Opinion
F083507
03-20-2023
THE PEOPLE, Plaintiff and Respondent, v. STEPHANIE LEMOS, Defendant and Appellant.
Nancy Wechsler, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. No. 20CR-05461-RF Steven K. Slocum, Judge.
Nancy Wechsler, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, Acting P. J.
INTRODUCTION
Defendant Stephanie Lemos was arrested after police located a stolen vehicle in the garage of her home. Following a trial by jury, defendant was convicted of concealing a stolen vehicle (Pen. Code, § 496d; count 1), and providing false information to a peace officer (Veh. Code, § 31; count 3), but acquitted of being an accessory after the fact to a felony (§ 32; count 2). The trial court suspended imposition of sentence and placed defendant on probation for two years. She was ordered to serve 180 days in jail, suspended with the exception of 45 days.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant claims her conviction for concealing a stolen vehicle is not supported by substantial evidence that she knew it was stolen. She also claims the trial court erred under federal and state law by failing to instruct the jury sua sponte on, one, the defense of innocent intent, and, two, that to convict her of providing false information to a peace officer, her misstatement had to be material. Finally, defendant claims that the trial court failed to expressly impose the terms of probation set forth in the probation order; the conditions relating to associating with known felons or gang members, possession of marijuana, and excessive use of intoxicating beverages must be stricken as unconstitutionally vague or overbroad; and the probation order and minute order contain errors requiring correction.
The People maintain that the evidence is sufficient to support defendant's conviction for concealing a stolen vehicle, and that the defense of innocent intent did not apply. They concede the court erred in failing to instruct the jury on the element of materiality regarding providing false information to a peace officer, but contend the error was harmless beyond a reasonable doubt. The People do not address the claim that the trial court failed to expressly impose the conditions of probation. However, they contend the conditions pertaining to association with felons or gang members and possession of marijuana need not be stricken because the former includes an express knowledge requirement and the latter an implicit knowledge requirement, and they concede the condition prohibiting excessive use of intoxicating beverages should be stricken because the term excessive is not sufficiently precise. Finally, the People concede the minute order requires correction, but contend the probation order does not.
We reject defendant's substantial evidence challenge and find no error in the absence of an instruction on innocent intent on count 1, and we conclude that omission of the materiality element on count 3 was harmless beyond a reasonable doubt. With respect to the probation conditions, the probation order, and the minute order from the sentencing hearing, we remand this matter to the trial court to strike or modify probation condition 43, and to strike or correct multiple errors in the probation order and minute order as set forth in part IV. of the Discussion.
FACTUAL SUMMARY
I. Prosecution Case
When Harold V. woke up the morning of July 24, 2020, his gray 2014 Dodge Challenger, which he had purchased within the prior year for between $20,000 and $21,000, was gone. The car had been parked on the street in front of his house in Manteca, but he inadvertently left it unlocked with the keys inside. Surveillance camera footage showed a person in a hoodie approaching the car around midnight. Due to the darkness and low quality of the footage, it was not possible to tell if the person was male or female.
Harold called the Manteca Police Department and reported the theft. He testified that no one had permission to take the car, and he did not know defendant or Christina C.
Harold's car was fitted with a LoJack, an integrated tracking device which, when activated by the company, transmits a signal that can be picked up by law enforcement vehicles equipped with a receiver. The Merced Police Department had several vehicles with receivers and on July 25, 2020, at approximately 7:30 a.m., police officers tracked the LoJack signal for Harold's car to one of two houses on a residential street in Merced.
Sergeant Pintabona knocked on the door of the house where the signal was the strongest and defendant answered. Pintabona identified himself as a police officer, explained to defendant why he was there, described the vehicle they were looking for, and asked her if she had seen it. She answered no, but she appeared immediately nervous to Pintabona. Her voice cracked and she stuttered some, suggesting to him she likely had some knowledge of the car. Pintabona told her again they received a stolen vehicle notification for a vehicle that was likely on her property, asked her if she had seen it, and asked if it was on her property or in her garage. She again answered no.
The neighbor's house had been ruled out by Officer Benavidez, and Pintabona "implored" defendant, stating there was a "likelihood, or a high likely belief" the vehicle was on her property based on signal strength. Defendant again denied any knowledge of the vehicle, but asked them if they could come back later. Pintabona told her that made him uneasy because they did not want the vehicle driven away and if they returned, it would likely be with a search warrant.
Pintabona explained to the jury that he questioned defendant about the car rather than telling her there was a stolen car on her property because that was his style and he did not necessarily believe she stole the vehicle or that she knew it was stolen. He told defendant they just wanted to recover the car, but she asked them to come back later.
