Filed 4/13/16 P. v. Tapia CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E062495

v.                                                                      (Super.Ct.No. FSB1302534)

DAVID MEDINA TAPIA,                                                     OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson,

Judge. Affirmed as modified.

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

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G.

McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and

Respondent.



                                                             1
       While adjusting the seatbelt of the truck he was driving, defendant, David Medina

Tapia, swerved from his lane, striking a female pedestrian walking on an unimproved

sidewalk along the side of the road, causing serious injuries. Defendant drove on without

stopping, but neighbors identified his truck and he was subsequently arrested for hit and

run (Veh. Code, § 20001, subd. (a)), and driving without a valid license (Veh. Code,

§ 12500, subd. (a)). He was convicted on both counts following a jury trial and appealed.

       On appeal, defendant argues (1) his trial counsel provided ineffective assistance by

failing to object to the probation condition requiring defendant to submit to warrantless

searches; (2) imposition of a minimum restitution fine in the amount of $300 violated ex

post facto laws; (3) imposition of a $30 surcharge on the restitution fine was improper

where it was not included in the court’s oral pronouncement of judgment; and (4) the

probation condition prohibiting defendant from possessing or controlling materials to

make explosive devices was void for vagueness.

                                         BACKGROUND

       Because defendant raises only sentencing issues on appeal, a detailed recitation of

the facts is unnecessary.

       On May 21, 2011, at approximately 3:30 p.m., Evangelina P. was walking on an

unpaved pedestrian walkway with her two grandchildren, when she was struck by a white

truck that was driven by defendant for his employer, Inland Empire Landscaping. The

truck did not stop; instead, defendant drove further and turned into the driveway of the

landscaping business.



                                             2
       A teenage girl who lived nearby heard the sound of a collision and heard children

screaming, so she went outside. She saw the injured woman lying on the ground, and

called for her mother to call 9-1-1. The victim was transported to the hospital where she

underwent surgery to remove her spleen, and treatment for other injuries.

       Officer Nogues, an investigator for the California Highway Patrol, conducted a

follow-up investigation of the incident, and learned that the vehicle involved in the hit-

and-run accident was a white truck owned by Inland Empire Landscaping, that was

driven by defendant on the date of the accident. The truck in question had denting on the

right front fender, the passenger side mirror was cracked, and the right side turn signal

was broken. Red and orange debris from the turn signal was on the ground, and a

mailbox near the point of impact was also damaged.

       Officer Nogues interviewed defendant. Defendant admitted he had driven the

white truck down the street in question. He indicated that when he attempted to adjust

his seatbelt, the truck drifted to the right and possibly struck a mailbox. There did not

appear to be any damage done, so he did not stop. Defendant’s driver’s license was

suspended on the day of the accident due to lack of insurance, but was reinstated a few

days later when he provided proof of insurance to the Department of Motor Vehicles.

       Defendant was charged with felony leaving the scene of an accident (Veh. Code,

§ 20001, subd. (a), count 1), and misdemeanor driving without a valid license

(Veh. Code, § 12500, subd. (a), count 2). It was further alleged that the accident




                                             3
described in count 1 resulted in permanent, serious injury to another (Veh. Code,

§ 20001, subd. (b)(2)).

       After trial by jury, defendant was convicted of both counts. At sentencing, the

court granted probation, on certain terms and conditions. Defendant appealed.

                                           DISCUSSION

       1.     Defendant’s Right to Effective Assistance of Counsel Was Not Violated.

       Defendant argues that he was deprived of effective assistance of counsel during

the pronouncement of judgment because his attorney failed to object to a standard

probation condition involving the waiver of defendant’s Fourth Amendment Rights. We

disagree.

       To demonstrate that his right to effective assistance of counsel was violated,

defendant must satisfy a two-pronged test: He must show (1) performance below an

objective standard of reasonableness by his attorney, and (2) prejudice sufficient to

establish a reasonable probability he would have obtained a more favorable result in the

absence of counsel’s error. (Strickland v. Washington (1984) 466 U.S. 668, 687-688,

693-694 [104 S.Ct. 2052, 80 L.Ed.2d 674] (Strickland).)

