Filed 8/21/14 P. v. Sutherland CA2/8
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT



THE PEOPLE,                                                             B249669

                   Plaintiff and Respondent,                            (Los Angeles County
                                                                         Super. Ct. No. GA087284)
           v.

DAVID SUTHERLAND et al.,

                   Defendants and Appellants.



       APPEAL from a judgment of the Superior Court of Los Angeles County.
Candace Beason, Judge. Affirmed in part, modified in part, and conditionally reversed in
part and remanded.

      Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and
Appellant David Sutherland.

      Benjamin Owens, under appointment by the Court of Appeal, for Defendant and
Appellant Maurice Gibbs.

      Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Erika D.
Jackson, Deputy Attorneys General, for Plaintiff and Respondent.

                                       __________________________
       David Sutherland and Maurice Gibbs appeal from their convictions on four counts
of residential burglary, contending that: (1) evidence from the traffic stop that led to their
arrest should have been suppressed; (2) certain terms of their probation were
unconstitutionally vague; and (3) certain fines were improperly imposed. Gibbs also
contends that the trial court erred by denying without a hearing his Marsden1 motion to
replace his appointed lawyer. We affirm as to the traffic stop evidence, but modify the
judgment as to the fines and some of the probation terms. Based on respondent’s
concession, however, we conditionally reverse the judgment as to Gibbs and direct the
trial court to conduct a posttrial hearing on Gibbs’s Marsden motion and then determine
whether to order a new trial or reinstate the judgment.

                         FACTS AND PROCEDURAL HISTORY

       A tip by a suspicious neighbor led Alhambra police to stop a car driven by
Maurice Gibbs, leading to four burglary convictions each against Gibbs and his
passengers, David Sutherland and Tony Banks, after a search of that car uncovered
property stolen from several nearby homes earlier that day. The tipster neighbor
identified Sutherland and Banks as the two men she saw casing her neighbor’s house. A
shoeprint found outside one of the burgled homes was a close match to the shoes Banks
was wearing. After being questioned by the police, Sutherland wrote an apology for his
part in the break-ins.
       The primary issue on appeal concerns the trial court’s denial of Sutherland’s and
Gibbs’s motions to suppress all the evidence obtained or derived from the traffic stop and
search of Gibbs’s car.2 Corporal Art Fernandez of the Alhambra Police Department
testified that at around 10:48 a.m. on August 28, 2012, he was dispatched to the home of

1      People v. Marsden (1970) 2 Cal.3d 118, 123 (defendant has right to discharge
ineffective appointed counsel).

2       Banks also filed a motion to suppress the evidence but he is not a party to this
appeal. Sutherland and Gibbs have joined in each other’s appellate arguments and we
will refer to them collectively as appellants.
                                              2
Marcella R. on South Hidalgo Avenue after she reported suspicious activity at the home
of her neighbor across the street. Marcella told Fernandez that she was unloading
groceries from her car when she saw a car occupied by three African-American men stop
in front of her Asian neighbor’s house. The two passengers got out and walked down the
neighbor’s driveway and the car drove off. Marcella entered her house but went back out
a few minutes later. She heard the neighbor’s dogs bark and saw the same two men walk
back down the driveway, where they were picked up by the car that had dropped them
off. Marcella described the car as a light colored sedan that was like a Ford Taurus. One
of the men who walked down the driveway had a beanie or doo-rag on his head.
       Fernandez checked the neighbor’s house and determined that no break-in had
occurred. He knew that several residential burglaries had occurred in the area that
involved a car dropping off and then retrieving passengers. Fernandez drove off and
began looking for the car Marcella had seen. After about 15 minutes he saw three
African-American men drive by in a silver Pontiac Grand Prix just three blocks from
Marcella’s house. The back seat passenger of that car wore a doo-rag or skull cap.
       Fernandez called for back up and pulled over the Grand Prix. Gibbs was the
driver, Sutherland was the front seat passenger, and Banks was in the back seat behind
Sutherland. Fernandez asked to see Gibbs’s driver’s license, registration, and proof of
insurance. Gibbs was unable to provide those documents, and Fernandez had him step
out of the car. Gibbs told Fernandez that the car was his and that he had no driver’s
license. Fernandez patted down Gibbs because Gibbs wore baggy clothing and
Fernandez wanted to see if Gibbs had any weapons. Fernandez felt a soft object that did
not appear to be a weapon, but did ask Gibbs if he could see it. Fernandez removed the
object, which turned out to be a single cloth glove. Fernandez questioned Gibbs for
several minutes and then had Gibbs sit on the curb and went back to the car to speak with
Sutherland.
       When Sutherland told Fernandez that he had no driver’s license or I.D., Fernandez
asked him to step out of the car. Fernandez patted down Sutherland for weapons.
Sutherland was wearing two pairs of shorts, one over the other, and a pocket of the inner

