Filed 5/10/16 P. v. Mayfield CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069657

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FWV1401417)

JUNE MAYFIELD,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County,

Gerard S. Brown, Judge. Affirmed as modified.

         Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

Barry Carlton and Heidi Salerno, Deputy Attorneys General, for Plaintiff and

Respondent.
       Defendant June Mayfield was convicted by a jury of one count of resisting an

executive officer (Pen. Code, § 69)1 and, in a bifurcated proceeding, the court found true

three allegations that Mayfield had suffered prior prison convictions within the meaning

of section 667.5, subdivision (b). The court sentenced Mayfield to the upper term of

three years for the underlying conviction and three additional one-year terms for each of

the prior conviction allegations, along with various fines and probation conditions. On

appeal, Mayfield asks this court to independently review the trial court's ruling on his

Pitchess2 motion for error, and also challenges various aspects of his sentence.

                                             I

                                          FACTS

       A. Prosecution Case

       On February 27, 2014, two deputy sheriffs working for the San Bernardino County

Sheriff's Office (Deputies Cabrera and Macias) were transporting prisoners, including

Mayfield, on a bus headed for the West Valley Detention Center. Mayfield was wearing

specialized clothing and was placed in a special "cage" on the bus because he had been

classified as exhibiting unstable or assaultive behavior. During the ride, Mayfield was

verbally disruptive and he disregarded orders to stay quiet. The orders instead only

increased Mayfield's agitation. Mayfield told Macias several times during the ride to

wait until his handcuffs were off because then Mayfield would kick his ass.

1      All further statutory references are to the Penal Code unless otherwise specified.

2      Pitchess v. Superior Court (1974) 11 Cal.3d 531.

                                             2
       When Macias removed Mayfield from the cage and took him off the bus, Mayfield

resisted Macias's efforts to guide him to the West Valley Detention Center and instead

attacked him. Another deputy, Deputy Patella, came to Macias's aid while Cabrera went

to summon help. The struggle was intense and officers finally used Tasers on Mayfield.

The deputies were finally able to subdue him.

       B. Defense Version

       Mayfield testified he spoke to a female inmate passenger on the bus, but Macias

told him to "shut the fuck up," and Mayfield replied in kind. Macias then warned

Mayfield that, when they got back to the cell, "I'm going to skull fuck the shit out of

you." Mayfield was then quiet for the rest of the trip.

       Mayfield testified that, as he was getting off the bus, Macias grabbed him and he

believed Macias was going to push him down the stairs. Once outside the bus, Macias

and a deputy Bradshaw3 attacked and repeatedly struck Mayfield. He tried to move

away from his attackers but deputies used Tasers on him and beat him.

                                        ANALYSIS

       A. The Pitchess Claim

       Prior to trial, Mayfield filed a motion under Pitchess seeking discovery of

personnel information for deputies Macias, Patella and Cabrera relating to allegations of

excessive use of force, racial bias, and fabrication of evidence or charges. The trial court



3       On rebuttal, evidence was introduced that no deputy named Bradshaw worked in
that division.

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found good cause to hold an in camera hearing as to Macias only, and held that hearing.

(See Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 ["[i]f the trial court finds

good cause for the discovery, it reviews the pertinent documents in chambers and

discloses only that information falling within the statutorily defined standards of

relevance"].) After reviewing the personnel records in camera, the court ruled there were

no discoverable records in the file. Mayfield now asks this court to independently review

the hearing and the records for error, and the People do not oppose that request.

       On appeal, this court is required to examine the materials in camera and determine

whether the trial court abused its discretion in refusing to disclose the contents of the

officers' personnel files. (People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Mooc

(2001) 26 Cal.4th 1216, 1229.) We have examined the personnel records in camera and

conclude the trial court did not abuse its discretion in finding there were no records in the

file responsive to Mayfield's motion.

       B. The "Prison Prior" Claim

       Mayfield contends the court erred when it added a one-year term for a "prison

prior" for the term he was to serve for his conviction in case No. FSB1304811 because, at

the time of the present offense, he had not completed (or indeed even begun serving) any

prison term for that conviction.4 The People concede, and we agree, that it was error to

impose a term for a "prison prior" in connection with his conviction in case


4       Mayfield was on probation for his conviction in case No. FSB1304811 at the time
of the instant offense, and he was not sentenced to county jail for that offense until
April 10, 2014, after the present offense.