       There is a “‘strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance.’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th

415, 436-437.) Where the record on appeal sheds no light on why counsel acted or failed

to act in the manner challenged, unless counsel was asked for an explanation and failed to

provide one, or unless there simply could be no satisfactory explanation, the claim on



                                             4
appeal must be rejected. (People v. Mendoza Tello (1997)15 Cal.4th 264, 266.) “Further,

‘a court need not determine whether counsel’s performance was deficient before

examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.’” (People v. Carrasco (2014) 59 Cal.4th 924, 982, citing Strickland, supra,

466 U.S. at p. 697.)

       In other words, we need not determine whether defendant established the first

prong of Strickland, deficient performance, if we conclude that even if counsel’s

performance was deficient, defendant has failed to sustain his burden on the issue of

prejudice. (In re Alvernaz (1992) 2 Cal.4th 924, 945.) To demonstrate that his counsel’s

performance was deficient in failing to object to a standard probation condition,

defendant must show that the probation condition requiring him to submit to warrantless

searches would not have been imposed upon a timely objection.

       Probation is a privilege and not a right. (People v. Olguin (2008) 45 Cal.4th 375,

384.) Thus, adult probationers may validly consent to limitations upon their

constitutional rights, such as warrantless search conditions, in preference to incarceration.

(Ibid., citing People v. Ramos (2004) 34 Cal.4th 494, 506; People v. Bravo (1987) 43

Cal.3d 600, 609.) “If a defendant believes the conditions of probation are more onerous

than the potential sentence, he or she may refuse probation and choose to serve the

sentence.” (People v. Olguin, supra, 45 Cal.4th at p. 379.)

       Generally, “[a] condition of probation will not be held invalid unless it ‘(1) has no

relationship to the crime of which the offender was convicted; (2) relates to conduct that



                                              5
is not in itself criminal; and (3) requires or forbids conduct that is not reasonably related

to future criminality. . . . ’ [Citation.]” (People v. Lent (1975) 15 Cal.3d 481, 486.) If a

“probation condition serves the statutory purpose of ‘reformation and rehabilitation of the

probationer’ [citation], it necessarily follows that such a condition is ‘reasonably related

to future criminality’” within the meaning of the Lent test for validity. [Citation.]

(People v. Balestra (1999) 76 Cal.App.4th 57, 65.)

       We acknowledge that historically, there have been cases in which search

conditions have been struck down as unreasonable. (See, People v. Keller (1978) 76

Cal.App.3d 827, 840 [search condition imposed for petty theft with prior; disapproved on

a different point by People v. Welch (1993) 5 Cal.4th 228, 237]; see also, People v.

Burton (1981) 117 Cal.App.3d 382, 390-391.) However, more recent cases have

acknowledged that warrantless search conditions serve a valid rehabilitative purpose.

(People v. Balestra, supra, 76 Cal.App.4th at p. 67.) In Balestra, supra, Division One of

the Fourth District Court of Appeal observed that the decision in People v. Keller, supra,

was inconsistent with Fourth Amendment jurisprudence since the date of that decision.

(Balestra, supra, 76 Cal.App.4th at p. 67.)

       We agree with that assessment. A warrantless search condition is intended and

enables a probation officer to both ascertain whether the defendant is complying with the

terms of probation as well as to determine if defendant is not in compliance. (People v.

Adams (1990) 224 Cal.App.3d 705, 712, citing People v. Mason (1971) 5 Cal.3d 759,

763-764, overruled on other grounds in People v. Lent, supra, 15 Cal.3d at p. 486, fn. 1.)



                                              6
Information obtained under these circumstances afford a valuable measure of the

effectiveness of the supervision given the defendant and his rehabilitation. (People v.

Mason, supra, 5 Cal.3d at pp. 763-764, citing People v. Kern (1968) 264 Cal.App.2d 962,

965.) Such conditions are valid. (People v. Bauer (1989) 211 Cal.App.3d 937, 943.)

       Counsel may well have reasonably concluded that an objection to the warrantless

search condition would have been futile. (See People v. Foster (1993) 14 Cal.App.4th

939, 954 [superseded by statute on a different point].) Given its utility, it cannot be said

that the search condition would have been stricken upon a timely objection by defense

counsel. Search conditions are so common that they are included in the standard

probation orders submitted by probation officers in recommending probation to the court.

In other words, even if counsel had objected, it is unlikely the condition would have been

stricken. As such, any oversight or failure by counsel cannot be said to have caused

prejudice.

       2.     Imposition of the $300 Restitution Fine, At Defendant’s Request, Was

Proper.

       Defendant argues that the imposition of a minimum restitution fine in the amount

of $300 violated the ex post facto clauses of the State and Federal Constitutions, because

the minimum was only $200 at the time defendant committed the offense. We disagree.

       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 (Pen. Code, § 1202.4,



                                              7
subd. (b)). The restitution fine shall be set at the discretion of the court and be

commensurate with the seriousness of the offense (Pen. Code, § 1202.4, subd. (b)(1)).

