P. v. Tallerino
P. v. Tallerino
Filed 9/19/12 P. v. Tallerino CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
Plaintiff and Respondent,
Defendant and Appellant.
2d Crim. No. B235855
Tallerino appeals from the order revoking his probation and ordering the
execution of a previously suspended five-year prison sentence. (Pen. Code, § 1203, subd. (a).) He contends that the probation condition
prohibiting his ownership, use or possession of "any type of toy, video
game or similar item designed for the purpose of entertainment/attraction of
children, without the approval from the probation officer" is
unconstitutionally vague and overbroad, and that there is not sufficient
evidence to support the trial court's finding that he violated probation. We conclude that appellant waived the
constitutional claim because he failed to appeal the order which imposed the
challenged probation condition, and he did not challenge it at sentencing. We affirm.
worked in a restaurant for several years.
He met the 14-year-old victim there, when he was 48 years old. She declined his invitation to go out with
him. She did, however, accept gifts with
a collective value of more than $2,500 from appellant. The gifts included an iPhone, clothing,
jewelry, and a gift certificate.
February through early June 2010, appellant sent the victim frequent text
messages. Several said, "I love you
babe." She thought he was
"weird," but tolerated him because he gave her gifts. In sending an electronic Victoria's
Secret $150 gift certificate to her, appellant included a message that said,
"I hope you buy something nice for only my eyes to see." He also sent the victim a photograph of a
bed, with a caption that read, "Hopefully you can be here soon." He delivered clothing gifts to her bedroom
window one night. She accepted them and
sent him away. The text message he sent
the next day said, "You didn't let me come in. Maybe next time." On three occasions, he met the victim at her
school, and brought her lunch.
June 3, 2010, La Verne
Police Department officers found appellant in his parked truck, waiting to meet
the victim outside her school. There
were red roses and a bag with soda, snack food and candy, on the truck's front
seat. A black bag in the truck held a
loaded .38-caliber revolver. Officers
later found a computer and a bill for the victim's iPhone in appellant's
home. An analysis of the computer
disclosed that appellant had visited websites with multiple images of nude
children "engaged in sexual acts."
prosecution filed an eleven-count felony complaint against appellant. On September
30, 2010, he pleaded no contest to five counts: possession of
matter depicting minors engaging in sexual conduct (§ 311.11, subd. (a)); sending harmful matter to a minor (§ 288.2,
subd. (a)); annoying and molesting a
child (§ 647.6, subd. (a)(1)); carrying
a loaded firearm (former § 12031, subd. (a)(1)); and meeting a minor for
lewd purposes (§ 288.4, subd. (b)). On
November 4, 2010, pursuant to the terms of a negotiated plea, the court
sentenced appellant to state prison for five years four months; suspended
imposition of sentence; placed him on formal probation for five years, on
multiple conditions, including the condition to which he now objects. It dismissed the six remaining counts.
July 12, 2011, the
prosecution filed a motion asking the court to revoke appellant's
probation. The court conducted probation
revocation proceedings on August 26,
2011. Los Angeles County
Sheriff Deputy Timothy Tallez testified that he participated in a probation
compliance search of appellant's home on July
8, 2011. Officers found a
remote controlled airplane and a stuffed, furry, battery-operated, dancing,
singing gopher toy in his bedroom. They
also found ammunition and pornographic materials in a drawer under his
brother, Terry Tallerino, testified that he had removed items that appellant
could not possess, including guns, from appellant's bedroom in 2010, before his
release from jail. When Terry removed
those items, he did not see the ammunition or pornographic materials that
officers found in appellant's drawer in July 2011. Terry did not think that the dancing, singing
gopher toy, based on a character in the Caddyshack
movie, was a child's toy.
trial court heard argument regarding appellant's knowledge of the items
recovered from his drawer. His counsel
also asserted that the gopher toy was designed to appeal to adults rather than
children, and that adults use remote-controlled airplanes. The court cited the probation report's
reference to appellant's statement during the search that he should have been
more thorough. Appellant had stated,
"I should have done a better job cleaning out my room." The court noted that the "furry little
creature in the box, akin to a little teddy bear . . . let alone its ability to
dance, sing and wiggle its hind end" was in plain view in appellant's
bedroom. It made no "specific
finding as to whether the ammunition" recovered from appellant's bedroom
showed that he had violated probation.
