Filed 10/16/13 P. v. Harrison CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. ANGELA MARIE HARRISON, Defendant and Appellant. A138258
(Napa County Super. Ct. No. CR162397)

ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]

THE COURT 1 :

The opinion filed October 7, 2013, is hereby modified as follows:

1. On page 6, the last senten ce of the opinion is deleted, and three sentences are added, which read:

The condition of defendant’s manda tory supervision barring her from possessing weapons is modified as follows : “Do not own or possess any firearm, ammunition or other deadly or dangerous weapons.” (Italics added.) As modified the judgment is affirmed.

1 Before Dondero, Acti ng P. J., and Banke, J.Defendant’s petition for reh earing is hereby denied.
There is no change in judgment.

Dated: __________

___________ ____ ____________ __________ Dondero, Acting P. J.3 Filed 10/7/13 (unmodified version) NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. ANGELA MARIE HARRISON, Defendant and Appellant. A138258
(Napa County Super. Ct. No. CR162397)

In this appeal, defendant Angela Marie Harrison challenges conditions of probation imposed by the trial court after sh e entered a no contest plea to one felony count, Penal Code section 118, subdivision (a) (perjury in an application for assistance). 2 The appeal is after a final judgment. Ther e is no certificate of probable cause in the matter. The appeal is pursuant to section 1237. After review of the matter, we find no
merit in defendant’s claims and affirm.
S TATEMENT OF THE C ASE On January 18, 2013, the Di strict Attorney of Napa Co unty filed an information charging defendant with five co unts of perjury by false applic ation for aid, a violation of Penal Code section 118, subdivision (a), and one count of obtaining aid by misrepresentation, a violation of Welf are and Institutions Code section 10980, subdivision (c)(2). The informat ion also alleged defendant ha d served a prior prison term in violation of Penal Code section 667.5, subdivision (b).

