P. v. Rajabiy

Filed 11/14/17 P. v. Rajabiy CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for 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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
YUNUS RAJABIY,
Defendant and Appellant.
B279770
(Los Angeles County
Super. Ct. No. PA086661)
APPEAL from a judgment of the Superior Court of Los
Angeles County, David W. Stuart, Judge. Affirmed.
Kent D. Young, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Victoria B. Wilson and Kathy S. Pomeranz,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________

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Yunus Rajabiy appeals from his judgment of conviction of
misdemeanor battery. He argues the prosecution violated his
right to due process by failing to correct misleading witness
testimony, and the court erred in allowing testimony about his
arrest. He also argues the court should have instructed the jury
on the lesser included offense of simple assault, and one of his
conditions of probation is unconstitutionally overbroad. We find
no reversible error and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On the morning of June 25, 2016, Jessica Garibay was out
jogging, when she saw appellant drive past her several times in a
minivan. Appellant made “cat calls” and appeared to be
whistling at Garibay. The minivan eventually stopped ahead of
her. When Garibay reached it, appellant had his phone out of the
window, and she thought he was recording her and
masturbating. Garibay photographed the minivan’s rear license
plate with her cell phone and attempted to take a picture of
appellant’s face through the window, so she could report him.
Appellant threw a plastic milk bottle at her, opened the
minivan door forcefully, got out, and told Garibay to delete the
photo or give him her phone. In the 911 call she made from the
scene, Garibay claimed she was hit by the bottle, but at trial, she
was unsure whether the bottle or car door had hit her. At some
point, appellant started video recording the encounter on his
phone, and the video captured Garibay saying, “You just hit me.
Look, I am shaking.”1
1 The 911 call and video were played at trial, but have not
been included in the record on appeal.
1 Undesignated statutory references are to the Penal Code.

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Garibay’s phone fell on the ground, and the screen cracked.
At trial, Garibay testified appellant “smacked” the phone out of
her hand and kicked it when she tried to pick it up. However, the
responding police officer, Judith Zuniga, testified that Garibay
told her the phone fell when appellant “attempted to grab it.”
Officer Zuniga did not recall Garibay mentioning that appellant
had kicked the phone. The investigating officer, Sergeant
Timothy Kohl, testified Garibay mentioned the kicking of the
phone for the first time in an interview on the day of the
preliminary hearing in this case.
After Anthony Kemper, who lived nearby, intervened,
Garibay managed to call 911. Appellant left the scene before
police arrived, but was traced through the license plate photo and
identified by Garibay. Later that day, appellant called police to
explain he threw a bottle at someone who was taking pictures of
him. When the officer who took the call told him he may have
committed battery, appellant hung up.
On June 29, 2016, Sergeant Kohl called appellant and
warned him there was a warrant for his arrest. The officer
suggested appellant turn himself in, and appellant indicated he
might, but did not. On July 3, 2016, Officer Brandon Seibert saw
appellant’s minivan at a motel on San Fernando Road, ran the
license plate, and arrested appellant on the outstanding warrant.
Appellant originally was charged with attempted robbery
(count 1), but that count was dismissed on the second day of trial.
He was then charged with felony vandalism as to Garibay’s cell
phone (Pen. Code, § 594, subd. (a),2 count 2) and misdemeanor
battery (§ 242, count 3). The jury was instructed that the
prosecutor had elected to proceed on count 3 based on appellant’s

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“throwing a milk container” at Garibay. Appellant was acquitted
on count 2 and convicted on count 3. The court suspended
imposition of a sentence and placed appellant on probation for
three years, with terms and conditions, including that he serve
120 days in county jail, that he have no contact with Garibay and
Kemper, and that he submit his person and property, including
electronic devices, to search and seizure.
This appeal followed.
DISCUSSION
I
Appellant complains that his right to due process was
violated by the prosecutor’s failure to correct Sergeant Kohl’s
testimony that appellant did not surrender, which appellant
claims was misleading. In a related argument, he claims to have
been prejudiced by the admission of Officer Seibert’s testimony
that appellant was arrested at a motel four days after speaking
with Sergeant Kohl.
In her opening statement, the prosecutor told the jury
Sergeant Kohl was expected to testify that he told appellant to
turn himself in because there was a warrant for his arrest, and
Officer Seibert was expected to testify that appellant was
arrested at a motel seven or eight days later. During trial, the
defense moved to exclude Officer Seibert’s testimony as
irrelevant. The prosecutor argued that the circumstances of the
arrest were relevant because appellant was found in possession of
the same minivan that he had driven during his encounter with
Garibay, and because appellant was hiding out at a motel when
he knew there was a warrant for his arrest; she agreed not to