Pintabona left two officers stationed on the street and returned to the police department to author a search warrant application. He returned with a warrant approximately three hours later. Defendant was cooperative and allowed officers inside to search. Officers located the stolen car inside defendant's garage, undamaged. Officers did not find the keys.
After Benavidez advised defendant of her rights, she provided a statement to him. She said her cousin, Christina C., had called and asked if she would store the car while Christina went to the lake. She said yes and Christina had arrived approximately 24 hours earlier with three other people and two vehicles, one of which was the Challenger. When asked why she did not tell police about the car when they first came to the house, defendant said she wanted to contact Christina and have Christina call them or resolve the issue because she did not want to get involved.
Benavidez testified that after police left the first time, defendant called Christina around 8:00 a.m. to tell her to call police or clear things up. Defendant provided him with a telephone number she said belonged to Christina.
II. Defense Case
Defendant testified that on July 23, 2020, she was at home with her son and his friend. Her cousin, Christina, called around 5:00 or 6:00 p.m. Christina asked if it was okay to drop her boyfriend's brother's car off there while they went to the lake house, which belonged to Christina's parents. Defendant testified that although she no longer spoke to Christina due to this incident, at the time, they were very close, like sisters. There was no street parking at the lake house and the driveway space was taken up by a boat, jet skis, and other things, so Christina's request did not strike defendant as strange or suspicious and she agreed they could leave the car at her house.
Defendant thought the group was on its way because she heard road noise over the phone, but the group ended up not arriving until sometime between midnight and 2:00 a.m. Christina was driving her Suburban with a family friend, Sherry O., inside. Christina's boyfriend, Michael, was driving the Challenger with a male passenger defendant did not know. There was only room to fit one vehicle in defendant's garage and she had left her truck out earlier because she did not want it blocked inside the garage by the car in the driveway. Michael drove the car into the garage while defendant visited with Sherry, and then the group left.
Defendant denied having any knowledge that the Challenger was stolen until being informed by police, and she testified that Christina knew defendant would not have agreed they could drop the car off if she knew it was stolen. Defendant acknowledged becoming aware the car was stolen when police knocked on her door and told her, and she acknowledged that when Pintabona described the vehicle to her, she knew he was referring to the car in her garage. She also acknowledged she was told the LoJack pinged either at her house or her neighbor's house and police had already checked with her neighbor. Defendant testified that she asked police to come back later because she wanted to talk to Christina. She denied she was covering for Christina, but said she was alone with her son, she did not have any family nearby and did not know what was going to happen, and she wanted Christina to handle things because it was not her problem.
After police left, defendant called Christina and told her to deal with the situation, but Christina would not do so. Defendant knew police would be back and when they returned, she cooperated. After police located the car, defendant provided Christina's name and phone number. She also provided Michael's name, although she did not know his last name at the time.
III. Rebuttal
Pintabona testified that when they returned with the warrant, defendant did not tell them a Michael M. was driving the car. He was supervising and did not take her statement personally, but said that if she had provided Michael's name, they would have investigated the link.
DISCUSSION
I. Substantial Evidence Claim A. Receiving or Concealing a Stolen Vehicle
Section 496d proscribes, in relevant part, receiving or concealing a stolen motor vehicle. (Id., subd. (a).) The prosecutor is required to prove the following elements beyond a reasonable doubt: "(1) the property was stolen; (2) the defendant knew the property was stolen (hereafter the knowledge element); and, (3) the defendant had possession of the stolen property. (People v. Land (1994) 30 Cal.App.4th 220, 223, citing People v. Kunkin (1973) 9 Cal.3d 245, 249.)" (People v. Russell (2006) 144 Cal.App.4th 1415, 1425, disapproved on another ground by People v. Covarrubias (2016) 1 Cal.5th 838, 874, fn. 14; accord, People v. Rodriguez (1986) 177 Cal.App.3d 174, 179 ["[A] necessary element of the offense of receiving stolen property is actual knowledge of the stolen character of the property."].)
Defendant claims that her conviction for concealing a stolen vehicle must be reversed because there is not substantial evidence that she knew the vehicle was stolen, and "[n]either the denial of the car's presence nor the delay of three hours negates the existence of [her] innocent intentions." We find no merit to the claim. Given defendant's denial to police that she had seen the car or that it was on her property, after becoming aware it was stolen and despite knowing it was in her garage, substantial evidence supports her conviction for concealing stolen property.
B. Standard of Review
"The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense" (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio)). On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) "The record must disclose substantial evidence to support the verdict-i.e., evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Zamudio, supra, at p. 357.)
