."

B. Applicable Legal Principles

1. Mistrial motions

Generally, "[w]e review the denial of a motion for mistrial under the deferential

abuse of discretion standard." (People v. Cox (2003) 30 Cal.4th 916, 953, disapproved on

other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The Cox court

explained that "'"[a] mistrial should be granted if the court is apprised of prejudice that it

13
judges incurable by admonition or instruction. [Citation.] [T]he trial court is vested with

considerable discretion in ruling on mistrial motions.'''" (Cox, at p. 953.).)

2. Evidentiary rulings

a. Evidence Code sections 350 and 210

Evidence Code section 350 provides that only relevant evidence is admissible.

Evidence Code section 210 defines relevant evidence as "evidence, including evidence

relevant to the credibility of a witness or hearsay declarant, having any tendency in

reason to prove or disprove any disputed fact that is of consequence to the determination

of the action."

b. Evidence Code section 352

Evidence Code section 352 provides: "The court in its discretion may exclude

evidence if its probative value is substantially outweighed by the probability that its

admission will (a) necessitate undue consumption of time or (b) create substantial danger

of undue prejudice, of confusing the issues, or of misleading the jury."

"When an objection to evidence is raised under Evidence Code section 352, the

trial court is required to weigh the evidence's probative value against the dangers of

prejudice, confusion, and undue time consumption. Unless these dangers 'substantially

outweigh' probative value, the objection must be overruled." (People v. Cudjo (1993) 6

Cal.4th 585, 609.) Thus, evidence is properly excluded under Evidence Code section 352

"if its probative value is substantially outweighed by the probability that its admission

will . . . necessitate undue consumption of time or . . . create a substantial danger of

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undue prejudice, of confusing the issues, or of misleading the jury." (§ 352; Cudjo, at p.

609.)

The California Supreme Court has explained that "[t]he prejudice which exclusion

of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or

damage to a defense that naturally flows from relevant, highly probative evidence. '[All]

evidence which tends to prove guilt is prejudicial or damaging to the defendant's case.

The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in

Evidence Code section 352 applies to evidence which uniquely tends to evoke an

emotional bias against the defendant as an individual and which has very little effect on

the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous

with "damaging."'" (People v. Karis (1988) 46 Cal.3d 612, 638, italics added.)

3. Standards of review

"[A] trial court has broad discretion in determining the relevance of evidence"

(People v. Carter (2005) 36 Cal.4th 1114, 1166-1167), and we will not reverse the court's

ruling unless there is a clear abuse of discretion (People v. Waidla (2000) 22 Cal.4th 690,

717-718). We also review the trial court's rulings under Evidence Code section 352 for

an abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.)

Under the abuse of discretion standard of review, a trial court's exercise of

discretion in admitting or excluding evidence will not be disturbed, and reversal of the

judgment is not required, "except on a showing the trial court exercised its discretion in

an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage

of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

15
 "The 'routine application of state evidentiary law does not implicate [a] defendant's

constitutional rights.'" (People v. Hovarter (2008) 44 Cal.4th 983, 1010.) A trial court's

error under state law in the admission or exclusion of evidence following an exercise of

discretion is properly reviewed for prejudice under People v. Watson (1956) 46 Cal.2d

818, 836 (Watson). (People v. McNeal (2009) 46 Cal.4th 1183, 1203.) Under the

Watson harmless error test, the trial court's judgment may be overturned only if "it is

reasonably probable that a result more favorable to the [defendant] would have been

reached in the absence of the error." (Watson, at p. 836.)

C. Analysis

We first reject Forrest's contention that the court "abused its discretion in allowing

Barrios's irrelevant and unduly prejudicial testimony about why the [prosecution]

believed it was justified in placing Smith in the witness protection program." (Italics

added.) As discussed more fully in the foregoing background, defense counsel attacked

Smith's credibility as the People's principal witness by (1) eliciting her testimony on

cross-examination that she was receiving regular monthly payments from the district

attorney's office in the amount of $825 so that she could move from San Diego; and by

(2) eliciting testimony from Forrest's sister, Fatima, that she had heard Smith express a

desire to get out of San Diego and that Smith had told her she was thinking of moving to

the East Coast to be with her grandmother. The defense presented this testimony to

support an inference that Smith's testimony about the April video-recorded incident that

is the subject of this prosecution was not credible because she had a financial motive to

provide testimony that supported the People's case. Indeed, defense counsel told the jury

16
during his closing argument that "they are paying her, and they are still paying her. She

has been relocated to someplace. And . . . my recollection of Mr. Barrios' testimony is

that they are paying her $1,735 a month. [¶] . . . [¶] So I think there [are] lots of reasons

why you have to be skeptical of her testimony." (Italics added.)