Prior to January 1, 2012, the statutory minimum restitution fine was $200, but the court

was authorized to impose a restitution fine in an amount up to $10,000 (Stats. 2011, ch.

45, § 1; Pen. Code, § 1202.4, subd. (b)(1)). The restitution fine was therefore lawful,

albeit not the absolute minimum possible restitution fine possible at the time defendant

committed the offense.

       Defendant relies on the facts that counsel requested imposition of the minimum

restitution fine and that the court indicated it would follow that request as a reason to

modify the amount imposed. However, counsel expressly requested a $300 restitution

fine and the court so ordered. Because the fines were lawful under current law and the

law in effect in January 2011, defendant’s failure to object below to the court’s exercise

of its discretion in setting the amount of the fines has forfeited the contention on appeal.

(People v. Garcia (2010) 185 Cal.App.4th 1203, 1218 [when fines imposed by court are

permitted by law, the defendant’s failure to object below forfeits challenge on appeal].)

       Because defense counsel requested imposition of the very amount ordered, which

was at the low end of possible restitution fines, we cannot find that the court abused its

discretion. Perhaps to overcome this obstacle, defendant frames the issue as one of

constitutional dimension, in arguing that the amount imposed violates ex post facto

principles. “[T]he imposition of restitution fines constitutes punishment, and therefore is

subject to the proscriptions of the ex post facto clause and other constitutional provisions.



                                              8
[Citations.]” (People v. Souza (2012) 54 Cal.4th 90, 143; see also, People v. Morris

(2015) 242 Cal.App.4th 94, 102.)

       The ex post facto “clause prohibits three legislative categories: legislation

‘“(1) which punishes as a crime an act previously committed, which was innocent when

done; (2) which makes more burdensome the punishment for a crime, after its

commission, or (3) which deprives one charged with crime of any defense available

according to law at the time when the act was committed.’” [Citations.]” (People v.

McVickers (1992) 4 Cal.4th 81, 84.)

       Although the amended provisions of Penal Code section 1202.4, subdivision (b),

did increase the statutory minimum restitution fine from $200 to $300, the trial court

nonetheless has always had the discretion to impose a $300 restitution fine—or more, up

to a statutory maximum of $10,000. The court imposed the specific amount suggested by

defendant, an amount it had discretion to impose. Defendant’s failure to object to the

amount imposed at the time of sentencing results in forfeiture. (People v. Tillman (2000)

22 Cal.4th 300, 302-303 [prosecutor’s failure to object to court’s failure to state reasons

for non-imposition of restitution fine forfeited error]; People v. Martinez (2014) 226

Cal.App.4th 1169, 1189.)

       There was no error.




                                              9
        3.     The Surcharge on the Restitution Fine Was Properly Imposed.

        Defendant argues that the trial court erred in imposing a $30 surcharge on the

restitution fine because the amount was not mentioned during the oral pronouncement of

judgment. We disagree.

        Penal Code section 1202.4, subdivision (l), authorizes a sentencing court to order

the payment of a fee to cover the actual administrative cost of collecting the restitution

fine, not to exceed 10 percent of the amount ordered to be paid, to be added to the

restitution fine. The fee is imposed on any “restitution fine” ordered pursuant to Penal

Code section 1202.4, subdivision (b). (People v. Robertson (2009) 174 Cal.App.4th 206,

210.)

        It has traditionally been held that the trial court’s oral pronouncement is presumed

correct (People v. Mesa (1975) 14 Cal.3d 466, 471). “[T]he modern rule is not automatic

deference to the reporter’s transcript, but rather adoption of the transcript due more

credence under all the surrounding circumstances.” (People v. Rodriguez (2013) 222

Cal.App.4th 578, 586.) When the record is in conflict, it will be harmonized if possible.

(People v. Smith (1983) 33 Cal.3d 596, 599 (Smith).)

        However, where that is not possible, that part of the record will prevail, which,

because of its origin and nature or otherwise, is entitled to greater credence. (Smith,

supra, 33 Cal.3d at p. 599.) Thus, “‘whether the recitals in the clerk’s minutes should

prevail as against contrary statements in the reporter’s transcript, must depend upon the




                                             10
circumstances of each particular case.’ [Citations.]” (Ibid.; see also, People v. Freitas

(2009) 179 Cal.App.4th 747, 750, fn. 2 (Freitas).)

       In Freitas, the reviewing court held that the reporter’s transcript governed because

it was more inclusive than the clerk’s transcript insofar as the court orally added language

to the probation condition prohibiting defendant from owning, possessing or “hav[ing]

custody or” control of any firearms or ammunition. (Freitas, supra, 179 Cal.App.4th at

p. 750, fn. 2.)