"In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Zamudio, supra, 43 Cal.4th at p. 357.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (People v. Nguyen, supra, 61 Cal.4th at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict" (Zamudio, supra, at p. 357), but "speculation, supposition and suspicion are patently insufficient to support an inference of fact" (People v. Franklin (2016) 248 Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Xiong (2013) 215 Cal.App.4th 1259, 1268).
C. Analysis
There is no evidence that defendant was involved with stealing the Challenger or that she knew it was stolen when it was dropped off at her house. However, there is no dispute that approximately 24 hours later, Pintabona knocked on defendant's door, identified himself, informed her that police had tracked a stolen vehicle to her residence via a LoJack signal, and described the vehicle to her. Defendant testified that she knew police were looking for the car Christina had dropped off at her house and that the car was inside her garage. Nevertheless, she told police she had not seen the car and she asked them to come back, which they did three hours later with a warrant in hand and located the car in her garage.
However sincere defendant's explanation was that she simply wanted a chance to contact Christina so that Christina could handle the situation, once defendant became aware that the car in her garage was stolen and she lied to police about having seen the car and the car's presence on her property, the elements for the crime of concealing stolen property were met. (§ 496d, subd. (a); People v. Russell, supra, 144 Cal.App.4th at p. 1425.) Defendant's conviction for violating section 496d, subdivision (a), is supported by substantial evidence that the Challenger was stolen, that defendant became aware that it was stolen, and she nevertheless thereafter concealed it from police. We reject her contrary claim.
II. Instructional Error Claims A. Standard of Review
We review allegations of instructional error de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) "In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case." (People v. Martinez (2010) 47 Cal.4th 911, 953.) "[I]nstructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury." (People v. Holt (1997) 15 Cal.4th 619, 677; accord, People v. Thomas (2011) 52 Cal.4th 336, 356.)
B. Count 1: Affirmative Defense of Innocent Intent
Defendant argues that the record reflects she was relying on the defense of innocent intent and the trial court erred when it failed to instruct the jury sua sponte on that defense. We find no merit to defendant's claim that she was entitled to an instruction on innocent intent.
The pattern instruction for the defense of innocent intent, CALCRIM No. 1751, provides in full: "The defendant is not guilty of receiving (stolen/extorted) property if (he/she) intended to (return the property to its owner/ [or] deliver the property to law enforcement) when (he/she) (bought/received/concealed/withheld) the property. "If you have a reasonable doubt about whether the defendant intended to (return the property to its owner/ [or] deliver the property to law enforcement) when (he/she) (bought/received/concealed/withheld) the property, you must find (him/her) not guilty of receiving (stolen/extorted) property. "[This defense does not apply if the defendant decided to (return the property to its owner/ [or] deliver the property to law enforcement) only after (he/she) wrongfully (bought/received/concealed/withheld) the property.] [The defense [also] does not apply if the defendant intended to (return the property to its owner/ [or] deliver the property to law enforcement) when (he/she) (bought/received/concealed/withheld) it, but later decided to (sell/conceal/withhold) the property.]"
The trial court's duty to instruct sua sponte on general principles of law relevant to the issues raised "extends to defenses 'if it appears ... the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.'" (People v. Brooks (2017) 3 Cal.5th 1, 73.) With respect to stolen property, "the mere receipt of stolen goods with knowledge that they have been stolen is not itself a crime if the property was received with intent to restore it to the owner without reward or with any other innocent intent [citation]. The critical factor is the defendant's intent at the time he [or she] receives or initially conceals the stolen property from the owner. The intent to restore must exist at the moment the stolen property is accepted by the receiver if he [or she] is to be acquitted. If the defendant received or concealed stolen property with general criminal intent to aid the thief, or to deprive the owner of possession, or renders more difficult a discovery by the owner, or to collect a reward, he possesses the requisite wrongful intent, and it is no defense that he subsequently intended to return the stolen property to the owner [citations]." (People v. Wielograf (1980) 101 Cal.App.3d 488, 494; accord, People v. Reyes (1997) 52 Cal.App.4th 975, 985; People v. Osborne (1978) 77 Cal.App.3d 472, 476.)
There is no dispute that once police knocked on defendant's door and explained to her what they were looking for and why they were at her house, she was aware that the vehicle in her garage had been stolen and police were seeking to recover it. Defendant responded by lying that she had not seen the vehicle and that it was not on her property. After police gave her several opportunities to tell the truth, without success, and left, defendant called Christina. Defendant testified that Christina would not help, and she did not thereafter reach out to police despite two officers being stationed outside. Instead, she said nothing about the car until officers returned three hours later with a search warrant and located it in her garage. Under these circumstances, the defense of innocent intent did not apply, and the trial court did not err by failing to instruct the jury on it. In the absence of any error, we do not reach defendant's claim that the omission was prejudicial under federal and state law.