We conclude the court did not abuse its broad discretion in admitting Barrios's

challenged testimony about the threat assessment he conducted and his determination that

Smith should be placed in a witness protection program as a result of the April 12

incident. His testimony was relevant to the issue of Smith's credibility, which the

defense vigorously attacked, because it was an explanation of how and why the district

attorney's office was financially assisting her, and thus it had some "tendency in reason"

(Evid. Code, § 210) to disprove the inference the defense plainly intended the jury to

draw that Smith had a financial motivate to lie. The defense opened the door by

presenting evidence that Smith was receiving payments from the district attorney's office

and the court did not abuse its discretion by allowing the prosecution to present Barrios's

relevant testimony explaining how and why the district attorney's office was financially

assisting her.

Also, Forrest has failed to meet her burden of showing the probative value of

Barrios's testimony was "substantially outweighed by the probability that its admission

[would] create substantial danger of undue prejudice" within the meaning of Evidence

Code section 352. As noted, the defense very effectively attacked Smith's credibility by

presenting evidence she was receiving substantial sums of money from the District

attorney's office. By failing to present evidence explaining why she was receiving that

17
money, the defense obviously intended that the jury draw an inference that Smith's

crucial testimony in support of the People's case was in exchange for the payments she

was receiving. In the exercise of its broad discretion, the court properly allowed the

prosecution to present Barrios's testimony explaining why Smith was receiving those

payments so that the jury could make an informed and just finding regarding Smith's

credibility. The court also acted properly to avoid undue prejudice by instructing the jury

to "not consider . . . for any purpose" the word "threat" used by Barrios in the phrase

"threat assessment." Barrios's testimony that Smith was placed in the witness protection

program as a result of the April 12 courthouse incident was not unduly prejudicial. The

jury already had heard Smith's and Hall's detailed testimony about Forrest's video-

recorded physical attack on Smith and the testimony showing Smith did not want to

continue testifying in Lukmond's trial after Forrest attacked and threatened her. The

jurors had also seen a photograph of the injuries Smith suffered when Forrest hit her.

As already discussed, all evidence that tends to prove guilt is prejudicial or

damaging to the defendant's case, and the stronger the evidence, the more it is

"prejudicial." (People v. Karis, supra, 46 Cal.3d at p. 638.) However, for purposes of

applying Evidence Code section 352, "prejudicial" is not synonymous with "damaging."

(Karis, at p. 638.) Here, we conclude that while Barrios's challenged testimony was

undoubtedly damaging to the defense, it was not unduly prejudicial for purposes of

Evidence Code section 352. In light of our conclusions, we need not address Forrest's

contention that the admission of the challenged portions of Barrios's testimony was not

harmless under the Watson harmless error test.

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 We also reject Forrest's contention that the court "abused its discretion in refusing

to grant a mistrial after this evidence was admitted." As discussed, ante, a trial court is

vested with considerable discretion in ruling on a mistrial motion. (People v. Cox, supra,

30 Cal.4th at p. 953.) As noted, the court gave the jury curative instructions. In light of

those instructions and the overwhelming evidence of Forrest's guilt, we conclude the

court did not abuse its discretion in denying her motion for a mistrial.

II. CLAIM OF IMPERMISSIBLE VOUCHING BY THE PROSECUTOR

Forrest also contends her convictions should be reversed because the prosecutor

committed misconduct by prejudicially engaging in impermissible vouching in violation

of Forrest's federal constitutional right to due process. This contention is unavailing.

A. Applicable Legal Principles

A prosecutor in a criminal case can commit misconduct under either federal or

state law. "A prosecutor's conduct violates the Fourteenth Amendment to the federal

Constitution when it infects the trial with such unfairness as to make the conviction a

denial of due process. Conduct by a prosecutor that does not render a criminal trial

fundamentally unfair is prosecutorial misconduct under state law only if it involves the

use of deceptive or reprehensible methods to attempt to persuade either the trial court or

the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.)