       In the present case, the court omitted to recite a portion of one of the conditions,

after acquiescing in defense counsel’s request to impose a lesser restitution fine.

Specifically, referring to the proposed probation order, defense counsel stated, “As to the

terms, your Honor, I would object to Term 13 on page 9, Term 15 on page 10, and I

would ask the Court to set all fines and fees at the statutory minimum. Particularly, Term

19 on page 10, I would ask the Court to set that at $300, and I would submit.”

       With probation conditions, some courts have subscribed to the view that probation

conditions “‘need not be spelled out in great detail in court as long as the defendant

knows what they are; to require recital in court is unnecessary in view of the fact the

probation conditions are spelled out in detail on the probation order.’” (People v. Pirali

(2013) 217 Cal.App.4th 1341, 1346, quoting People v. Thrash (1978) 80 Cal.App.3d 898,

901–902.)

       Nevertheless, it is obvious from the reporter’s transcript that the trial court and all

parties were working from the same proposed probation order which apprised defendant



                                              11
and his counsel of the administrative fee, or surcharge. The court indicated it had

discussed the matter with both counsel prior to going on the record.

       At the hearing, the parties referred to the proposed probation order by page

number and condition number, and defendant sought modification of certain terms

contained in the proposed order. Condition No. 19 expressly referred to the 10 percent

administrative fee in addition to the restitution. Defendant did not object to the term

requiring payment of the surcharge or administrative fee, and he accepted probation on

the terms ordered by the court, as modified.

       Reading the reporter’s transcript and the clerk’s transcript together, the trial

court’s failure to mention the administrative fee orally cannot be construed as an intent to

strike it, where all parties and the court contemplated an order consistent with the terms

contained in the proposed probation order, subject to the modifications made at counsel’s

request. The inclusion of the administrative fee was proper despite the fact the court did

not orally recite it.

       4.      The Probation Condition Prohibiting Possession of Materials for Making

Explosive Devices Should Be Modified.

       Defendant argues that the probation condition prohibiting him from possessing or

having under his control materials to make explosive devices is unconstitutionally vague.

We agree.

       Probation condition number 11 compels defendant to “Neither possess nor have

under your control any dangerous or deadly weapons or explosive devices or materials to



                                               12
make explosive devices.” We review whether a probation condition is unconstitutionally

vague using the de novo standard of review. (In re Shaun R. (2010) 188 Cal.App.4th

1129, 1143.)

       The underpinning of a vagueness challenge is the due process concept of “fair

warning.” (People v. Castenada (2000) 23 Cal.4th 743, 751.) The rule of fair warning

embodies the due process concepts of preventing arbitrary law enforcement and

providing adequate notice to potential offenders. (Ibid.) To withstand a challenge of

vagueness, a probation condition must be sufficiently precise for the probationer to know

what is required of him, and for the court to determine whether the condition has been

violated. (In re Sheena K. (2007) 40 Cal.4th 875, 890.) “A probation condition that

imposes limitations on a person’s constitutional rights must closely tailor those

limitations to the purpose of the condition to avoid being invalidated as unconstitutionally

overbroad.” (Id. at p. 890.)

       The People argue that the condition of probation is reasonably specific because it

prohibits possession or having under defendant’s control “materials to make explosive

devices,” which prohibits him from possessing materials with which he intends to make

explosive devices. However, a scienter requirement is not so easily implied where a

defendant may knowingly but innocently possess common items that could be used to

construct explosive devices without any intention of making an explosive device. In

addition to generic tools that could be used for making explosive devices, as described in

defendant’s brief, certain household cleaning agents and products may be combined with



                                            13
explosive results, wittingly or unwittingly. Thus, a probationer could knowingly, but

innocently, possess materials that could be used to make explosive devices.

       In several unpublished opinions we have concluded that the language in question

is not so clear. Therefore, the condition should be modified to read, “Neither knowingly

possess, nor knowingly have under your control, any dangerous or deadly weapons or

explosive devices or materials to make explosive devices, where the materials are

possessed with the intent to make explosive devices.”

                                         DISPOSITION

       Probation condition No. 11 should be modified as follows: “Neither knowingly

possess, nor knowingly have under your control, any dangerous or deadly weapons or

explosive devices or materials to make explosive devices, where the materials are

possessed with the intent to make explosive devices.” In all other respects, the judgment

is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                              RAMIREZ
                                                                                        P. J.


We concur:

HOLLENHORST
                          J.

McKINSTER
                          J.




                                           14