In her reply, defendant points out that "an individual's refusal to consent to a warrantless entry . itself cannot be a crime nor can it be evidence of a crime." (People v. Keener (1983) 148 Cal.App.3d73, 78-79; accord, People v. Wood (2002) 103 Cal.App.4th 803, 808-809.) The facts of this case do not implicate any alleged infringement on her right to refuse warrantless entry, however, and she does not advance a contrary claim.
C. Count 3: Materiality Element
Vehicle Code section 31 provides, "No person shall give, either orally or in writing, information to a peace officer while in the performance of his duties under the provisions of this code when such person knows that the information is false." The trial court instructed the jury on the charge, as follows:
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. ... Pintabona was a peace officer lawfully performing or attempting to perform his duties as a peace officer;
"2. The defendant willfully gave information to . Pintabona, knowing that the information was false;
"AND
"3. When the defendant acted, she knew, or reasonably should have known, that . Pintabona was a peace officer performing or attempting to perform his duties.
"Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
"A person who is employed as a police officer by the Merced Police Department is a peace officer.
"The duties of a peace officer include the investigation of auto theft."
The parties agree that Vehicle Code section 31 "runs afoul of due process principles unless it is read to include the element of materiality" (People v. Morera-Munoz (2016) 5 Cal.App.5th 838, 856 (Morera-Munoz)), and that the trial court erred in failing to instruct the jury on this element. They disagree on whether the error was prejudicial, however, and defendant contends she is entitled to reversal on count 3 because the prosecutor failed to prove the element of materiality beyond a reasonable doubt.
"All criminal defendants have the right to 'a jury determination that the defendant is guilty of every element of the crime with which he [or she] is charged, beyond a reasonable doubt'" (People v. Merritt (2017) 2 Cal.5th 819, 824, quoting United States v. Gaudin (1995) 515 U.S. 506, 510), and, therefore, "[t]he trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense" (Merritt, supra, at p. 824, citing People v. Mil (2012) 53 Cal.4th 400, 409). Unless the error "'"vitiat[es] all the jury's findings"'" (Merritt, supra, at p. 822, quoting Neder v. United States (1999) 527 U.S. 1, 11), we assess the error for prejudice under Chapman, which requires a determination "whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error" (Merritt, supra, at p. 831, citing Neder v. United States, supra, at p. 18; accord, People v. Gonzalez (2012) 54 Cal.4th 643, 663.) "[I]n order to conclude that an instructional error '"did not contribute to the verdict"' within the meaning of Chapman [citation] we must '"find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record"' [citations]." (People v. Brooks, supra, 3 Cal.5th at p. 70.)
Chapman v. California (1967) 386 U.S. 18.
Vehicle Code section 31 "prohibits deceit only as to a material fact pertinent to an investigatory matter undertaken by a peace officer pursuant to the Vehicle Code." (Morera-Munoz, supra, 5 Cal.App.5th at p. 857.) "Since peace officers receive a great deal of information in the course of their duties, without a materiality requirement, Vehicle Code section 31 would lack the '"necessary connection between the prohibited false information and [any] law enforcement resources ... used to disprove it."'" (People v. Shah (2019) 38 Cal.App.5th 813, 818, quoting Morera-Munoz, supra, at p. 856.)
Defendant argues that "[her] misstatement was immaterial because it did not have the potential to influence a reasonable officer that the stolen car was not located at her property," and, therefore, omission of the element from the jury instruction was prejudicial. To the contrary, however, defendant's knowledge of the stolen vehicle and its presence in her garage were clearly and directly material to Pintabona's investigation into the vehicle's theft. Further, there is no dispute that defendant lied to Pintabona when she denied having seen the vehicle and denied it was on her property, which resulted in two officers remaining stationed near defendant's house for three hours while Pintabona returned to the police department to author and obtain a search warrant. Under these circumstances, the failure to instruct the jury on the element of materiality of defendant's statement was clearly harmless beyond a reasonable doubt.
III. Probation Conditions A. Imposition of Conditions
Next, defendant advances several challenges to her conditions of probation. First, defendant argues that the trial court did not expressly pronounce the probation terms, but she concedes the court appears to have incorporated the conditions included in the probation order. The People do not address this contention.
"It is well settled that courts may not delegate the exercise of their discretion to probation officers." (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372; accord, People v. Leon (2010) 181 Cal.App.4th 943, 953-954; People v. Cervantes (1984) 154 Cal.App.3d 353, 356-357.) "Probation officers have wide discretion to enforce court -ordered conditions, and directives to the probationer will not require prior court approval if they are reasonably related to previously imposed terms" (In re Pedro Q., supra, at p. 1373), but probation officers "may not create conditions not expressly authorized by the court" (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1358; accord, People v. Leon, supra, at p. 954; People v. Cervantes, supra, at pp. 356-357).