A prosecutor commits misconduct by improperly vouching for the credibility of a

witness. The California Supreme Court has explained that "[a] prosecutor is prohibited

from vouching for the credibility of witnesses or otherwise bolstering the veracity of their

testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor

19
permitted to place the prestige of her office behind a witness by offering the impression

that she has taken steps to assure a witness's truthfulness at trial." (People v. Frye (1998)

18 Cal.4th 894, 971, overruled on other grounds in People v. Doolin, supra, 45 Cal.4th at

p. 421, fn. 22.) A prosecutor also may not "express a personal opinion or belief in a

defendant's guilt, where there is substantial danger that jurors will interpret this as being

based on information at the prosecutor's command, other than evidence adduced at trial."

(People v. Bain (1971) 5 Cal.3d 839, 848.)

However, as the California Supreme Court repeatedly has held, to preserve a claim

of prosecutorial misconduct for appeal a defendant must (1) object in a timely fashion on

that ground, and (2) request a curative jury admonition unless an admonition would not

have cured the harm caused by the misconduct. (People v. Stanley (2006) 39 Cal.4th

913, 952 (Stanley); People v. Hinton (2006) 37 Cal.4th 839, 863 (Hinton); People v.

Crew (2003) 31 Cal.4th 822, 839 (Crew).)

B. Analysis

In support of her claim of prosecutorial misconduct, Forrest asserts the prosecutor

"improperly vouched for Smith's credibility" by presenting Barrios's testimony "about the

witness relocation program" and by relying on that testimony during his closing argument

because "[t]he testimony and argument had the effect of telling the jury that the People

had conducted an assessment prior to trial and that based on the assessment, [the People]

had concluded that Smith had been threatened and that her safety was at risk." Forrest

also complains that the prosecutor engaged in "impermissible vouching based on facts

outside the record" by stating during his closing argument that he brought this case

20
against Forrest because a crime had been committed and he believed he could prove it

beyond a reasonable doubt based on evidence that a crime occurred.

In response the Attorney General argues that Forrest "forfeited her right to argue

for the first time on appeal" that the prosecutor committed prejudicial misconduct by

engaging in improper vouching because Forrest "did not object . . . on the grounds of

vouching." We agree. To preserve for appeal her claim that the prosecutor committed

prosecutorial misconduct by engaging in impermissible vouching, she was required to

both (1) object in a timely fashion on that ground, and (2) request a curative jury

admonition unless an admonition would not have cured the harm caused by the

misconduct. (Stanley, supra, 39 Cal.4th at p. 952; Hinton, supra, 37 Cal.4th at p. 863;

Crew, supra, 31 Cal.4th at p. 839.) A review of the record discloses that the defense

never raised in the trial court an objection that the prosecutor committed misconduct by

engaging in improper vouching, the defense did not raise any objection that was

tantamount to such an objection, nor did the defense ever request a curative jury

admonition. Accordingly, we conclude Forrest forfeited her prosecutorial misconduct

claims.

III. INSTRUCTIONAL ERROR CLAIM

Forrest further contends her convictions should be reversed because the court

prejudicially erred by failing to instruct the jury sua sponte on the lesser included offense

of attempting to make a criminal threat. We reject this contention.

21
 A. Applicable Legal Principles

1. Criminal threat and attempted criminal threat

"[T]he crime of criminal threat is set forth in section 422." (People v. Toledo

(2001) 26 Cal.4th 221, 227 (Toledo).) "In order to prove a violation of section 422, the

prosecution must establish all of the following: (1) that the defendant 'willfully

threaten[ed] to commit a crime which will result in death or great bodily injury to another

person,' (2) that the defendant made the threat 'with the specific intent that the

statement . . . is to be taken as a threat, even if there is no intent of actually carrying it

out,' (3) that the threat—which may be 'made verbally, in writing, or by means of an

electronic communication device'—was 'on its face and under the circumstances in which

it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to

the person threatened, a gravity of purpose and an immediate prospect of execution of the

threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for

his or her own safety or for his or her immediate family's safety,' and (5) that the

threatened person's fear was 'reasonabl[e]' under the circumstances." (Toledo, at pp.

227-228, italics added.)

Although section 422 (as pertinent here) requires the threatened person

"reasonably to be in sustained fear for his or her own safety" (§ 422, subd. (a), italics

added), that statute does not define the term "sustained fear." (People v. Allen (1995) 33

Cal.App.4th 1149, 1150 (Allen); see § 422.) However, the courts have held that a

threatened person's fear, to be "sustained" within the meaning of section 422, need only

22
be for a "'period of time that extends beyond what is momentary, fleeting, or transitory.'"

(People v. Fierro (2010) 180 Cal.App.4th 1342, 1349 (Fierro), quoting Allen, at p. 1156.)