                                            3
pair was full of loose change. When Fernandez asked what was inside the pocket,
Sutherland said they were coins and that he was a coin collector. Fernandez removed the
coins from Sutherland’s pocket after asking if he could do so. Fernandez questioned
Sutherland for several minutes and then had him sit on the curb and returned to the car to
talk to Banks.
       Banks said he had no driver’s license and Fernandez asked him to step out of the
car. A pat down search showed that Banks was wearing two pairs of pants. Inside a
pocket of the inner pair were a single knit glove and a large amount of currency.
Fernandez questioned Banks for several minutes and had him sit on the curb. The three
suspects had not yet been handcuffed.
       One of the officers who arrived as back up for Fernandez was Sigfredo Villegas.
Right after Gibbs had exited the car Villegas saw that backseat passenger Banks was
fidgeting nervously and turned to his left as if he were concealing something. After all
three suspects were on the curb, Villegas wanted to search the backseat area of the car for
either contraband or weapons based on Banks’s furtive movements. However, Gibbs had
just given Fernandez permission to search the car and both officers took part in doing so.
       A screwdriver blade was on the rear seat beneath three jackets. A cell phone, ear
buds, and $20 were on the floor. The officers opened a panel on the rear seat backs that
allowed access to the trunk. Inside the trunk were a laptop computer, an IPod, a power
cord, a camera, a glove that matched the one found on Banks, and several bank
statements belonging to a man who later reported that his home had been burgled that
day. The officers also found a shaving kit pouch containing coins, credit cards, and the
driver’s license of another burglary victim.
       After the car was searched, Officer Villegas asked Sutherland about the coins
found in the shaving kit. Sutherland instead removed the coins from his pocket, handed
them to Villegas, and said he would not lie and that he had stolen the coins when he was
17. A few minutes later, Sutherland asked to speak to Villegas and admitted that he had




                                               4
taken them from a nearby house. Sutherland had not yet been read his Miranda3 rights,
and Villegas read him those rights soon after.
       Five hours later, after being arrested and booked at the police station, Officer
Corey Fukumoto asked Sutherland if he remembered his Miranda rights from Villegas’s
earlier advisement. Sutherland said he did and Fukumoto questioned Sutherland further.
At the end of that session, Fukumoto asked Sutherland if he wanted to write a letter of
apology. Sutherland said he did. Fukumoto gave Sutherland paper and pen and left the
room. Sutherland then wrote a letter apologizing for his actions.
       The trial court held that the traffic stop was lawful and that the search of the car
was properly conducted with Gibbs’s consent. The trial court found that the weapons pat
down searches were lawful but that Officer Fernandez went too far in searching
appellants’ pockets once he determined the items he touched were not weapons. As a
result, the consent to search the pockets was not voluntary and the gloves and coins found
in appellants’ pockets were excluded from evidence. Sutherland’s oral apology
concerning the coins was also suppressed, but his written apology was later allowed in
evidence.
       Appellants contend that none of the evidence derived from the search of Gibbs’s
car, including Banks’s shoe print and Sutherland’s written apology, should have been
admitted in evidence because: (1) the traffic stop itself was illegal; (2) even if the stop
was legal, the detention was impermissibly long and went too far, especially in light of
the illegal search of appellants’ pockets; and (3) Sutherland’s apology letter was not just
the product of an illegal search but was also obtained in violation of Miranda.