"On appeal, we presume that a judgment or order of the trial court is correct, '"[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown."'" (People v. Giordano (2007) 42 Cal.4th 644, 666.) The moving party bears the burden of demonstrating error on appeal. (People v. Gamache (2010) 48 Cal.4th 347, 378; People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523; People v. Clifton (1969) 270 Cal.App.2d 860, 862.)
Further, "[i]t is presumed that official duty has been regularly performed" (Evid. Code, § 664), and here, the sentencing hearing record reflects that the trial court and the parties had the formal terms of probation set forth in an order that was included with the probation report. The trial court invited any comments on the terms and defense counsel objected to two conditions, flash incarceration and the requirement defendant seek substance abuse, mental health, and anger management counseling. The trial court struck both conditions. Under these circumstances, where the record reflects the court and the parties had the operative probation order signed by the judge, defendant fails to demonstrate the arguable existence of any error with respect to imposition or improper delegation of the probation conditions.
B. Constitutional Challenge to Conditions 10, 20, and 43 1. Background
Second, defendant challenges the following three probations conditions as unconstitutionally vague or overbroad:
Defendant did not object to these probation conditions and, ordinarily, the failure to object results in forfeiture of the claim. (In re Sheena K. (2007) 40 Cal.4th 875, 881-882 (Sheena K.); People v. Welch (1993) 5 Cal.4th 228, 237.) However, the forfeiture doctrine does not apply where, as here, the defendant's claim that the conditions are unconstitutionally vague or overbroad raises a pure question of law. (Sheena K., supra, at p. 889.)
Condition "10 Have no contact of any type with known felons, exfelons, parolees, probationers or gang members, during the period of probation without prior permission of the probation officer."
Condition "20 Defendant shall not possess more than 28.5 grams of marijuana, marijuana infused edibles or 8 grams of concentrated cannabis, nor shall defendant have under his/her custody or control more than six marijuana plants, unless permission to do so has been requested from, and been specifically granted by, the sentencing court as described in [Health and Safety Code] Section 11362.795 .... If approved, defendant shall obtain an identification card from the Merced County Public Health Department per [Health and Safety Code] Section 11362.71 .. Defendant shall not be a marijuana caregiver."
Condition "43 Abstain from the excessive use of intoxicating beverages."
Defendant claims that conditions 10 and 43 are "not sufficiently precise for [her] to know what is required of her," she requests condition 10 be modified to include a knowledge requirement, and she requests condition 43 be stricken. She claims condition 20 is impermissibly "vague or overbroad because it does not include a knowledge requirement," and she requests the condition be stricken. The People concede condition 43 should be stricken, but argue that condition 10 includes an express knowledge requirement and condition 20 includes an implicit knowledge requirement.
2. Analysis
"[T]rial courts [have] broad discretion to determine whether to grant an eligible defendant probation, and if so, what terms of probation will promote rehabilitation and protect public safety." (People v. Hall (2017) 2 Cal.5th 494, 498 (Hall), citing § 1203.1 et seq. & People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) "A probation condition is valid under the statutory scheme if it relates to the crime for which the defendant was convicted, relates to other criminal conduct, or requires or forbids conduct that is reasonably related to future criminality" (Hall, supra, at p. 498), and "[r]evocation of probation typically requires proof that the probation violation was willful" (ibid.).
"To withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition" (Hall, supra, 2 Cal.5th at p. 500), and "'[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'" (In re Ricardo P. (2019) 7 Cal.5th 1113, 1118, quoting Sheena K., supra, 40 Cal.4th at p. 890). "'A probation condition should be given "the meaning that would appear to a reasonable, objective reader."'" (In re D.N. (2022) 14 Cal.5th 202, 211, quoting People v. Olguin (2008) 45 Cal.4th 375, 382.)
Like most criminal statutes, "probation conditions [are] generally presumed to require some form of willfulness, unless excluded '"'expressly or by necessary implication.'"'" (Hall, supra, 2 Cal.5th at p. 502.) "The mere fact that a statute must be interpreted to determine the applicable mental state does not render a criminal statute-or a probation condition-unconstitutionally vague. [Citations.] So long as the requisite scienter is readily discernible, its omission from the text of the statute or probation condition poses little risk of 'trap[ping] the innocent.'" (Id. at p. 501.)