"[U]nder California law, there is a crime of attempted criminal threat." (Toledo,

supra, 26 Cal.4th at p. 224.) "A variety of potential circumstances fall within the reach

of the offense of attempted criminal threat." (Id. at p. 231.) For example, "if a

defendant, . . . acting with the requisite intent, makes a sufficient threat that is received

and understood by the threatened person, but, for whatever reason, the threat does not

actually cause the threatened person to be in sustained fear for his or her safety even

though, under the circumstances, that person reasonably could have been placed in such

fear, the defendant properly may be found to have committed the offense of attempted

criminal threat." (Ibid.)

2. Principles governing a trial court's duty to instruct on a lesser included offense

"The trial court is obligated to instruct the jury on all general principles of law

relevant to the issues raised by the evidence, whether or not the defendant makes a formal

request." (People v. Blair (2005) 36 Cal.4th 686, 744.) "That obligation encompasses

instructions on lesser included offenses if there is evidence that, if accepted by the trier of

fact, would absolve the defendant of guilt of the greater offense but not of the lesser."

(Id. at p. 745.)

Thus, "[a] trial court has a sua sponte duty to 'instruct on a lesser offense

necessarily included in the charged offense if there is substantial evidence the defendant

is guilty only of the lesser.'" (People v. Shockley (2013) 58 Cal.4th 400, 403.)

"Substantial evidence in this context is evidence from which a reasonable jury could

23
conclude that the defendant committed the lesser, but not the greater, offense." (Ibid.)

The trial court "need instruct the jury on a lesser included offense only '[w]hen there is

substantial evidence that an element of the charged offense is missing, but that the

accused is guilty of' the lesser offense." (Id. at p. 404.)

a. Watson harmless error standard

"[I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully,

on all lesser included offenses and theories thereof which are supported by the evidence

must be reviewed for prejudice exclusively under Watson. A conviction of the charged

offense may be reversed in consequence of this form of error only if, 'after an

examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it

appears 'reasonably probable' the defendant would have obtained a more favorable

outcome had the error not occurred." (People v. Breverman (1998) 19 Cal.4th 142, 178,

citing Watson, supra, 46 Cal.2d at p. 836, fn. omitted.)

b. Standard of review

"An appellate court applies the independent or de novo standard of review to the

failure by a trial court to instruct on an uncharged offense that was assertedly lesser than,

and included, in a charged offense." (People v. Waidla, supra, 22 Cal.4th at p. 733.)

B. Analysis

In support of her contention that the court prejudicially erred by failing sua sponte

to instruct the jury on attempted criminal threat as a lesser included offense of the crime

of making a criminal threat (§ 422) charged in count 2, Forrest asserts "there was

24
evidence from which the jury could conclude that [she] intended to threaten Smith," but

that Smith was not "actually placed in sustained fear." (Italics added.)

As already discussed, "if a defendant, . . . acting with the requisite intent, makes a

sufficient threat that is received and understood by the threatened person, but, for

whatever reason, the threat does not actually cause the threatened person to be in

sustained fear for his or her safety even though, under the circumstances, that person

reasonably could have been placed in such fear, the defendant properly may be found to

have committed the offense of attempted criminal threat." (Toledo, supra, 26 Cal.4th at

p. 231, second italics added.) To be sustained within the meaning of section 422, the

threatened person's fear need only be for a "'period of time that extends beyond what is

momentary, fleeting, or transitory.'" (Fierro, supra, 180 Cal.App.4th at p. 1349), quoting

Allen, supra, 33 Cal.App.4th at p. 1156.)

We conclude the court did not err in failing to instruct the jury sua sponte on the

lesser included offense of attempting to make a criminal threat because (1) there is no

substantial evidence from which a reasonable jury could find that Smith did not suffer

sustained fear─that is, that she suffered only momentary, fleeting, or transitory

fear─following Forrest's video-recorded attack and her threatening statements; and, thus,

(2) there is no substantial evidence from which a reasonable jury could find that Forrest

was guilty of the lesser offense of attempting to make a criminal threat but not guilty of

the charged offense of making a criminal threat. Smith testified that before Forrest hit

her, Forrest angrily yelled at her, "You're going to get it. You're going to get it. Do you

think you are going to live? You are going to get it after court." (Italics added.) In

25
similar testimony, Hall stated that Forrest told Smith, "You think you will live through

this? We will get you. We will get you when you get out of here. Wait until we get out

of here outside." (Italics added.) At trial Forrest admitted that she angrily hit Smith in

the face. According to Smith, the force of the impact broke her glasses and caused them

to fall to the floor in pieces. Smith also testified that when she went back upstairs and

spoke to the prosecutor, she said she did not want to testify because she felt "scared" and

"felt as if [her] life was in danger."