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argue the latter point if the court thought the argument was
tenuous.
Sergeant Kohl then testified to his June 29, 2016
conversation with appellant, in which he told appellant about the
warrant for his arrest and suggested that he turn himself in.
According to Sergeant Kohl, appellant said he “might come into
the station, but he never did.”
Before Officer Seibert was called, the court indicated its
tentative was to allow him to testify about the arrest and to allow
the parties to argue “whatever they want.” In response, defense
counsel argued that in the June 29, 2016 conversation with
Sergeant Kohl, appellant had agreed to surrender the following
week, but he was arrested before that time. Defense counsel
played the recorded conversation for the court, and then stated
that in the conversation Sergeant Kohl had told appellant, “If
they don’t pick you up, then come in next week.”3
The prosecutor’s take on the conversation was that
appellant did not agree to surrender the following week but
continued to negotiate throughout. The prosecutor insisted that
Officer Seibert’s testimony was necessary to authenticate
photographs of appellant’s minivan. She refused the defense’s
offer to stipulate the minivan belonged to appellant, but she
agreed not to argue that appellant was hiding out at the motel at
the time of his arrest. Defense counsel’s objection that the
testimony about appellant’s arrest was irrelevant and cumulative
was overruled.
Appellant contends that Sergeant Kohl’s testimony was
misleading because it insinuated that appellant was given a
3 The recorded conversation has not been included in the
record on appeal.

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chance “to self-surrender, and was arrested when he failed to do
so,” thus bolstering the prosecution’s “consciousness-of-guilt
theory,” whereas his recorded conversation with appellant
showed appellant was arrested “before the time for self-
surrender.”
Due process bars the prosecution from knowingly
presenting false evidence and imposes a duty to correct the
testimony of prosecution witnesses “that it knows, or should
know, is false or misleading. [Citation.]” (People v. Morrison
(2004) 34 Cal.4th 698, 716.) Nor may the prosecutor present
false or misleading argument. (Ibid.)
The problem with appellant’s argument is that the recorded
conversation on which he relies is not in the record, the attorneys
disagreed about its contents, and defense counsel’s own
restatement of what Sergeant Kohl said made clear that
appellant was told he could be arrested before the following week.
Thus, appellant’s assumption that he was given a specific time to
self-surrender is inaccurate.
Similarly, appellant argues that Officer Seibert’s testimony
should have been excluded as more prejudicial than probative
because identification was not an issue, and the fact that
appellant was arrested at a motel created the impression that he
was fleeing to avoid arrest. The trial court has “wide discretion
in assessing whether in a given case a particular piece of
evidence is relevant and whether it is more prejudicial than
probative. [Citations.]” (People v. Duff (2014) 58 Cal.4th 527,
558.)
As she had told the court, the prosecutor used Officer
Seibert to authenticate photographs of the minivan taken at the
motel and to connect the minivan to appellant who had the keys

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to that vehicle at the time of the arrest. She mentioned that the
minivan was photographed at a motel only once and then broadly
asked if appellant was located “at that area.” Appellant has not
shown that the authentication of the photographs of the minivan
was cumulative of other evidence, or that the photographs were
irrelevant. Nor has appellant shown that the single reference to
the motel was unduly prejudicial. Appellant’s assumption that it
was is based on a speculative inference—that the reason
appellant was in the motel area was because he was either
fleeing or hiding. The prejudicial effect of that inference was
alleviated by the prosecutor’s agreement not to argue the point to
the jury.
On this record, we find no evidentiary error or deprivation
of due process.
II
Appellant argues the court erred in not instructing the jury
sua sponte on the lesser included offense of simple assault
(§ 240), based on Garibay’s conflicting testimony at trial as to
whether the milk bottle hit her.
A lesser included offense is necessarily included within a
greater offense if the greater offense cannot be committed
without also committing the lesser offense. (People v. Reed (2006)
38 Cal.4th 1224, 1227.) Battery requires a touching of the victim,
however slight the touching may be. (People v. Dealba (2015) 242
Cal.App.4th 1142, 1149–1150.) Simple assault is a lesser
included offense of battery because an assault is “nothing more
than an attempted battery.” (People v. Fuller (1975) 53
Cal.App.3d 417, 421.)
“A trial court must instruct on a lesser included offense
‘“‘whenever evidence that the defendant is guilty only of the