3      Miranda v. Arizona (1966) 384 U.S. 436.
                                              5
                                       DISCUSSION

1.     The Trial Court Did Not Err By Partially Granting the Motion to Suppress
       Evidence

       A.     Standard of Review

       When a trial court rules on a motion to suppress evidence, it finds the facts, selects
the rule of law, and applies that rule to determine whether the law has been violated.
(People v. Letner and Tobin (2010) 50 Cal.4th 99, 145.) We review the trial court’s
factual findings under the substantial evidence standard. Whether the applicable law was
correctly applied to those facts presents a mixed question of law and fact that is subject to
independent review. (Ibid.) We review the ruling itself, not the trial court’s reasoning,
and will affirm if the ruling is correct on any applicable legal theory. (Ibid.)

       B.     The Traffic Stop Was Lawful

       Although the police must have probable cause to arrest a person – a reasonable
belief that the person has committed a crime – a lower standard applies when the police
temporarily detain someone they reasonably suspect has been involved in criminal
activity. (People v. Celis (2004) 33 Cal.4th 667, 673-674 (Celis).) Reasonable suspicion
can arise from information less reliable than that required for probable cause. (People v.
Leath (2013) 217 Cal.App.4th 344, 354 (Leath).) In order to justify an investigative stop
or detention the circumstances known or apparent to the officer must include specific and
articulable facts causing him to suspect that the person he is detaining is involved in
criminal activity that has occurred or is about to occur. (Ibid.)
       The courts look at the totality of the circumstances of the case to determine
whether the officer had a particularized and objective basis for suspecting criminal
activity. The police are allowed to draw on their own experience and specialized training
to make inferences and form deductions about the information available to them that
might not arouse suspicions in others. (Leath, supra, 217 Cal.App.4th at p. 354.)



                                              6
        Appellants contend the initial traffic stop was unlawful because the facts known to
the police did not give rise to a reasonable suspicion that appellants were involved in
criminal activity. According to appellants, tipster Marcella saw nothing more than two
men being dropped off and picked back up after walking down her neighbor’s driveway.
The fact that those men were African-American and the neighbors were Asian was not a
suspicious circumstance, they contend, and to hold otherwise would countenance an
impermissible inference based on race. Furthermore, Fernandez inspected the neighbors’
house and determined that no break in had occurred. Finally, appellants also point to
differing accounts about the make and color of Gibbs’s car and the type of headwear
worn by Banks as undercutting any claim that Officer Fernandez could reasonably
suspect them of criminal activity.
        Appellants rely on In re Tony C. (1978) 21 Cal.3d 888 (Tony C.) and People v.
Durazo (2004) 124 Cal.App.4th 728 (Durazo). Each is distinguishable. In Durazo, a
college student reported a telephonic threat by unknown Mexican gang members, who
said they would come to his apartment the next morning. Four days later, a police officer
stopped a car driven by two Hispanic males who had looked in the direction of the
student’s apartment. A search of the car turned up a loaded pistol, leading to the
defendant’s arrest. Those facts were held insufficient to justify the traffic stop. (Durazo,
at pp. 735-738.) The police in Tony C. stopped two teenage African-American males
walking down the street during a school day lunch hour. The stop led officers to connect
one of the boys with the receipt of stolen property. The justification for the stop was the
officers’ knowledge that three African-American men were wanted in connection with
several nearby burglaries. Because nothing in the youths’ conduct suggested a
connection to criminal activity, the stop was held to be unlawful. (Tony C., at pp. 896-
897.)
        In Durazo, the police had no description to go on and stopped two Hispanic men
four days after the confrontation was supposed to have occurred for doing nothing more
than looking in the direction of the victim’s apartment. In Tony C., the police had no
description of the burglary suspects and the youths they stopped were innocently walking

