Opinion
A148404
05-25-2017
THE PEOPLE, Plaintiff and Respondent, v. DALE LIONELL MARK, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. Nos. 15-NF-000728-A, SC083248A)
Defendant was charged in two separate cases with various felonies and misdemeanors. In his first case, he pleaded no contest to one count of second degree burglary and one count of grand theft. He also admitted nine prison priors and one felony conviction within the meaning of Penal Code section 1203, subdivision (e)(4). In his second case, defendant pleaded no contest to one count of receiving a stolen vehicle. Defendant received a split sentence, and the court imposed various mandatory supervision conditions. He contends the condition proscribing his ownership or possession of dangerous or deadly weapons including firearms and ammunition is unconstitutionally vague because it lacks an express knowledge requirement. Subsequent to defendant's filing of his opening brief, our Supreme Court rejected this claim in People v. Hall (2017) 2 Cal.5th 494 (Hall). Under the authority of Hall, we affirm.
"A split sentence is a hybrid sentence in which a trial court suspends execution of a portion of the term and releases the defendant into the community under the mandatory supervision of the county probation department. Such sentences are imposed pursuant to Penal Code section 1170, subdivision (h)(5)(B)(i), a provision originally adopted as part of the '2011 Realignment Legislation addressing public safety.' (Criminal Justice Realignment Act of 2011 (Realignment Act), operative Oct. 1, 2011, as added by Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1.)" (People v. Camp (2015) 233 Cal.App.4th 461, 464, fn. 1.)
I. FACTUAL AND PROCEDURAL BACKGROUND
As the facts of the underlying crimes are not important to resolving any issues in this appeal, it is unnecessary to recount them.
An information was filed on May 15, 2015, in case No. SC083248A, charging defendant with two counts of second degree burglary (Pen. Code, § 460, subd. (b)), vandalism (§ 594, subd. (b)(2)(A)), and grand theft of personal property (§ 487, subd. (a)), with an allegation that one of the burglary counts and the grand theft count occurred while defendant was on bail or released on his own recognizance (§ 12022.1). It was further alleged that defendant had sustained 25 prior felony convictions within the meaning of section 1203, subdivision (e)(4), and 16 prison priors within the meaning of section 667.5, subdivision (b).
All statutory references are to the Penal Code unless otherwise indicated.
A separate amended information was subsequently filed on March 14, 2016, in case No. 15-NF-000728-A, charging defendant with unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)), while on bail or on his own recognizance (§ 12022.1). It was further alleged that defendant had sustained 26 prior felony convictions within the meaning of section 1203, subdivision (e)(4), and 16 prison priors within the meaning of section 667.5, subdivision (b). The information also charged defendant with two counts of misdemeanor theft (§ 490.2) and receiving a stolen vehicle (§ 496d, subd. (a)).
In case No. SC083248A, pursuant to a negotiated agreement, defendant pleaded no contest to one count of second degree burglary and one count of grand theft. Additionally, he admitted serving nine prior prison terms within the meaning of section 667.5, subdivision (b) and one prior felony conviction within the meaning of section 1203, subdivision (e)(4)). Over seven months later, defendant entered into a negotiated agreement in case No. 15-NF-000728-A, pleading no contest to receiving a stolen vehicle.
In the consolidated sentencing proceeding, defendant was sentenced in case No. SC083248A to two years for the commercial burglary with eight months consecutive for the grand theft. The court also imposed an additional four years consecutive based on four of the admitted state prison priors. To that sentence, the court added eight months consecutive as to the receiving a stolen vehicle conviction for a total sentence, in both cases, of seven years four months. Under section 1170, subdivision (h)(5)(B), the court imposed a split sentence of four years four months in county jail, followed by three years on mandatory supervision under section 3451, subdivision (a).
Though the court imposed an eight-month consecutive sentence for receiving a stolen vehicle in case No. 15-NF-000728-A, we note the abstract of judgment erroneously indicates this sentence was imposed concurrent to the sentence in case No. SC083248A. The abstract of judgment shall be corrected to impose an eight-month sentence consecutive to the sentence imposed in case No. SC083248A.
As relevant here, the court ordered as one of the conditions of mandatory supervision: "You'll not own or possess any dangerous weapons, including firearms and ammunition." Moreover, the clerk's minute order stated: "Defendant shall not own or possess dangerous or deadly weapons and/or firearms or ammunition."
We see no significant difference between the court's oral weapons condition and the similar condition reflected in the clerk's minute order. We also note defendant's focus appears to be on the phrase "dangerous or deadly weapons."
Defendant filed a timely appeal in both cases.
II. DISCUSSION
Defendant asserts the weapons condition imposed by the trial court is unconstitutionally vague because it lacks the requisite mens rea—knowledge. Absent a further description of "dangerous or deadly weapons," and in the absence of an express knowledge requirement, defendant maintains, the weapons-related condition is "particularly problematic."