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lesser offense is “substantial enough to merit consideration” by
the jury.’”’ [Citation.] Substantial evidence in this context is
evidence from which reasonable jurors could conclude that the
lesser offense, but not the greater, was committed. [Citation.]
When evaluating whether a lesser included offense instruction
should have been given, we view the evidence in the manner most
favorable to the defendant and apply an independent review
standard. [Citations.]” (People v. Mullendore (2014) 230
Cal.App.4th 848, 856.) We determine only the “bare legal
sufficiency,” not the weight or credibility of the evidence
supporting such an instruction. (People v. Breverman (1998) 19
Cal.4th 142, 177; People v. Marshall (1996) 13 Cal.4th 799, 847.)
At trial, Garibay initially testified that appellant threw “a
chocolate bottle at me. But I—thankfully I was able to move and
it didn’t hit me.” She immediately qualified her answer: “I
don’t—I don’t know—I don’t remember it hitting me. Or it might
have hit me. It might have been the door. [¶] I’m not too sure. It
was a while back.” Later in her testimony, she said the bottle
“hit the ground,” and when the prosecutor asked her to clarify if
she could recall being hit by the bottle, Garibay added: “I want to
say it did. [¶] I know the door didn’t hit me. I was hit by a bottle,
but I am not sure whether it was that or the door. But I am
almost most [sic] certain than not that it was the bottle.”
Still later, the prosecutor asked Garibay if she had to do
anything to avoid being hit by the bottle, and she answered:
“Yeah. I moved to the side. I saw it coming and I kind
of—” added that appellant forcefully opened the minivan’s door
seconds after he threw the bottle at her. The prosecutor then
restated her testimony: “So when he throws the plastic bottle at
you and then you dodge, he, within five seconds, opens his door? .

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. . [¶] Do you have to do anything to avoid being hit by the door?”
Garibay answered that she “moved further back.” Asked how she
knew the bottle contained chocolate milk, Garibay said that “once
he threw it on the floor, it splashed and I saw chocolate milk.”
After the 911 call was played for the jury, the prosecutor
commented that “listening to this audio, it sounds like you are
saying that the bottle did hit you.” Garibay agreed, and added:
“But I didn’t want to say for certain because I didn’t—I wasn’t for
sure, so I didn’t want to say something I wasn’t certain on.”
Viewed in appellant’s favor and without determining their
weight and credibility, some of Garibay’s statements at trial
suggested she avoided being hit by the bottle by moving to the
side. Those statements supported an instruction to the jury on
the lesser included offense of assault since a battery would not
have been completed unless Garibay was hit by the bottle.
But even assuming that the failure to instruct the jury on
simple assault was error, that error “is subject to harmless error
analysis under People v. Watson (1956) 46 Cal.2d 818, 837,
and . . . evidence sufficient to warrant an instruction on a lesser
included offense does not necessarily amount to evidence
sufficient to create a reasonable probability of a different outcome
had the instruction been given. [Citations.]” (People v. Banks
(2014) 59 Cal.4th 1113, 1161, overruled on another ground in
People v. Scott (2014) 61 Cal.4th 363, 391, fn. 3; see also People v.
Breverman, supra, 19 Cal.4th at p. 165.) “Appellate review under
Watson . . . focuses not on what a reasonable jury could do, but
what such a jury is likely to have done in the absence of the error
under consideration. In making that evaluation, an appellate
court may consider, among other things, whether the evidence
supporting the existing judgment is so relatively strong, and the