                                             7
down the street. Missing from both cases are the elements of immediacy and
identification, both of which are present here.
       In our case, Officer Fernandez knew that Marcella’s neighborhood had seen a rash
of burglaries that involved thieves being dropped off outside a house and then picked up
later. Marcella reported seeing two men dropped off at her neighbors’ house, hearing her
neighbors’ dogs bark, and then seeing the same men walk back down the driveway and
get picked up within minutes. Even though no break in had occurred, Fernandez could
reasonably suspect that the men had been casing the house and left because they had been
scared off by the dogs.
       Regardless of whether Marcella’s suspicions were aroused in part because the men
she saw were African-American, because their conduct matched that of other burglaries,
Fernandez was justified in being on the lookout for three African-American men driving
a car that squared with Marcella’s description. Fernandez spotted appellants and Banks
15 minutes later and less than three blocks away. Although the car was not a perfect
match, those minor discrepancies were overridden by the fact that Banks was wearing a
skull cap or doo-rag similar to what Marcella had seen. We therefore hold that the traffic
stop was legal. (See Leath, supra, 217 Cal.App.4th at pp. 348-349, 354 [detention legal
where officer learned that two African-American men driving dark SUV robbed victims
at gunpoint and shouted out gang name before driving off; African-American defendant
stopped when officer saw him walk away from hastily parked SUV a few blocks away in
territory belonging to the gang whose name was called out].)

       C.     The Detention’s Length and Scope Were Also Lawful

       An investigative detention must be temporary and last only as long as needed to
carry out the purpose of the stop. (Celis, supra, 33 Cal.4th at p. 674.) Whether a
detention met this goal turns on the duration, scope, and purpose of the stop. (Id. at
p. 675.) The length of the encounter is an important factor in determining whether the
seizure was so minimally intrusive that it was justifiable based on reasonable suspicion.
(Ibid.) At bottom, we examine whether the officers’ actions went beyond what was

                                             8
necessary to quickly dispel or confirm their suspicions of criminal activity. (Id. at
pp. 675-676.)
       Appellants contend that even if the traffic stop was proper, their detention was
either unlawfully long or became unlawful at the point that Fernandez improperly
searched their pockets. We disagree.
       Fernandez estimated that the detention lasted from 30 to 45 minutes. He testified
that he first spoke with Gibbs for about five minutes in order to obtain his driver’s
license, registration and proof of insurance. After Gibbs was unable to produce those
documents, Fernandez spent another five to 10 minutes patting down Gibbs and asking
him further questions.4 Fernandez spent about eight minutes with Sutherland to ask for
identification, pat him down, and ask some questions. The officer then spent five
minutes patting down and questioning Banks. This adds up to no more than 28 minutes,
which we do not consider an unreasonable length of time to separately question three
potential burglary suspects. It is unclear how long it took Fernandez to ask the suspects
whether he could search their pockets and then do so, but it is reasonable to infer that
doing so did not extend the length of the detention by more than a few minutes.5 We
therefore hold that the actual length of the detention was not excessive.




4      Gibbs points to a booking report showing he had a California driver’s license as
further proof that the detention was unlawfully prolonged, but that fact does not negate
Fernandez’s testimony that Gibbs did not produce a license when asked. Neither does it
show that the license was Gibbs’s. Gibbs also relies on the arrest report, which states that
he was unable to produce proof of insurance and does not mention the failure to produce
a driver’s license. This too was a factual conflict that the trial court resolved against him.

5      In this section we consider only the actual length of the detention. In the
following section we consider the legal effect of the fact that the pocket searches were
found to be unlawful.