                                              4
No. FSB13048113. (See People v. Weeks (2014) 224 Cal.App.4th 1045, 1051 [where

defendant had not completed his prison term for the prior offense at time new offenses

took place, it is error to find prior offense constituted a prison prior under § 667.5, subd.

(b)].) The trial court on remand shall strike the term imposed under section 667.5,

subdivision (b), in connection with Mayfield's conviction in case No. FSB1304811.

       C. The Restitution Fine Claim

       Mayfield challenges the addition of a $30 surcharge contained in the minute order

of the court because, although the $300 restitution fine on which the surcharge was

calculated was imposed by the court's oral pronouncement of sentence, the surcharge was

not separately mentioned in the court's oral pronouncement of sentence. He contends the

minute order prepared by the court clerk unilaterally included this additional surcharge

and asserts that, because the oral pronouncement of a sentence controls over the minute

order, the surcharge must be stricken.

       Section 1202.4, subdivision (b), provides: "In every case where a person is

convicted of a crime, the court shall impose a separate and additional restitution fine,

unless it finds compelling and extraordinary reasons for not doing so and states those

reasons on the record," and subdivision (e) of that section provides that the restitution

fine imposed pursuant to subdivision (b) "shall be deposited in the Restitution Fund in the

State Treasury." Section 1202.4, subdivision (l), then provides, "At its discretion, the

board of supervisors of any county may impose a fee to cover the actual administrative

cost of collecting the restitution fine, not to exceed 10 percent of the amount ordered to



                                              5
be paid, to be added to the restitution fine and included in the order of the court, the

proceeds of which shall be deposited in the general fund of the county."

        The statutory language contemplates that, once the board of supervisors has

exercised the discretion granted to them by section 1202.4, subdivision (l), to impose the

10 percent administrative fee, the surcharge is "to be added to the restitution fine and

included in the order of the court." Although section 1202.4, subdivision (b), provides a

trial court with discretion to decline to impose any restitution fine, once it has elected to

impose the fine, we interpret section 1202.4, subdivision (l), as statutorily obligating the

trial court to follow the direction of the board of supervisors5 and add that administrative

fee to the restitution fine imposed. (Cf. People v. Robertson (2009) 174 Cal.App.4th 206,

210.)

        Because a trial court's failure to add a mandatory administrative fee would result

in an unauthorized sentence subject to correction on appeal (see, e.g., People v. Talibdeen

(2002) 27 Cal.4th 1151, 1157; cf. People v. Smith (2001) 24 Cal.4th 849, 852), we see no

impediment to a trial court adding it to the minute order rather than waiting to have the

order corrected on appeal. Addition of the surcharge to the minute order was not

prejudicial error.




5     There has been no suggestion in this case that San Bernardino County's board of
supervisors has not elected to impose an administrative fee of 10 percent to cover its
administrative cost of collecting restitution fines pursuant to section 1202.4, subdivision
(l).

                                              6
       D. Challenges to Probation Conditions

       Mayfield attacks numerous probation conditions imposed by the court.6

       The Explosives Condition (Condition 10)

       A condition of Mayfield's probation, as imposed by the court, was that he not

"possess nor have under your control any deadly weapons or explosive devices or

material to make explosive devices." (Italics added.) Mayfield argues the italicized

language of that condition is unconstitutionally vague because he cannot reasonably

know what items are barred by that condition; it could encompass ordinary tools (such as

pliers or screwdrivers) that could be employed to construct an explosive device, or other

ordinary items (such as clocks, wires, batteries, etc.) that could be a component of an

explosive device. He asserts the condition should be modified to narrow the condition to

ban possession or control "of any deadly weapons or explosive devices."

       The People agree this court may modify a mandatory supervision condition so that

it conforms to law (People v. Freitas (2009) 179 Cal.App.4th 747, 752-753), and agree

the condition should be modified, but asserts the proper language should narrow the

condition to ban possession or control "of any deadly weapons or explosive devices or

explosive materials." We agree the People's proposed language provides adequate notice

of the thrust of conduct that is properly proscribed, and will adopt that language to

modify Condition 10.


6      The court imposed a six-year term but ordered that Mayfield serve the last three
years of the term on mandatory supervision subject to various terms and conditions of
probation.