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evidence supporting a different outcome is so comparatively
weak, that there is no reasonable probability the error of which
the defendant complains affected the result.” (Breverman, at
p. 177.)
Appellant argues that Garibay’s own testimony at trial is
substantial evidence that the bottle did not hit her. That,
however, is not the standard under People v. Watson, supra, 46
Cal.2d 818. Evidence “substantial enough to warrant lesser
offense instructions in the first place” is not necessarily “strong
enough to affect the outcome had the instructions not been
omitted.” (People v. Breverman, supra, 19 Cal.4th at p. 177.) The
totality of Garibay’s trial testimony indicates she could not
remember exactly what had hit her—whether the bottle or the
car door, but after hearing the recorded 911 call she confirmed it
was the bottle. The video taken by appellant and the 911 call,
both nearly contemporaneous with the crime, indicated (in the
prosecutor’s restatement of their substance on the record) that
Garibay was hit, and that she was hit by the bottle. Thus,
despite Garibay’s confusion at trial, it was not reasonably
probable that the jury would have found appellant guilty only of
simple assault.
Appellant’s argument that both the court and the
prosecutor misled the jury into concluding that battery could be
completed by throwing a bottle at Garibay without actually
touching her is not persuasive. The court’s instructions must be
evaluated as a whole. (People v. Holt (1997) 15 Cal.4th 619, 677.)
Even if the unanimity instruction was incomplete, the battery
instruction included the touching element. Similarly, although in
closing the prosecutor skipped over that element, she clearly
identified it in rebuttal.

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That the jury returned a split verdict on counts 2 and 3 is
not dispositive, and People v. Mullendore, supra, 230 Cal.App.4th
848, on which appellant relies, is distinguishable. The defendant
in that case shattered a car window with his backpack after the
driver honked at him for standing in the street. (Id. at pp. 851–
852.) The defendant was charged with assault by means of force
likely to cause great bodily injury, but the jury convicted him of
the lesser included offense of misdemeanor simple assault. The
jury was not instructed on the lesser included misdemeanor
offense of throwing a substance at a vehicle. The defendant was
convicted, as charged, of throwing a substance at a vehicle that is
capable of causing serious bodily harm and with intent to cause
great bodily injury, a felony. (Id. at p. 853; see Veh. Code,
§ 23110, subds. (a) & (b).) It was in that context that the
appellate court noted: “Because the jury had doubts concerning
defendant’s use of (or ability to apply) force likely to produce
great bodily injury . . . , there is a reasonable probability it also
had doubts about whether defendant had the intent to inflict
such injury.” (Mullendore, at p. 857.)
Here, by contrast, counts 2 and 3 were based on different
alleged conduct: hitting Garibay with a bottle and breaking her
phone. That appellant was acquitted of the vandalism charge as
to the phone does not mean the jury had doubts about the battery
charge as to the bottle. If anything, the split verdict indicates the
jury consistently credited Garibay’s statements at the scene of
the crime, where she mentioned being hit by the bottle but did
not mention that appellant slapped the phone out of her hand or
kicked it, over her inconsistent statements at trial.
Based on the entire record, appellant was not prejudiced by
the lack of a simple assault instruction.

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III
Appellant challenges the condition that he “submit [his]
person and property to search and seizure at any time of the day
or night by any peace officer, including electronic devices” as
facially overbroad.4 He argues that the condition must as a
matter of law be expressly limited to searches for “material
prohibited by law” or “evidence of illegal conduct.”
Since appellant did not object to the search condition in the
trial court, on appeal he may make only a facial overbreadth
challenge that raises pure issues of law and does not require
consideration of the facts of his particular case. (In re Sheena K.
(2007) 40 Cal.4th 875, 889.) We review such a challenge de novo.
(In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
Appellant relies largely on People v. Appleton (2016) 245
Cal.App.4th 717, a case decided after Riley v. California (2014)
___ U.S. ___, 134 S.Ct. 2473 invalidated warrantless cell phone
searches. Even though Riley was not a probation search case, the
court in Appleton, following Riley’s reasoning regarding the
4 The minute order states this condition differently,
requiring appellant to submit his “person and property to search
and seizure at any time of the day or night, by any probation
officer or other peace officer, with or without a warrant, probable
cause or reasonable suspicion.” Ordinarily, where there is a
discrepancy between the reporter’s transcript and the clerk’s
minute order, “[t]he record of the oral pronouncement of the court
controls over the clerk’s minute order. . . . [Citations.]” (People v.
Farell (2002) 28 Cal.4th 381, 384, fn. 2 [relying on oral
pronouncement of probation conditions].) The minute order must
be amended to conform to the court’s oral pronouncement. (See
People v. Zackery (2007) 147 Cal.App.4th 380, 385 [clerk’s
minutes must accurately reflect what occurred at hearing].)