                                              9
      D.      The Unlawful Pocket Searches Did Not Require Exclusion of the Car’s
              Contents or Banks’s Shoe Print6

       A lawful traffic stop exceeds constitutional bounds when it is extended beyond
what is reasonably necessary under the circumstances that first justified the stop. (People
v. Medina (2003) 110 Cal.App.4th 171, 176 (Medina).) Based on this, appellants contend
that Fernandez’s unlawful search of their pockets required suppression of the items found
in the car and Banks’s shoe print for two reasons: (1) the detention became unlawful
from that point, and the incriminating evidence was not discovered until later; and (2) it
tainted and therefore invalidated Gibbs’s subsequent consent to search his car.7
       Resolution of this issue turns on our application of the “fruit of the poisonous tree”
doctrine, which excludes evidence obtained as a result of an illegal search unless that
evidence was seized independently of the illegality. (Medina, supra, 110 Cal.App.4th at
p. 178.) Under this doctrine, evidence obtained in connection with an illegal search will
not be excluded if it was not discovered by exploiting the illegality and was instead the
result of circumstances sufficiently distinguishable from the illegality that the primary
taint has been purged. (Ibid.) The degree of attenuation needed to dissipate the taint
requires an intervening independent act by the defendant or a third party that breaks the
causal chain between the incriminating evidence and the illegal search. (Ibid.)
       Gibbs’s consent to search the car – if valid – provides the required break in the
chain of events from the unlawful pocket searches. (People v. Oldham (2000)
81 Cal.App.4th 1, 9 [a warrantless search made with consent does not violate the Fourth
Amendment]; U.S. v. Mosley (3d Cir. 2006) 454 F.3d 249, 252-253 [although passengers
generally lack standing to challenge vehicle searches, they may challenge evidence

6      We exclude from this portion of our analysis the admissibility of Sutherland’s
written apology, which we discuss in section 1.E., post.

7      We observe that the trial court: (1) excluded evidence of the coins and gloves
found in appellants’ pockets after finding that the consent to search their pockets was
invalid; and (2) at some other point excluded evidence of the oral apology Sutherland
gave after being asked about the coins found in the trunk of Gibbs’s car. Respondent
does not contest those rulings.
                                             10
obtained from unlawful traffic stop]; accord Brendlin v. California (2007) 551 U.S. 249,
256-257 [vehicle passengers may challenge the lawfulness of a traffic stop]; U.S. v.
Cortez-Galaviz (10th Cir. 2007) 495 F.3d 1203, 1206, fn. 3 [same].)
       To determine whether Gibbs’s consent was tainted by the unlawful pocket
searches, we look to four factors: (1) the time gap between the illegality and the consent;
(2) the presence of intervening circumstances; (3) the purpose and flagrancy of the
official misconduct; and (4) whether Miranda warnings were given before consent was
obtained (U.S. v. Patzer (9th Cir. 2002) 277 F.3d 1080, 1084.)
       Appellants cite U.S. v. Yousif (8th Cir. 2002) 308 F.3d 820 (Yousif) and U.S. v.
Valdez (11th Cir. 1991) 931 F.2d 1448 (Valdez) to support their contention that the taint
from the illegal pocket search had not been purged when Gibbs consented to the search of
his car. Both are distinguishable. The defendants in Yousif pulled off the highway in
response to an illegal police ruse that involved warning signs about an upcoming drug
checkpoint when the checkpoint was in fact located where motorists would leave the
highway in order to avoid that checkpoint. The police officer who questioned Yousif
noticed a strong raspberry odor and asked why he had left the highway at that point.
Yousif’s wife said they did so to walk their dog. The officer asked Yousif if he had any
illegal drugs in the car and Yousif said he did not. The officer asked if Yousif would
consent to a search. The wife asked if a warrant was needed and the officer said he could
search with consent or if he had probable cause. Yousif then consented to the search.
The Eighth Circuit held that the traffic stop was the result of an illegal ruse and that the
taint from that ruse was not purged by Yousif’s consent because: (1) little time elapsed
between the detention and consent; (2) the officer’s statement that he could search if he
had probable cause indicated that he would search the car even without consent; and
(3) Yousif found himself in the presence of patrol cars, numerous uniformed officers,
and patrol dogs. (Yousif, at p. 831.)
       The defendant in Valdez, supra, 931 F.2d 1448 was the subject of an illegal and
pretextual traffic stop as part of a stake-out of suspected drug dealers. He was asked for
consent to search immediately after being asked for his driver’s license, and was told he