Defendant is not entitled to "'absolute clarity' in the text of the condition itself, without the need to rely on 'a judicial construction.'" (Hall, supra, 2 Cal.5th at p. 503.) "[T]he vagueness doctrine demands '"no more than a reasonable degree of certainty."'" (Ibid.) Condition 10, which expressly prohibits association with known felons, ex-felons, parolees, probationers or gang members is sufficiently clear to withstand defendant's constitutional challenge on vagueness grounds. (Ibid.) Condition 20, which prohibits the possession of marijuana, marijuana-infused edibles, concentrated cannabis, and marijuana plants above a specified minimum, absent permission, is also sufficiently clear. (Id. at p. 502 ["case law has already made clear that knowledge of the contraband's presence and of its restricted nature is implicit in probation conditions restricting ... narcotics, regardless of any minor variations in the wording of those conditions"].)
The People concede condition 43, which prohibits excessive use of intoxicating beverages, is not sufficiently clear to afford defendant notice of what is required of her, and they do not object to having the condition stricken. We accept the concession and shall remand this matter to the trial court with directions to either strike or modify the condition. (§ 1203.3, subd. (a).)
Defendant does not challenge the condition on any other ground but, as previously stated, probation conditions must "relate[] to the crime for which the defendant was convicted, relate[] to other criminal conduct, or require[] or forbid[] conduct that is reasonably related to future criminality." (Hall, supra, 2 Cal.5th at p. 498, citing People v. Lent (1975) 15 Cal.3d 481, 486, superseded on another ground as recognized by People v. Moran (2016) 1 Cal.5th 398, 403, fn. 6.)
IV. Errors in Probation Order and Minute Order A. Order Reserving Victim Restitution
Victims have a constitutionally protected right to restitution (People v. Pierce (2015) 234 Cal.App.4th 1334, 1337-1338 [Cal. Const. art. I, § 28, subd. (b)(13)(B)]) and, as a general matter, a trial court may not "stray from the statutory mandate of 'full restitution'" (Pierce, supra, at p. 1338, quoting § 1202.4, subd. (f)). Section 1202.4, subdivision (f), provides, in relevant part, that "[i]f the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court." A trial court's restitution order is reviewed for abuse of discretion (People v. Woods (2008) 161 Cal.App.4th 1045, 1048-1049, citing People v. Giordano, supra, 42 Cal.4th at p. 663), and "[a] restitution order that is based on a demonstrable error of law constitutes an abuse of the trial court's discretion" (People v. Woods, supra, at p. 1049, citing People v. Jennings (2005) 128 Cal.App.4th 42, 49).
In this case, the trial court noted it did not appear victim restitution was going to be an issue, but ordered it reserved in accordance with section 1202.4, subdivision (f). Defendant claims that because Harold testified there was no damage to his vehicle and he told the probation officer he was not seeking restitution, the court's restitution order was unauthorized and should be stricken.
The People argue that defendant forfeited her challenge to the reservation of restitution by failing to object. Because defendant claims the order was unauthorized as a matter of law, rather than an abuse of discretion based on factual determinations, we will consider the argument on its merits. (Sheena K., supra, 40 Cal.4th at p. 887; People v. Scarbrough (2019) 40 Cal.App.5th 550, 552; People v. Slattery (2008) 167 Cal.App.4th 1091, 1095.)
As previously stated, "it is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. (See, e.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see generally 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 355, p. 409 [citing cases].) 'This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' (9 Witkin, supra, § 355, at p. 409; see Cal. Const., art. VI, § 13.) 'In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court. "[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented."'" (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.)
An award of victim restitution appears unlikely given the record, as defendant points out, but in the event that defendant or the prosecutor requests restitution (People v. Selivanov (2016) 5 Cal.App.5th 726, 785 ["crime victim need not personally act on his or her own behalf"]), defendant's rights will be protected through notice and an opportunity to be heard (People v. Thygesen (1999) 69 Cal.App.4th 988, 993). Here, the court did not order restitution be paid to Harold, in any amount, and instead merely reserved the issue. Although defendant argues the court's restitution order is unauthorized, she fails to identify any error with the order or any authority entitling her to have the order reversed or vacated simply because restitution has not been, and appears unlikely to be, sought. (Jameson v. Desta, supra, 5 Cal.5th at pp. 608-609.) The statute expressly permits the trial court to reserve restitution where the amount cannot be ascertained at the time of sentencing. Defendant bears the burden of demonstrating error on appeal and in the absence of demonstrable error, she is not entitled to the relief from the order. (Id. at p. 609.)