Other witnesses testified that Smith appeared to be frightened after Forrest hit her

and threatened her. When asked about Smith's demeanor after the incident, Hall testified

that Smith was scared. Barrios testified that when he arrived at the courthouse and met

with Smith in the jury room after the incident, she appeared "shaken up" and "upset," and

she had "tears on her face." Barrios also testified that Smith told him she did not want to

testify. Smith testified that she met with Barrios after the incident for the purpose of

assessing whether she would need to relocate, and that she did have to relocate.

In support of her claim of instructional error, Forrest points to her own testimony

and Fatima's testimony that before Forrest hit Smith, Smith made taunting remarks as she

(Smith) was walking away. Forrest also relies on her trial counsel's statements during his

closing argument that the video of the incident showed that when Smith and Forrest "got

near each other," Smith did not "flinch" and was "standing her ground." Forrest also

relies on the fact that her trial counsel, after referring to Smith's testimony that she

walked away from Forrest before Forrest hit her, asked the jury during his closing

argument, "Does that sound like somebody who is frightened? Does that sound like

26
somebody who feels that they have been threatened, that their life has been threatened?"

Pointing out the obvious, we note that Forrest is relying on evidence and defense

counsel's statements to the jury relating to Smith's conduct before Forrest physically

attacked Smith by hitting her in the face.

We conclude Forrest has failed to show there is substantial evidence from which a

reasonable jury could find that Smith did not suffer sustained fear─that is, that she

suffered only momentary, fleeting, or transitory fear─following Forrest's video-recorded

attack and her threatening statements. Thus, we also conclude Forrest has failed to meet

her burden of showing there is substantial evidence from which a reasonable jury could

find that Forrest was guilty of the lesser offense of attempting to make a criminal threat

but not guilty of the charged offense of making a criminal threat. (See People v.

Shockley, supra, 58 Cal.4th at p. 403 ["Substantial evidence in this context is evidence

from which a reasonable jury could conclude that the defendant committed the lesser, but

not the greater, offense."].)

Even if we were to assume for the purpose of argument that she had met her

burden of showing there is such evidence and that the court had committed error by

failing to instruct the jury on the lesser offense of attempting to make a criminal threat,

we would conclude in light of the strong evidence of her guilt (discussed, ante) that she

has failed met her burden under Watson of showing a reasonable probability that she

"would have obtained a more favorable outcome had the error not occurred."

(Breverman, supra, 19 Cal.4th at p. 178, citing Watson, supra, 46 Cal.2d at p. 836, fn.

omitted.)

27
 For all of the foregoing reasons, we affirm Forrest's convictions.

IV. PROBATION CONDITIONS

Forrest next contends that conditions 6.d., 12.f., and 12.g. of her probation are

unconstitutionally vague and/or overbroad and must be either stricken or modified. We

uphold conditions 6.d. and 12.f., but we modify condition 12.g. in order to avoid

unconstitutional overbreadth.

A. Applicable Legal Principles

A trial court has broad discretion in selecting the conditions of a defendant's

probation. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) Generally, a

probation condition that regulates noncriminal conduct will be upheld if it is reasonably

related to (1) the crime of which the defendant was convicted, or (2) the goal of

preventing future criminality. (Id. at pp. 379-380.)

Although challenges to the constitutionality of probation conditions on the

grounds of vagueness and overbreadth are frequently made together, the concepts are

distinct. "[T]he underpinning of a vagueness challenge is the due process concept of 'fair

warning.'" (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.); see U.S. Const,

Amends. 5, 14; Cal. Const., art. I, § 7.) A probation condition is unconstitutionally vague

if it is not " '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.'" (Sheena

K., at p. 890.) "A probation condition should be given 'the meaning that would appear to

a reasonable, objective reader.'" (Olguin, supra, 45 Cal.4th at p. 382.) Also, the

28
probation condition should be evaluated in its context, and only reasonable specificity is

required. (People v. Lopez (1998) 66 Cal.App.4th 615, 630 (Lopez).)