                                              11
did not have to consent. Even so, given the lack of any appreciable time to consider
whether or not to consent, and because the officers had no reason connected with the
traffic stop itself to ask for consent, the Eleventh Circuit held that the taint from the
illegal stop had not been purged. (Id. at p. 1452.)
       The facts here are significantly different. Appellants were detained as part of a
lawful traffic stop. Officer Fernandez asked Gibbs for consent to search when he was
done questioning all three suspects. According to Fernandez’s time estimates, that
occurred from 15 to 20 minutes after the unlawful extended pat down search of Gibbs. In
the interim, Gibbs was sitting on the curb. He had not been handcuffed and the officers
had not drawn their guns. We recognize that the trial court found appellants’ consent to
the pocket searches was not voluntary under the circumstances, and it is an evidentiary
factor that we consider. However, Fernandez did ask for consent instead of simply
reaching into their pockets and we do not believe this qualifies as flagrant misconduct.
Furthermore, it suggested that he would not act without first obtaining their consent.
Fernandez was never asked whether he read Gibbs his Miranda rights before asking for
permission to search the car, or whether he told Gibbs he could refuse to consent. The
absence of such evidence is not dispositive, however. (People v. Monterroso (2004)
34 Cal.4th 743, 758.) Neither is the fact that Gibbs had been detained for some period of
time under the watchful eye of several officers. (U.S. v. Watson (1976) 423 U.S. 411,
424-425 [consent voluntary even though defendant was actually handcuffed and under
arrest]; Monterros, at p. 758; People v. Ramirez (1997) 59 Cal.App.4th 1548, 1559.)
Finally, the trial court excluded the items found in appellants’ pockets.
       The only evidence the trial court had apart from the timing and the circumstances
was Fernandez’s testimony that he asked for permission and that Gibbs replied, “Go
ahead.” Based on this the trial court found that nothing was said to suggest to Gibbs that
he was not free to decline consent and that Gibbs “readily agreed” to do so. Under the
circumstances, given the deference we must show to the trial court’s factual findings
(Monterroso, supra, 34 Cal.4th at p. 758), we hold that Gibbs voluntarily consented to
the search of the vehicle.

                                              12
       E.     There Was No Error In Admitting Sutherland’s Apology

       Sutherland contends that his written apology was obtained in violation of both his
Fourth and Fifth Amendment rights because it was the product of his illegal detention and
because he did not receive proper Miranda warnings before his interrogation began.
       In regard to his Fourth Amendment claim, to the extent Sutherland contends the
traffic stop itself was illegal, we have already rejected that claim. To the extent he
contends it was the product of the unlawful search of his pockets, the later written
apology was admissible so long as the prosecution shows it was not caused by the earlier
unlawful search. (People v. Storm (2002) 28 Cal.4th 1007, 1028.) We believe the
prosecution met that burden.
       The unlawful pocket search was conducted by Officer Fernandez about halfway
through the 30 minute detention. Sutherland verbally apologized about 15 minutes later
after Officer Villegas discovered coins in the trunk of Gibbs’s car and asked Sutherland
about those coins. Sutherland was read his Miranda rights after making that statement.
Five hours later, after being booked, Sutherland was asked if he recalled his Miranda
rights, and being questioned further, he agreed to write out an apology for his actions.
       These facts remove this case from the two cited by appellants: Taylor v. Alabama
(1982) 457 U.S. 687, and Brown v. Illinois (1975) 422 U.S. 590. In both cases the police
arrested the defendants without probable cause, essentially as a pretext to investigate and
see if “something might turn up.” (Taylor at pp. 690-691.) Even though there were
delays of several hours between the arrest and the confession and he was read his
Miranda rights three times, the defendant in Taylor was in custody, questioned several
times, fingerprinted, and subjected to a lineup. As a result, the confession was the
product of the illegal seizure. (Id. at p. 691.)
       As for Sutherland’s Miranda claim, he contends it amounted to a two-step
interrogation process of the type prohibited under Missouri v. Seibert (2004) 542 U.S.
600 (Siebert) where incriminating statements are elicited without a Miranda warning and
then used as the basis to have the defendant repeat those statements after being given his