B. Errors in Probation Order
The parties are in partial agreement that the minute order for the sentencing hearing, when compared to the probation order, contains clerical errors that require correction; and, for the first time in her reply, defendant argues that one of the fines in dispute, imposed under section 1202.5, is also unauthorized. Our review is guided by the following principles. "Any discrepancy between the judgment as orally pronounced and as recorded in the clerk's minutes or abstract of judgment is presumed to be the result of clerical error" (People v. Leon (2020) 8 Cal.5th 831, 855, citing People v. Mesa (1975) 14 Cal.3d 466, 471), and we may order correction on review (People v. Mitchell (2001) 26 Cal.4th 181, 185, citing In re Candelario (1970) 3 Cal.3d 702, 705). Further, we may consider legal errors in the imposition of fines, fees, and assessments, notwithstanding the absence of any objection. (People v. Hartley (2016) 248 Cal.App.4th 620, 637 (Hartley).)
We begin first with the probation order because it is the exclusive reflection of the court's judgment in this case regarding the fines, fees, and assessments imposed and it contains some errors not addressed by the parties. As a threshold matter, "'a detailed recitation of all the fees, fines and penalties on the record may be tedious, [but] California law does not authorize shortcuts.'" (Hartley, supra, 248 Cal.App.4th at p. 636, quoting People v. High (2004) 119 Cal.App.4th 1192, 1200 (High).) "Moreover, '[a] detailed description of the amount of and statutory basis for the fines and penalty assessments imposed would help the parties and the court avoid errors in this area.'" (Hartley, supra, at p. 636, quoting People v. Hamed (2013) 221 Cal.App.4th 928, 939 (Hamed).)
This recitation may be accomplished in one of several ways. (Hartley, supra, 248 Cal.App.4th at p. 636.) "'A trial court could recite the amount and statutory basis for any base fine and the amounts and statutory bases for any penalty assessments on the record, as High suggests should be done. (High, supra, 119 Cal.App.4th at p. 1200.) Or, in cases where the amounts and statutory bases for the penalty assessments have been set forth in a probation report, a sentencing memorandum, or some other writing, the court could state the amount and statutory basis for the base fine and make a shorthand reference in its oral pronouncement to "penalty assessments as set forth in the" probation report, memorandum, or writing as authorized in [People v. Sharret (2011) 191 Cal.App.4th 859] and [People v. Voit (2011) 200 Cal.App.4th 1353].'" (Id. at pp. 636637, quoting Hamed, supra, 221 Cal.App.4th at pp. 939-940.)
In this case, the trial court did not orally pronounce any of the fines, fees, and assessments, or refer to the relevant provisions in the probation order. When defendant requested either a waiver of fines and fees where permissible or a payment plan, the court stated only, "I think these are all the statutory minimum fees, and I am assuming they're complying with the latest laws about striking any additional fees, like attorney's fees. I don't think they're in here." The failure to specify the amount and statutory basis for each fine, fee, and penalty assessment was legal error (Hartley, supra, 248 Cal.App.4th at p. 637) and, as discussed next, the probation order contains errors requiring correction on remand.
Condition 27 of the probation order reflects a fine of $100 pursuant to Penal Code section 1203.1, with the following penalty assessments: $100 under Penal Code section 1464, $70 under Government Code section 76000, $20 under Penal Code section 1465.7, and $50 under Government Code section 70372. Effective January 1, 2022, any court-imposed costs under section 1203.1 are unenforceable and uncollectible. (§ 1465.9, subd. (b).) Based on the inclusion of five penalty assessments, the intention may have been to impose a $100 base fine under section 496d but, if so, the statutory basis was omitted. Further, if the intention was to impose a $100 base fine under section 496d, the probation order omitted the following mandatory penalty assessments: $10 (10 percent) under Government Code section 76104.6 and $40 (40 percent) under Government Code section 76104.7. (Hamed, supra, 221 Cal.App.4th at p. 935.) A seventh penalty assessment of 20 percent for emergency medical services under Government Code section 76000.5 is mandatory only if authorized by the county board of supervisors. (Hamed, supra, at p. 935.) On remand, the trial court shall either strike the fine and attached penalty assessments or clarify the statutory basis for the fine and ensure imposition of any mandatory penalty assessments. Depending on the outcome of proceedings on remand, paragraph 9 of the minute order, which relates to condition 27 of the probation order, will require amendment.
Condition 29 of the probation order reflects a $40 security fee under Government Code section 68085.5. This section pertains to the deposit and transfer of specified fines and fees, and its language does not independently authorize the imposition of a security fee. This fee shall be stricken from the probation order or its legal basis clarified.
Section 1465.8, subdivision (a), provides, "To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code." This assessment has been referred to by courts as a security fee. (E.g., People v. Ruiz (2018) 4 Cal.5th 1100, 1121; People v. Alford (2007) 42 Cal.4th 749, 752; People v. Greeley (2021) 70 Cal.App.5th 609, 624.) However, that assessment is provided for under condition 50 in the probation order, although incorrectly described as a fine. (See, e.g., People v. Son (2020) 49 Cal.App.5th 565, 584 ["California's assessments for court costs, although levied only against the convicted, have been held by California courts merely to be user fees charged to a large segment of court users for the purpose of funding the courts, and not to be any part of convicted defendants' punishments."]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1071 ["court facilities and court operations assessments were not enacted to be 'punitive in nature,' but instead were part 'of more comprehensive legislation intended to raise funds for California courts'"].)