2 All further statutory references are to the Penal Code unless otherwise indicated.4 On January 29, 2013, based on a negotiated plea, defendant pled no contest to one count of perjury and admitted she had served a prior prison term. The district attorney dismissed the remaining counts of the information. On February 28, 2013, the court sentenced defendant to an aggr egate term of two years. The sentence imposed included a one-year jail term to be served consecutiv ely with a sentence defendant was already serving, and a one-year term in a mandatory supervision program. On March 26, 2013, defendant f iled a timely notice of appeal.
S TATEMENT OF THE F ACTS From November 2009 through May 2010, defendant collected $1,941 in cash assistance and $537 in food stamps. She claimed the m oneys based on the representation she had full custody and was the care give r for her child. On October 25, 2010, defendant admitted to an investigator for Na pa County Health an d Human Services she did not provide full care or custody for her child during the relevant period when she obtained public assistance.
D ISCUSSION
I. The Weapon Prohibition Cond ition Should Be Modified. As part of the sentence, the trial court imposed the following condition of mandatory supervision: “Do not own or possess any firearm, ammunition or other weapon.” Defendant now argu es this condition is vague because the condition does not specify what objects would be “other weapon[ s].” Also, she argues the provision does not contain an express requirement that defendant knowingly violate the weapons
condition. She asks the condition be modi fied to prohibit “ knowingly” owning or possessing any object that she “intends” to use as a weapon. The Attorney General concedes the condition imposed he re needs to be modified. Our current sentencing law provides th at instances of mandatory supervision include conditions applicable to probation. (§ 1170, subdivision (h)(5)(B)(i).) Any probation condition must include “fair warning.” ( In re Sheena K. (2007) 40 Cal.4th 875, 890.) A condition of probation is not impermissibly vague if it is specific enough to inform a person how to comply with the obligation and perm it a court to assess whether5 the condition has been violated. ( Ibid. ) Conditions that require a probationer to guess whether he or she may be potentially viola ting probation do not provi de fair warning and are deemed constitutionally vague. ( People v. Moore (2012) 211 Cal.App.4th 1179, 1184.) In her brief, defendant argues the cond ition here would have the potential to preclude possession of “butter knives, broomstic ks, [and] pencils.” The Attorney General
concedes the condition should be modified to bar po ssession of “deadly or dangerous weapons.” This modification provides the pr obationer with a clear understanding of what violates the weapons condition prohibition. It provides a commons ense understanding: “[I]t prohibited possession of items specifically designed as weapons, and other items not specifically designed as weapons that the pr obationer intended to use to inflict, or threaten to inflict, great bo dily injury or deat h. [Citation.] The condition [is] . . . ‘sufficiently precise for [the probationer] to know what is required of [her].’ ” ( People v. Moore, supra, 211 Cal.App.4th at p. 1186; In re R.P. (2009) 176 Cal.Ap p.4th 562, 566– 567.) This modification acknowledges the fact that items like butter knives, broomsticks, and pencils become deadly or dangerous weapons when used by a probationer with a criminal purpose. Any we apon, maliciously used, can be a deadly or dangerous weapon. ( People v. Aguilar (1997) 16 Cal.4th 1023 , 1028–1029.) Defendant, while on probation, must appreciate the need to distance herself from items that have such sinister purposes. We do not believe it necessary to furthe r modify the probation condition to require
evidence defendant “intends” to use the item as a weapon. Such proof would allow a probationer to possess items otherwise impr oper because they were owned for purposes such as decoration or collectibles. Anyone on probation knows that supervision is a privilege; it triggers legal limitations because probation seeks to avoid future misconduct. We also do not believe it necessary to re mand the case back to the trial court to impose a scienter condition regard ing weapons. Other districts have decided, as a matter of law, a probationer cannot be punished fo r possession, association, or other conduct6 without proof of scienter. ( People v. Patel (2011) 196 Cal.App.4th 956, 960 [Third District]; People v. Moore, supra 211 Cal.App.4th 1179, 1189 [Second District].) Applying this scienter requirement by imp lication to a probation condition negates the need for unnecessary review of probation challenges in the future and saves the courts
considerable funds in our di fficult budgetary times. It also preserves the rights of probationers generally from making future ch allenges when the lega l principle involved
is obvious.
II. Defendant’s Challenge to the Search Condition Is Forfeited and Meritless. Besides the weapons condition, the tria l court imposed the following mandatory supervision condition: “Submit your person, re sidence, vehicle and property to search and seizure by a Probation Office r or any law enforcement offi cer, at any time of the day or night, with or without a warrant, and with or without reasonable suspicion. Contraband seized by the Probation Officer shall be disposed of, stored or returned at the
discretion of the Probation Officer.” At the time the conditi on was imposed by the sentencing judge, defendant did not object on the record to the condition. Generally, a defendant must object to a ny probation condition at sentencing. ( In re Sheena K., supra, 40 Cal.4th at p. 880.) The waiver rule applies in sentencing as in other aspects of the criminal law. If a conditi on is not acceptable or is unreasonable, the
trial court should be able to hear the ob jection and make a ruling based on the court’s view of the relationship of the condition to th e offense or the histor y of the individual. ( People v. Welch (1993) 5 Cal.4th 228, 230, 233–234.) Timely objection is critical. ( Id. at pp. 234–235.) Probation conditions are ra rely invalidated if not challenged when imposed, and appellate courts are not the foru m best suited for assessing the propriety of particular conditions. ( Id. at p. 236.) A legal exception to this principle of wa iver is the claim the condition is invalid on its face. However, a facial challenge is no t presented here. Defendant contends the conditions of search do not apply based upon the criminal offense—perjury. She raises a direct challenge to the reasonableness of th e condition. However, a failure to object at sentencing precluded the trial court from articul ating the reasons for the condition. We7 can safely say the search condition challenge d is among the most common features of a probationary sentence designed to foreclos e situations triggering future criminal conduct—it is a condition that encourages keeping one’s nose “clean” during the probation period. On the merits, the sear ch condition acknowledges the discretion a trial court enjoys to do justice, encour age rehabilitation of the probati oner, and protect the public. ( People v. Brandão (2012) 210 Cal.App.4th 568, 574.) This condition has been especially recognized as a means to reduce recidivism and foster rehabilitation. ( People
v. Robles (2000) 23 Cal.4th 789, 79 5.) In this particular case, the probation report
indicated defendant had a hist ory of drug use, especially methamphetamine addiction. Her criminal history in the report suggested defendant may have violated criminal laws because of her drug usage. In the probation report, since 2006, defendant has been convicted of receiving stolen pr operty, grand theft, petty thef t with a prior conviction, and
auto theft. Each conviction was sustained on separate instances. At the time of this sentencing, defendant had received a state prison commitm ent on February 1, 2011. The probation officer recommended the search cond ition in the report prep ared for the trial
court. Defendant advised he r probation officer she no longe r had a child residing with her because of drug usage. The probation report describes defendant as a person with “a high risk to reoffend.” Harrison is a clas sic model of a probationer needing the search
condition to curb criminal beha vior. Needless to say, she sa tisfied the factors suggested
in People v. Lent (1975) 15 Cal.3d 481, 486. 3

III. There Is No Evidence of Ineffective Assistance of Counsel. In a supplemental brief filed rece ntly, appellate counsel challenges the performance of trial counsel based on the Si xth Amendment. The focus of deficient performance was in the failure to object to the search cond ition for the probationer. We have already indicated our belief the cond ition was obviously appropriate in this

3 Superseded on another ground as stated in People v. Brandão, supra , 210 Cal.App.4th at page 574, footnote 2.8 situation. It is difficult to believe even an advocate on appeal would contend a search condition did not apply in this case. A review of the proceedings below indi cates trial counsel focused on the weapons
condition. One assumes that c ondition was the one he felt more appropriate to challenge. As to the search condition, we have alrea dy pointed out it is a st andard and recognized
condition in matters where theft crimes and dr ug usage are present—like this case. It was recommended by the probation officer in her re port as a necessary condition. To this panel, it would be most unlikely that a comp etent trial judge would refrain from imposing the condition here. It is simp ly not a basis for deeming trial counsel ineffective from a Sixth Amendment perspective. In summary we affirm the judgment here.

_ ____________ ____________ Dondero, Acting P. J.

We concur:

_____________ ____________ Banke, J.

_____________ ____________ Sepulveda, J. 

 Retired Associate Justice of the Co urt of Appeal, First Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the Ca lifornia Constitution.