In contrast, a probation condition is unconstitutionally overbroad if it imposes

limitations on the probationer's constitutional rights and it is not closely or narrowly

tailored and reasonably related to the compelling state interest in reformation and

rehabilitation. (Sheena K., supra, 40 Cal.4th at p. 890; In re Victor L. (2010) 182

Cal.App.4th 902, 910.) "The essential question in an overbreadth challenge is the

closeness of the fit between the legitimate purpose of the restriction and the burden it

imposes on the defendant's constitutional rights—bearing in mind, of course, that

perfection in such matters is impossible, and that practical necessity will justify some

infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) In an appropriate case,

a probation condition that is not "'sufficiently narrowly drawn'" may be modified and

affirmed as modified. (Lopez, supra, 66 Cal.App.4th at p. 629; see also In re E.O., supra,

188 Cal.App.4th at p. 1158.)

A defendant who did not object to a probation condition at sentencing may do so

on appeal if the appellate claim "amount[s] to a 'facial challenge'" that challenges the

condition on the ground its "phrasing or language . . . is unconstitutionally vague or

overbroad" and the determination whether the condition is constitutionally defective

"does not require scrutiny of individual facts and circumstances." (Sheena K., supra, 40

Cal.4th at pp. 885-886.)

On appeal we independently review constitutional challenges to a probation

condition. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)

29
 B. Analysis

The three probation conditions that Forrest challenges—conditions 6.d., 12.f., and

12.g.—are set forth in the completed standardized probation order form ("Order Granting

Formal Probation," hereafter the probation order) filed in this matter on October 28.

1. Condition 12.f: restriction on possessing weapons

Condition 12.f. states: "Do not knowingly own, transport, sell, or possess any

weapon, firearm, replica firearm or weapon, ammunition, or any instrument used as a

weapon." (Italics added.)

Claiming condition 12.f. is unconstitutionally vague and overbroad and must be

stricken or modified, Forrest asserts (1) the word "replica" is vague, (2) the phrase "any

instrument used as a weapon" is vague, and (3) the condition is overbroad because it

lacks an exception for temporary possession of a weapon in lawful self-defense. We

reject her facial challenges to condition 12.f.

a. "Replica"

In support of her claim that the word "replica" is unconstitutionally vague, Forrest

cites two dictionary definitions, stating that "replica" is defined (1) in the Collins English

Dictionary as "'an exact copy or reproduction, especially on a smaller scale,'" and (2) in

the Merriam-Webster Online Dictionary as "'an exact or very close copy of something.'"

Forrest contends that, based on these definitional differences, the term "replica firearm"

in condition 12.f. lacks sufficient precision to place her on notice of what conduct is

prohibited.

30
 Forrest's claim of constitutional vagueness is unavailing. The fact that one

definition requires an exact copy of an item and references smaller scale reproductions,

and the other makes no reference to size, does not render the word unconstitutionally

vague. Taken in context, the word is reasonably specific. (See Lopez, supra, 66

Cal.App.4th at pp. 629-630 [a probation condition should be evaluated in its context and

only reasonable specificity is required].) The purpose of condition 12.f. is to protect the

public from violence or threats of violence and to prevent future criminality. To

effectuate this purpose, Forrest is on fair notice she is prohibited from using or possessing

actual firearms or weapons and she is also prohibited from confronting others with

devices those individuals could reasonably perceive to be a weapon or firearm. The term

"replica firearm or weapon" adequately conveys this prohibition. (See § 417.4

[preventing drawing or exhibiting an imitation firearm in a manner that causes a

reasonable person apprehension or fear of bodily harm]; see also § 16700 [defining an

imitation firearm to include a replica of a firearm that is "so substantially similar in

coloration and overall appearance . . . as to lead a reasonable person to perceive that the

device is a firearm"].) No reasonable person would construe condition 12.f. as applying

to a small-scale object that did not look like a real weapon.

b. "[A]ny instrument used as a weapon"

Forrest next contends the use of the word "used" in the phrase "any instrument

used as a weapon" renders condition 12.f. unconstitutionally vague because it is unclear

whether the phrase prohibits (1) the possession of any instrument where she intends to

use the instrument as a weapon, or (2) the possession of any instrument which is

31
sometimes capable of being used as a weapon. She requests that condition 12.f. be

modified to state "any instrument used by the probationer as a weapon." (Italics omitted.)