                                             7
       The Gang Conditions (Conditions 18, 26 and 28)

       Mayfield asserts that Conditions 18, 26 and 28, which involve various

proscriptions on gang associations or conduct, are unconstitutionally vague because the

term "gang" is undefined and could encompass "benign connotations." (People v. Lopez

(1998) 66 Cal.App.4th 615, 631.) The People agree with Mayfield, and submit that the

solution approved by the court in In re Victor L. (2010) 182 Cal.App.4th 902 cures the

problem of vagueness. In Victor L., the court rejected a claim that the language of the

conditions concerning "gang" associations and activities could preclude "benign"

activities because the condition "include[d] a clause specifying that a 'gang' 'mean[s] a

criminal street gang as defined in Penal Code section 186.22[, subdivision] (f)," and the

Victor L. court concluded this definition clarified that the probationer "need not worry

about attending a Rotary Club meeting or an Eagle Scout campout." (Id. at p. 914.) We

agree that Victor L.'s solution provides Mayfield with adequate notice of the proscribed

conduct and therefore direct that the terms and conditions of probation shall be modified

as described in Victor L.

       The "Stay Away" Condition (Condition 27)

       Mayfield asserts that Condition 27, which requires him to stay one block away

from schools, is invalid because it does not contain a scienter requirement and therefore

he could violate that condition by unknowingly entering the proscribed radius. We agree

with the analysis of the court in People v. Patel (2011) 196 Cal.App.4th 956:

          "Since at least 1993, appellate courts have issued opinions
          consistently holding that conditions of probation must include
          scienter requirements to prevent the conditions from being

                                             8
          overbroad. [Citations.] However, with dismaying regularity, we
          still must revisit the issue in orders of probation, either at the request
          of counsel or on our own initiative. The latter in particular is a drain
          on the public fisc that could be avoided if the probation departments
          at fault would take greater care in drafting proposed probation
          orders. [¶] . . . [T]here is now a substantial uncontradicted body of
          case law establishing, as a matter of law, that a probationer cannot
          be punished for presence, possession, association, or other actions
          absent proof of scienter. . . . [Citations.] We also do not discern
          how addressing this specific issue on a repetitive case-by-case basis
          is likely to dissuade a probation officer inclined to act in bad faith
          from finding some other basis for harassing an innocent probationer.
          As a result, we reject the conclusions reached in [Victor L., supra,
          182 Cal.App.4th 902 and People v. Garcia (1993) 19 Cal.App.4th
          97], and now give notice of our intent to henceforth no longer
          entertain this issue on appeal, whether at the request of counsel or on
          our own initiative. We construe every probation condition
          proscribing a probationer's presence, possession, association, or
          similar action to require the action be undertaken knowingly. It will
          no longer be necessary to seek a modification of a probation order
          that fails to expressly include such a scienter requirement." (Id. at
          pp. 960-961, fn. omitted.)

       In the interests of fiscal and judicial economy, and to avoid the repetitive nature of

this appellate issue, we follow Patel and will "construe every probation condition

proscribing a probationer's presence, possession, association, or similar action to require

the action be undertaken knowingly. It will no longer be necessary to seek a modification

of a probation order that fails to expressly include such a scienter requirement." (Ibid.) It

is unnecessary to add any explicit scienter language to those conditions of Mayfield's

probation that proscribe his presence, possession, association, or similar actions.

       The Payment Conditions (Conditions 14, 15 and 32)

       Conditions 14, 15 and 32 impose on Mayfield certain obligations as conditions of

his mandatory supervision. Mayfield does not challenge the obligations themselves, but


                                              9
only those portions of conditions 14, 15 and 32 requiring him to pay the costs associated

with those obligations. The People concede a court cannot require a defendant to pay for

the costs of mandatory supervision and, as an unauthorized sentence, concede those

clauses must be stricken. (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 763-767;

People v. Fandinola (2013) 221 Cal.App.4th 1415, 1418.) We agree with the People and

direct those clauses be stricken.

                                      DISPOSITION

       The judgment of conviction is affirmed. On remand, the court shall modify

Mayfield's sentence as follows: the court shall strike the term imposed under section

667.5, subdivision (b), in connection with his conviction in case No. FSB1304811. The

court shall also modify Condition 10 of the conditions of probation to require that

Mayfield not "possess nor have under your control any deadly weapons or explosive

devices or explosive materials." The court shall also modify the conditions of probation

to include a statement that "the term 'gang' as used herein means a criminal street gang as

defined in Penal Code section 186.22[, subdivision] (f)." Conditions 14, 15 and 32 shall

be modified to strike the requirement that Mayfield pay the costs associated with the

obligations imposed by those conditions. As so modified, the sentence is affirmed.




                                            10
                                   McDONALD, J.

WE CONCUR:



        BENKE, Acting P. J.



                  IRION, J.




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