Condition 33 of the probation order reflects a fine of $10 under Penal Code section 1202.5, with penalty assessments of $10 under Penal Code section 1464, $7 under Government Code section 76000, $2 under Penal Code section 1465.7, and $3 under Government Code section 70372. The penalty assessment under Government Code section 70372 is 50 percent and should have been $5, but this error is moot because the base fine of $10 under section 1202.5 was imposed in error. Section 1202.5, subdivision (a), provides for a mandatory $10 fine where the defendant is convicted of certain enumerated robbery, burglary, and theft offenses. As defendant asserts, section 1202.5, subdivision (a), does not authorize imposition of a fine in this case because section 496d is not one of the enumerated offenses. Therefore, the base fine and penalty assessments in condition 33 of the probation order, along with corresponding paragraph 10 of the minute order, shall be stricken.
C. Minute Order
The parties agree that paragraph 7 of the minute order, which pertains to flash incarceration, and paragraph 23 of the minute order, which pertains to counseling, must be stricken in accordance with the court's orders striking flash incarceration and substance abuse, mental health, and anger management counseling as terms of probation. The parties also agree that paragraph 6 of the minute order, which prohibits leaving Merced County without written permission, must be amended to reflect the language in condition 4 of the probation order, which prohibits leaving Merced County for more than 48 hours without permission. We concur.
Next, defendant seeks, and the People do not oppose, striking paragraphs 12 (alcohol breath testing), 15 (narcotic/chemical testing), and 28 (narcotics testing) from the minute order because the court did not order those conditions of probation. Defendant also seeks, and the People do not oppose, striking paragraphs 21 (driving privileges suspended and driving under the influence program) and 22 (base fine and penalty assessments for convictions under Veh. Code, §§ 23152 or 23153) from the minute order because they were not ordered and do not apply in this case. Paragraphs 21 and 22 in the minute order do not reflect imposition of these conditions because they are qualified by the language, "If the conviction in this case is for" violation of Vehicle Code sections 23152 or 23153. However, striking paragraphs 21 and 22 would bring greater clarity to the record in this case with respect to sentencing issues. Therefore, paragraphs 12, 15, 21, 22, and 28 of the minute order shall be stricken.
The parties agree paragraph 31 of the minute order should be stricken. The court did not impose a $1,000 fine under Health and Safety Code section 11350, with attached penalty assessments, in this case, and imposition would be unauthorized in any event because that base fine relates to possession of controlled substances. Paragraph 31 of the minute order shall be stricken.
Finally, the parties agree the last page of the minute order erroneously reflects a suspended sentence of 135 years rather than 135 days. The trial court shall direct the correction of this error on remand.
Additionally, although not raised by either party, we observe that the minute order reflects imposition of an $80 court operations fee under Penal Code section 1465.8, and, including a $60 "Conviction Assessment Fee," reflects a grand total for all financial obligations of $140. However, condition 50 of the probation order, which lists a $40 fee under section 1465.8 and a $4 "EMS fee" under Government Code section 76000.10, was not checked. Therefore, notwithstanding that the proper calculation under section 1465.8 would be $80, neither that fee nor the EMS fee was imposed. Further, the total amount of fines, fees, and assessments imposed in this case exceeded $140. The trial court shall ensure correction of this information on remand.
DISPOSITION
This matter is remanded to the trial court with instructions to: (1) either strike or modify probation condition 43 requiring defendant to abstain from excessive use of intoxicating beverages; (2) either strike the fine and penalty assessments imposed in probation condition 27 or clarify the statutory basis for the fine and ensure imposition of any mandatory penalty assessments; (3) strike the $40 Government Code section 68085.5 security fee imposed in probation condition 29 or clarify the legal basis for the fee; and (4) strike the Penal Code section 1202.5 fine and attached penalty assessments imposed in probation condition 33.
On remand, the trial court shall also order paragraphs 7, 12, 15, 21-23, 28, and 31 stricken from the sentencing hearing minute order of November 8, 2021; shall order the correction of paragraph 6 in the minute order to reflect the terms in probation condition 4; shall order correction of the minute order to reflect a suspended sentence of 135 days; and shall ensure the fee summary at the end of the minute order is corrected as to the fines, fees, and assessments imposed and the total of all financial obligations.
The judgment is otherwise affirmed.
WE CONCUR: SNAUFFER, J. DeSANTOS, J.