We conclude there is no need to modify condition 12.f. because, again, this

condition is clearly directed at prohibiting weapon possession and, when it is read in

context, reasonable persons would understand that "any instrument used as a weapon"

refers to an item that is being used, or is intended to be used, as a weapon, and does not

refer to any object that might conceivably be used as a weapon. The phrase "used as a

weapon" on its face excludes objects that are merely capable of being used as a weapon

but are not actually being used as such. Also, because a violation of condition 12.f.

requires Forrest to have had knowledge that the object instrument is used as a weapon,

she will not be subjected to a probation violation unless she knows the instrument she

possesses is intended for use as a weapon. For example, a probationer convicted of a

violent crime would not be in violation of condition 12.f. by carrying a bat to baseball

practice, but would be in violation of that condition if she or she possessed a baseball bat

in the context being a member of a gang on the way to a gang-related confrontation.

c. Possession for self-defense

Forrest also contends condition 12.f. is unconstitutionally overbroad "to the extent

that it does not contain an exception for the temporary possession of a weapon in lawful

self-defense." She asserts that "should [s]he find [herself] in a real emergency where

[her] life is under immediate threat, [she] should not be prohibited from defending

[herself] from that threat even where doing so requires the use of a weapon or an

improvised weapon." Forrest maintains that condition 12.f. should be modified by

32
appending to the end of this probation condition the phrase "except when such possession

is justified because the firearm or weapon is used in accordance with the law of self-

defense."

We reject Forrest's claim that condition 12.f. is unconstitutionally overbroad.

When a probationer has been convicted of a violent crime, imposition of a strict condition

of probation prohibiting ownership or possession of weapons is essential to promote

public safety. Here, given the importance of clearly communicating to Forrest that she is

prohibited from owning or possessing weapons, it is reasonable to exclude from

condition 12.f. a reference to self-defense to ensure she does not believe she is permitted

to knowingly own or possess a weapon in some circumstances in anticipation of the

possible need for self-defense. We are satisfied that no reasonable law enforcement

official or court will interpret the prohibition of weapon possession to extend to a fleeting

possession of a weapon in the event, for example, that Forrest is assaulted and she

temporarily seizes an object to use as a weapon in self-defense. The omission of a

reference to self-defense does not render condition 12.f. constitutionally overbroad.

2. Condition 6.d.: restriction on possessing weapons

Condition 6.d., which is also set forth in the October 28 probation order, provides:

"THE DEFENDANT SHALL: [¶] . . . [¶] Not knowingly possess a firearm, ammunition,

or deadly weapon."

Forrest claims condition 6.d. is unconstitutional and must be stricken or modified

because "[t]his condition's lack of an exception for the temporary possession of a weapon

in lawful self-defense renders it unconstitutionally overbroad." The Attorney General

33
argues that Forrest's proposed modification of condition 6.d. is "antithetical to the

rehabilitative purposes and public safety concerns under [that condition]." We agree.

We reject Forrest's facial challenge to condition 6.d. for the reasons we explained, ante,

in rejecting her contention that condition 12.f. of her probation is unconstitutionally

overbroad to the extent it does not contain an exception for the temporary possession of a

weapon in lawful self-defense. The omission of a reference to self-defense does not

render condition 6.d constitutionally overbroad.

3. Condition 12.g.: restriction on being in the presence of weapons

Condition 12.g., as set forth in the probation order, states: "Do not remain in any

building, vehicle or in the presence of any person where you know a firearm, deadly

weapon, or ammunition exists."

Forrest contends this condition is unconstitutionally overbroad and should be

stricken or modified because (she asserts) it prohibits her "from entering state and federal

courthouses, police stations, military installations, federal and state office buildings and

any other building with armed security personnel since each of these buildings contain

armed individuals." She further contends this condition improperly impinges on her

constitutional rights of association and to access the courts.

We agree condition 12.g must be modified in order to address Forrest's well-

founded concerns. Given the widespread presence of armed security personnel in

buildings and other locales, we conclude condition 12.g. is unconstitutionally overbroad

because it unduly restricts Forrest's constitutionally guaranteed freedom of travel and

association and her right to access the courts, and because it is not narrowly tailored to

34
safeguard these fundamental rights while restricting her conduct in a manner reasonably

designed to promote her rehabilitation and to protect public safety.

In her appellant's opening brief, Forrest argued that condition 12.g should be

modified to restrict her presence at locations where weapons are illegally present.

Specifically, she proposed that condition 12.g be modified to read as follows:

"Do not remain in the presence of those you know illegally possess
firearms, deadly weapons or ammunition."