After defendant filed his opening brief, our Supreme Court definitively decided this issue in Hall, supra, 2 Cal.5th 494. There, the trial court imposed weapons and drug conditions on a defendant who was convicted of drug charges. (Id. at pp. 497-498.) The weapons condition provided that the defendant " 'may not own, possess or have in [his] custody or control any handgun, rifle, shotgun, or any firearm whatsoever or any weapon that can be concealed on [his] person.' " (Id. at p. 498.) The defendant challenged the weapons condition for the first time on appeal, asserting it was unconstitutionally vague, and the Court of Appeal "considered whether the vagueness doctrine requires a probation condition to explicitly spell out the mens rea necessary to sustain a violation of the condition." (Ibid.) It concluded the firearms condition "did not need to be modified to bar 'knowing' possession 'because the means rea generally applicable to probation conditions precludes the finding of unwitting violations.' " (Ibid.)
The Supreme Court also considered whether a drug condition was unconstitutionally vague, finding it was not; however, this specific condition is not an issue in this present appeal. --------
Our Supreme Court agreed with the Court of Appeal, holding that because "California case law already articulates not only a general presumption that a violation of a probation condition must be willful, but also specifically provides that probation conditions barring possession of contraband should be construed to require knowledge of its presence and its restricted nature." (Hall, supra, 2 Cal.5th at p. 501.) The court went on to state: "The requisite scienter for these probation conditions is thus easily ascertainable by reference to ' "other definable sources" ' that make sufficiently clear the conditions' scope." (Ibid.) Ultimately, the Supreme Court concluded: "Because no change to the substance of [the weapons condition] would be wrought by adding the word 'knowingly,' we decline defendant's invitation to modify [that condition] simply to make explicit what the law already makes implicit." (Id. at p. 503, fn. omitted.)
Under Hall, we therefore conclude the weapons probation condition prohibiting defendant from owning or possessing dangerous or deadly weapons, including firearms and ammunition is not unconstitutionally vague and need not be modified.
Acknowledging that Hall disposes of his mens rea contention made in his opening brief, defendant nonetheless claims, for the first time in his reply brief, that the condition should be modified "to give defendant fair warning that ordinary objects may, depending upon his state of mind, constitute dangerous or deadly weapons, the possession of which could result in a violation of his probation." To this end, he posits the weapons condition should be modified to read: "Defendant shall not own or possess firearms, ammunition, or any object he intends to use as a weapon." "It is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party." (People v. Tully (2012) 54 Cal.4th 952, 1075.) In any event, defendant's claim is unavailing.
The meaning of the term "dangerous or deadly weapons" has been explained clearly in case law. In People v. Henderson (1999) 76 Cal.App.4th 453, the court stated: "In . . . People v. Simons (1996) 42 Cal.App.4th 1100, the court was asked to decide whether a screwdriver could be a deadly weapon under section 417.8. [Citation.] The Simons court began its analysis by reciting the long-standing distinction between weapons that are inherently deadly or dangerous and those that are deadly or dangerous based on the facts of the particular case: ' " ' There are, first, those instrumentalities which are weapons in the strict sense of the word, and, second, those instrumentalities which are not weapons in the strict sense of the word, but which may be used as such. The instrumentalities falling in the first class, such as guns, dirks and blackjacks, which are weapons in the strict sense of the word and are "dangerous or deadly" or others in the ordinary use for which they are designed, may be said as a matter of law to be "dangerous or deadly weapons." This is true as the ordinary use for which they are designed establishes their character as such. The instrumentalities falling into the second class, such as ordinary razors, pocket-knives, hatpins, canes, hammers, hatchets and other sharp or heavy objects, which are not weapons in the strict sense of the word and are not "dangerous or deadly" to others in the ordinary use for which they are designed, may not be said as a matter of law to be "dangerous or deadly weapons." When it appears, however, that an instrumentality other than one falling within the first class is capable of being used in a "dangerous or deadly" manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe its character as a "dangerous or deadly weapon" may be thus established, at least for the purposes of that occasion.' " ' " (Id. at pp. 467-468.)
There is no dispute a person of ordinary intelligence would know the character of instrumentalities of the first class, i.e., inherently dangerous objects such as guns, and therefore their possession and use would be forbidden by the weapons condition. Similarly, it is apparent an ordinary household object, such as a steak knife, while not dangerous or deadly when used for its designed purpose, becomes so if the user tries to stab someone. A person of ordinary intelligence would understand this, and would understand his or her ownership or possession of an ordinary object would run afoul of the weapons condition only if, and at the time, the use of the object could reasonably be understood as reflecting an intention to use it in a deadly or dangerous fashion. In short, because the phrase "dangerous or deadly weapons" has a plain, commonsense meaning, we reject defendant's claim the weapons condition should be modified to include "any object [defendant] intends to use as a weapon."
III. DISPOSITION
The trial court is ordered to prepare an amended abstract of judgment with service to all appropriate agencies in case No. 15-NF-000728-A to reflect the following modification: the eight-month sentence for receiving a stolen vehicle shall run consecutively to the sentence imposed in case No. SC083248A. In all other respects, the judgment is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Banke, J.