                                              13
Miranda warnings. Our courts have held that the Siebert rule does not apply when there
is no evidence that the interrogating officers deliberately used such a process to
circumvent Miranda pursuant to departmental policy. (People v. Scott (2011) 52 Cal.4th
452, 478; People v. Williams (2010) 49 Cal.4th 405, 448; People v. Camino (2010)
188 Cal.App.4th 1359, 1364.)
       We first note that appellants do not contend on appeal that Miranda was violated
because Sutherland was interrogated five hours after being informed of his Miranda
rights and was simply asked whether he recalled those rights. There is no evidence that
the officers consciously sought to undermine Sutherland’s Miranda rights or that they did
so pursuant to a department policy or interrogation tactic. After being questioned for
approximately 45 minutes Sutherland agreed to write out an apology for his actions and
did so while left alone in the interrogation room. We therefore hold that Siebert does not
apply here.
       Finally, assuming for the sake of argument that Sutherland’s Fourth and Fifth
Amendment rights were violated by introduction of the written apology, we will not
reverse if the error was harmless beyond a reasonable doubt. (People v. Neal (2003)
31 Cal.4th 63, 86.) Marcella identified Sutherland and Banks as the two men she saw
walking down her neighbor’s driveway. Based on her tip, the police stopped a car driven
by Gibbs, in which Sutherland and Banks were passengers. Property stolen from nearby
homes was found in the trunk of Gibbs’s car. A shoe print that was a close match with
Banks’s shoes was found outside the window of one burglary victim. Even without
Sutherland’s apology, the evidence against appellants was overwhelming. We therefore
hold that any error in admitting Sutherland’s written apology was harmless beyond a
reasonable doubt.

2.     The Probation Conditions Must Be Modified

       The trial court sentenced both Gibbs and Sutherland to serve seven years and four
months in state prison, and then suspended those sentences and placed appellants on five
years formal probation. The probation order included several conditions: (1) stay away

                                             14
from all the victims in this case; (2) not to own, use, or possess dangerous or deadly
weapons, including firearms, knives, and other concealable weapons; (3) not to own, use,
possess, buy or sell any controlled substances or drug paraphernalia except with a
prescription; (4) to stay away from places where drug users, buyers, or sellers
congregate; and (5) not to associate with persons known by you to be controlled
substances users or sellers except in an authorized treatment program.
       Appellants contend the first four conditions are unconstitutionally vague because
they do not include a requirement that the violations be knowing. They contend that the
two stay away orders – applicable to the victims and places where drug users and sellers
congregate – are also unconstitutionally vague because they do not include a distance
requirement. (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.) [a probation
condition is unconstitutionally vague if it is not sufficiently precise for the probationer to
know what is required of him and for the court to determine whether the condition has
been violated].)
       Respondent concedes that a distance limit is required and agrees that appellants’
suggestions of a 100 foot limit as to the victims and a 50 foot limit as to places where
drug users and sellers congregate is appropriate. (See People v. Barajas (2011)
198 Cal.App.4th 748, 760-762.) We will order that the probation conditions be modified
accordingly.
       Respondent contends that formal modification to include the knowledge
requirement is unnecessary because it is implied by law. Various courts of appeal have
adopted different procedures for effecting Sheena K.’s constitutional requirement. In In
re Patel (2011) 196 Cal.App.4th 956, 960, the Third District expressed impatience with
the fact that probation terms have continued to omit required scienter requirements in the
face of 20 years of jurisprudence on the subject. The remedy it suggested was to assume
in all cases that knowledge was implied, and if that were not sufficient, appellate counsel
could apply to the trial court for modification. (Id. at pp. 960-961 & fn. 4.) The court
stated that it was now giving “notice of our intent to henceforth no longer entertain this