The Attorney General responded by objecting to Forrest's proposed modification,

asserting it "would allow [her] to remain in the presence of anyone who legally possesses

deadly weapons" and, thus, it "would wholly undermine the purposes underlying the

probation condition" by "allow[ing] [her], for example, to knowingly visit a stash house

stocked with .22-caliber rifles or to live in a house of armed bank robbers, so long as

[she] does not know that the weapons are illegal or otherwise unlawfully possessed." The

Attorney General proposed that, in order to remedy the unconstitutional overbreadth

while continuing to keep Forrest from knowingly having ready access to prohibited

weapons, condition 12.g should be modified to read as follows:

"Do not remain in the presence of any person whom you know
illegally possesses a firearm, deadly weapon, or ammunition. Also,
do not remain in a building, vehicle or in the presence of any person
when you knowingly have ready access to a firearm, deadly weapon,
or ammunition, regardless of whether it was lawfully possessed or
acquired."

In her reply brief Forrest does not object to the first sentence of the foregoing

modification proposed by the Attorney General, which states: "Do not remain in the

35
presence of any person whom you know illegally possesses a firearm, deadly weapon, or

ammunition." She asserts this first sentence "essentially mirrors [her] suggestion."

With respect to the second sentence of the modification proposed by the Attorney

General─which (as noted) states, "Also, do not remain in a building, vehicle or in the

presence of any person when you knowingly have ready access to a firearm, deadly

weapon, or ammunition, regardless of whether it was lawfully possessed or

acquired"─Forrest asserts she "would be happy with this second sentence if it was limited

to firearms." She argues this sentence should be limited to firearms because "[a]

probationer will have ready access to 'deadly weapons' and 'ammunition' any time she

enters either a sporting goods store or a general store such as Walmart as these items are

generally placed on store shelves and may be seen as readily accessible." Forrest

proposes the following "hybrid" modification of condition 12.g:

"Do not remain in the presence of any person whom you know
illegally possesses a firearm, deadly weapon, or ammunition. Also,
do not remain in a building, vehicle or in the presence of any person
when you knowingly have ready access to a firearm regardless of
whether it was lawfully possessed or acquired." (Italics added.)

Forrest argues that, under her proposed modification of condition 12.g, "[she]

would not be unreasonably restricted in her movements and the state's interest in

preventing [her] presence in weapon store houses or [her] living with 'armed bank

robbers' would be maintained."

We agree. Such a modification will remedy the unconstitutional overbreadth of

probation condition 12.g while safeguarding the state's interests in maintaining public

safety, preventing future criminality, and rehabilitating Forrest by deterring her from

36
knowingly having ready access to firearms. Accordingly, we shall order that condition

12.g be modified to read as follows:

"Do not remain in the presence of any person who you know
illegally possesses a firearm, deadly weapon, or ammunition. Also,
do not remain in a building, in a vehicle, or in the presence of any
person when you knowingly have ready access to a firearm,
regardless of whether it is lawfully possessed or was lawfully
acquired."

V. CORRECTION OF THE OCTOBER 28 MINUTE ORDER
AND PROBATION ORDER

Last, Forrest contends that both the October 28 minute order and the October 28

probation order must be corrected because they do not reflect the court's oral

pronouncement of sentence that she serve 365 days in local custody as a condition of her

probation. The Attorney General acknowledges the minute order and probation order

should be corrected to conform to the oral pronouncement of judgment.

We agree with the parties. The October 28 reporter's transcript shows the court

stated that Forrest was "committed to the custody of the Sheriff [for] 365 days." The

record also shows that, although both the minute order and probation order originally

reflected─correctly─that Forrest was committed to the custody of the sheriff for "365"

days, that number was erroneously crossed out and the number "372" was written in its

place.

We conclude the matter should be remanded to the superior court with directions

to correct both the October 28 minute order and the October 28 probation order to reflect

the court's oral pronouncement of sentence that she serve 365 days in local custody as a

condition of her probation.

37
 DISPOSITION

Probation condition 12.g is modified to read: "Do not remain in the presence of

any person who you know illegally possesses a firearm, deadly weapon, or ammunition.

Also, do not remain in a building, in a vehicle, or in the presence of any person when you

knowingly have ready access to a firearm, regardless of whether it is lawfully possessed

or was lawfully acquired." As so modified, the judgment is affirmed.

The matter is remanded to the superior court with directions to (1) correct

probation condition 12.g., which is set forth in the October 28, 2013 order granting

formal probation, and forward a copy of the corrected condition to the probation

authorities; and (2) correct both the October 28, 2013 minute order and the October 28,

2013 probation order to reflect the court's oral pronouncement of sentence that she serve

365 days in local custody as a condition of her probation and forward a copy of the

corrected probation order to the probation authorities.

NARES, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.

38