The court found that the "dancing gopher [met] the specific classic
definition of a toy designed for the purpose of entertainment and attraction to
children[,]" and that appellant had violated probation by possessing that
toy. It then imposed appellant's
previously suspended state prison sentence.
Appellant claims that the probation condition prohibiting
his ownership, use or possession of "any type of toy, video game or
similar item designed for the purpose of entertainment/attraction of children,
without the approval from the probation officer" is unconstitutionally
vague and overbroad. Appellant has
waived the claim.
"[A] defendant who elects not to appeal an order
granting . . . probation cannot raise claims of error with respect to the grant
. . . of probation in a later appeal from a judgment following revocation of
probation." (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.) Because appellant did not appeal from the November 4, 2010, order granting
probation, he cannot challenge the conditions imposed pursuant to that order in
this appeal from the August 26, 2011,
order revoking his probation. (Ibid.)
In claiming that he can challenge the constitutionality
of his probation conditions in this appeal, appellant cites In re Sheena K. (2007) 40 Cal.4th 875,
887-889. His reliance on Sheena K. is unavailing. Unlike appellant, Sheena K. did not wait
until her probation was revoked to challenge a probation condition. She appealed from the order which imposed
that condition and challenged its constitutionality for the first time on
appeal. (Id. at p. 878.) In that
context, our supreme court concluded that "a challenge to a term of
probation on the ground of unconstitutional vagueness or overbreadth that is
capable of correction without reference to the particular sentencing record
developed in the trial court can be said to present a pure question
of law" and may thus be reviewed on appeal absent an objection in the
trial court. (Id. at p. 887.) Appellant
cites no authority to support his claim that he can challenge a condition of
probation following the revocation of probation, although he did not appeal the
order which imposed that condition and raise his claim in the sentencing court. (Compare People
v. Ramirez, supra, 159 Cal.App.4th at p. 1421.)
further contends that there is not sufficient evidence to support the finding
that he violated probation by possessing the furry, singing, dancing Caddyshack gopher toy and the
remote-controlled airplane toy. We
apply the substantial evidence standard when reviewing a trial court's finding
of a probation violation. (People v. Kurey (2001) 88 Cal.App.4th
840, 848.) In deciding the sufficiency
of the evidence, we draw all reasonable inferences from the record in support
of the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "The standard of proof required for
revocation of probation is a preponderance of evidence to support the
violation. [Citation.] Trial courts are granted great discretion in
deciding whether or not to revoke probation.
[Citation.] 'Absent abuse of that
discretion, an appellate court will not disturb the trial court's
findings.' [Citation.]" (People
v. Kelly (2007) 154 Cal.App.4th 961, 965.)
trial court found that appellant violated his probation by possessing a
"toy, . . . designed for the purpose of entertainment/attraction of
children, without . . . approval from the probation officer." The evidence, viewed in the light most
favorable to the judgment, supports its finding.
argues that there was insufficient evidence to prove that he violated his
probation by possessing a toy "designed for the purpose of entertainment
[or] attraction to children" because the Caddyshack gopher toy was
"marketed in connection with [an] adult movie" and, as the trial
court recognized, it could attract adults as well as children. His argument is not persuasive. It is premised on the illogical assumption
that appellant is only prohibited from possessing toys that are designed to
appeal exclusively to children. The
evidence supports the trial court's conclusion that a child's attraction to a
furry, dancing animal toy would not be diminished merely because it also
and was marketed in connection with an adult movie. Substantial evidence supports the court's
finding that appellant violated his probation by possessing that toy.
order is affirmed.
TO BE PUBLISHED.
Court County of Los Angeles
Alan Cohan, under appointment by the Court of Appeal, for Defendant and
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, James William
Bilderback II, Supervising Deputy Attorney General, Alene M. Games, Deputy
Attorney General, for Plaintiff and Respondent.
All statutory references are to
the Penal Code unless otherwise stated.
The substance of former section 12031,
subdivision (a)(1), is now in section 25850, subdivision (a).