                                              15
issue on appeal, whether at the request of counsel or on our own initiative.” (Id. at
p. 960.)
       A few months after Patel, the Fourth District took a different tack on the proper
remedy for the failure to include a constitutionally required knowledge requirement. In
People v. Moses (2011) 199 Cal.App.4th 374, 381, the court acknowledged Patel but held
it would “instead choose to modify and strike certain challenged probations conditions.”
It also stated “that the superior court should revise its standard probation conditions form
to meet constitutional requirements.” (Ibid.)
       We need not to decide whether in all cases Moses or Patel is preferred. Here we
are remanding for other reasons as well, so we direct the trial court to modify the terms of
probation to include the distance and knowledge requirements as set forth above.

3.     The Judgment Should Be Modified to Delete the Court Security and Criminal
       Conviction Assessment Fees as Conditions of Probation and Instead Treat Them
       as Separate Orders

       As conditions of probation the trial court imposed a $40 court security fee (Pen.
Code, § 1465.8) and a $30 criminal conviction assessment fee (Gov. Code, § 70373). As
appellants point out and respondent concedes, those fees may not be assessed as
conditions of probation. (People v. Kim (2011) 193 Cal.App.4th 836, 842.) Instead of
simply eliminating those fees as appellants request, however, the proper remedy is to
delete them as probation conditions and enter them as separate orders. (Id. at p. 848.)

4.     Gibbs Is Entitled to A New Marsden Hearing

       Criminal defendants represented by appointed counsel who believe they are
receiving inadequate representation may seek appointment of new counsel pursuant to
Marsden, supra, 2 Cal.3d 118. The trial court must permit the defendant to explain the
basis of his contention and to relate specific instances of inadequate performance.
(People v. Smith (2003) 30 Cal.4th 581, 604.) The defendant is entitled to new counsel if
the record clearly shows either inadequate representation or an irreconcilable conflict


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with counsel that makes ineffective representation likely. (Ibid.) The motion may be
made at any point in the trial. (People v. Roldan (2005) 35 Cal.4th 646, 681, overruled
on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
       Gibbs brought a Marsden motion on April 25, 2013, that was denied following a
hearing. He made another Marsden motion on May 8, 2013. In response, the trial court
said: “This is not an appropriate time. I can’t even imagine what is crossing our brain on
this one. [Gibbs’s lawyer], I reviewed – seen his performance and his abilities in this
courtroom in this case and in other cases. And previously we’ve had things. I think it’s a
delaying tactic, and so the court is not even going to hear the motion.”
       Gibbs contends, and respondent concedes, that the trial court erred by summarily
denying the motion. Gibbs contends this calls for outright reversal of the judgment. We
disagree on straight reversal. Instead, the proper remedy is to reverse the judgment
subject to the trial court conducting a Marsden hearing and then exercising its discretion
to order a new trial, reinstate the judgment, or proceed as otherwise authorized by law.
(People v. Lopez (2008) 168 Cal.App.4th 801, 815.)

                                       DISPOSITION

       The judgment is modified as to Sutherland as to only the terms of his probation
and the court security and criminal conviction assessment fees. The matter is remanded
to the trial court with directions to eliminate the fees as conditions of probation and enter
them as separate orders. The trial court must also modify the terms of probation to
include the distance and knowledge requirements as set forth in our decision. The
judgment as so modified is affirmed.
       The judgment is reversed as to Gibbs for the sole purpose of conducting a new
Marsden hearing, after which the trial court shall exercise its discretion to either order a
new trial, reinstate the judgment, or proceed as otherwise authorized by law. If the trial
court reinstates the judgment as to Gibbs, it shall modify the judgment to amend the
terms of probation in regard to knowledge and distance as set forth in our decision and
shall eliminate the court security and criminal conviction assessment fees as conditions of

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probation and enter them as separate orders. If that is the outcome, then the modified
judgment is affirmed.




                                                       RUBIN, J.
WE CONCUR:



      BIGELOW, P.J.



      GRIMES, J.




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