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wealth of personal information that can be stored on electronic
devices, rejected an electronics-search condition as overbroad
because it allowed the search of “vast amounts of personal
information unrelated to defendant’s criminal conduct or his
potential future criminality.” (Appleton, at p. 727.) Currently,
there is a split of authority regarding the validity of broad
electronics-search conditions of probation, and the issue is
pending before the California Supreme Court.5
The problem with appellant’s reliance on cases that have
invalidated electronics-search conditions of probation is that the
courts in those cases were presented with preserved as-applied
challenges to such conditions, requiring an examination of “the
facts and circumstances in each case.” (See, e.g., People v.
Bryant, supra, 10 Cal.App.5th at p. 402, People v. Appleton,
supra, 245 Cal.App.4th at pp. 722–723; but see In re P.O. (2016)
246 Cal.App.4th 288, 297 [exercising discretion to reach forfeited
as-applied challenge].) That is not our case.
Appellant’s additional argument that the search condition
must be based on reasonable suspicion of illegal conduct also is
5 See People v. Trujillo (2017) 15 Cal.App.5th 574, fn. 1,
citing In re Ricardo P. (2015) 241 Cal.App.4th 676, review
granted Feb. 17, 2016, S230923; In re Patrick F. (2015) 242
Cal.App.4th 104, review granted Feb. 17, 2016, S231428; In re
Alejandro R. (2015) 243 Cal.App.4th 556, review granted Mar. 9,
2016, S232240; In re Mark C. (2016) 244 Cal.App.4th 520, review
granted Apr. 13, 2016, S232849; In re A.S. (2016) 245
Cal.App.4th 758, review granted May 25, 2016, S233932; In re
J.E. (2016) 1 Cal.App.5th 795, review granted Oct. 12, 2016,
S236628; People v. Nachbar (2016) 3 Cal.App.5th 1122, review
granted Dec. 14, 2016, S238210; People v. Bryant (2017) 10
Cal.App.5th 396, review granted June 28, 2017, S241937.

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not persuasive. Assuming the condition imposed in this case
permits suspicionless searches, such searches of probationers are
allowed under California law. “When involuntary search
conditions are properly imposed, reasonable suspicion is no
longer a prerequisite to conducting a search of the subject’s
person or property. Such a search is reasonable within the
meaning of the Fourth Amendment as long as it is not arbitrary,
capricious or harassing.” (People v. Reyes (1998) 19 Cal.4th 743,
752.) “The purpose of an unexpected, unprovoked search of
defendant is to ascertain whether he is complying with his terms
of probation; to determine not only whether he disobeys the law,
but also whether he obeys the law.” (People v. Kern (1968) 264
Cal.App.2d 962, 965, quoted with approval in Reyes, at p. 752.)
United States v. Knights (2001) 534 U.S. 112, on which
appellant relies in reply, does not require that search conditions
be expressly limited to searches on reasonable suspicion of illegal
conduct. The Knights court reviewed a search pursuant to a
probation condition that, like the condition included in the
minute order in this case, expressly allowed warrantless and
suspicionless searches. (Id. at p. 114.) The court found the
search valid because it was supported by reasonable suspicion
and declined to consider the constitutionality of the suspicionless
searches permitted by the condition. (Id. at pp. 120, 121 & fn. 6.)
Since Knights did not review the constitutionality of a
suspicionless search condition, it does not stand for the
proposition that such a condition is unconstitutional. Nor did
Knights consider whether probationers completely waive their
Fourth Amendment rights when consenting to warrantless
search conditions, as the California Supreme Court has held.
(See Knights, at p. 118; People v. Woods (1999) 21 Cal.4th 668,

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674–675.) Cases are not authority for propositions not
considered. (People v. Avila (2006) 38 Cal.4th 491, 566.)
We conclude that the search condition imposed by the court
is not unconstitutionally overbroad on its face.
DISPOSITION
The judgment is affirmed. The minute order shall be
amended to conform to the trial court’s oral pronouncement of the
search and seizure probation condition.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
MANELLA, J.

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