California Court of Appeal Apr 13, 2016 No. E062495Unpublished
Filed 4/13/16 P. v. Tapia CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E062495
v. (Super.Ct.No. FSB1302534)
DAVID MEDINA TAPIA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson,
Judge. Affirmed as modified.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G.
McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and
Respondent.
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While adjusting the seatbelt of the truck he was driving, defendant, David Medina
Tapia, swerved from his lane, striking a female pedestrian walking on an unimproved
sidewalk along the side of the road, causing serious injuries. Defendant drove on without
stopping, but neighbors identified his truck and he was subsequently arrested for hit and
In Freitas, the reviewing court held that the reporter’s transcript governed because
it was more inclusive than the clerk’s transcript insofar as the court orally added language
to the probation condition prohibiting defendant from owning, possessing or “hav[ing]
custody or” control of any firearms or ammunition. (Freitas, supra, 179 Cal.App.4th at
p. 750, fn. 2.)
In the present case, the court omitted to recite a portion of one of the conditions,
after acquiescing in defense counsel’s request to impose a lesser restitution fine.
Specifically, referring to the proposed probation order, defense counsel stated, “As to the
terms, your Honor, I would object to Term 13 on page 9, Term 15 on page 10, and I
would ask the Court to set all fines and fees at the statutory minimum. Particularly, Term
19 on page 10, I would ask the Court to set that at $300, and I would submit.”
With probation conditions, some courts have subscribed to the view that probation
conditions “‘need not be spelled out in great detail in court as long as the defendant
knows what they are; to require recital in court is unnecessary in view of the fact the
probation conditions are spelled out in detail on the probation order.’” (People v. Pirali
(2013) 217 Cal.App.4th 1341, 1346, quoting People v. Thrash (1978) 80 Cal.App.3d 898,
901–902.)
Nevertheless, it is obvious from the reporter’s transcript that the trial court and all
parties were working from the same proposed probation order which apprised defendant
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and his counsel of the administrative fee, or surcharge. The court indicated it had
discussed the matter with both counsel prior to going on the record.
At the hearing, the parties referred to the proposed probation order by page
number and condition number, and defendant sought modification of certain terms
contained in the proposed order. Condition No. 19 expressly referred to the 10 percent
administrative fee in addition to the restitution. Defendant did not object to the term
requiring payment of the surcharge or administrative fee, and he accepted probation on
the terms ordered by the court, as modified.
Reading the reporter’s transcript and the clerk’s transcript together, the trial
court’s failure to mention the administrative fee orally cannot be construed as an intent to
strike it, where all parties and the court contemplated an order consistent with the terms
contained in the proposed probation order, subject to the modifications made at counsel’s
request. The inclusion of the administrative fee was proper despite the fact the court did
not orally recite it.
4. The Probation Condition Prohibiting Possession of Materials for Making
Explosive Devices Should Be Modified.
Defendant argues that the probation condition prohibiting him from possessing or
having under his control materials to make explosive devices is unconstitutionally vague.
We agree.
Probation condition number 11 compels defendant to “Neither possess nor have
under your control any dangerous or deadly weapons or explosive devices or materials to
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make explosive devices.” We review whether a probation condition is unconstitutionally
vague using the de novo standard of review. (In re Shaun R. (2010) 188 Cal.App.4th
1129, 1143.)
The underpinning of a vagueness challenge is the due process concept of “fair
warning.” (People v. Castenada (2000) 23 Cal.4th 743, 751.) The rule of fair warning
embodies the due process concepts of preventing arbitrary law enforcement and
providing adequate notice to potential offenders. (Ibid.) To withstand a challenge of
vagueness, a probation condition must be sufficiently precise for the probationer to know
what is required of him, and for the court to determine whether the condition has been
violated. (In re Sheena K. (2007) 40 Cal.4th 875, 890.) “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.” (Id. at p. 890.)
The People argue that the condition of probation is reasonably specific because it
prohibits possession or having under defendant’s control “materials to make explosive
devices,” which prohibits him from possessing materials with which he intends to make
explosive devices. However, a scienter requirement is not so easily implied where a
defendant may knowingly but innocently possess common items that could be used to
construct explosive devices without any intention of making an explosive device. In
addition to generic tools that could be used for making explosive devices, as described in
defendant’s brief, certain household cleaning agents and products may be combined with
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explosive results, wittingly or unwittingly. Thus, a probationer could knowingly, but
innocently, possess materials that could be used to make explosive devices.
In several unpublished opinions we have concluded that the language in question
is not so clear. Therefore, the condition should be modified to read, “Neither knowingly
possess, nor knowingly have under your control, any dangerous or deadly weapons or
explosive devices or materials to make explosive devices, where the materials are
possessed with the intent to make explosive devices.”
DISPOSITION
Probation condition No. 11 should be modified as follows: “Neither knowingly
possess, nor knowingly have under your control, any dangerous or deadly weapons or
explosive devices or materials to make explosive devices, where the materials are
possessed with the intent to make explosive devices.” In all other respects, the judgment
is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
HOLLENHORST J.
McKINSTER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant's ineffective assistance of counsel claim failed due to lack of prejudice, the restitution fine was lawful, the administrative surcharge was properly imposed, and the probation condition regarding explosive materials was unconstitutionally vague and required a scienter modification.
Issues
Did trial counsel provide ineffective assistance by failing to object to a warrantless search probation condition?
Did the imposition of a $300 restitution fine violate ex post facto laws?
Was the $30 administrative surcharge on the restitution fine improperly imposed because it was omitted from the oral pronouncement?
Is the probation condition prohibiting the possession of materials to make explosive devices unconstitutionally vague?
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“The condition should be modified to read, “Neither knowingly possess, nor knowingly have under your control, any dangerous or deadly weapons or explosive devices or materials to make explosive devices, where the materials are possessed with the intent to make explosive devices.””