People v. Wilson CA6

Filed 8/21/14 P. v. Wilson CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040313 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1362290)

v.

GRANT WILSON, JR.,

Defendant and Appellant.

I. INTRODUCTION After his motion to suppress evidence was denied, defendant Grant Wilson, Jr., pleaded no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and possession of narcotics paraphernalia (Health & Saf. Code, § 11364.1), and he was placed on Proposition 36 probation for two years. One of his probation conditions provided: “You shall not possess or consume any alcohol or illegal drugs including marijuana, . . . nor shall you knowingly go to places where those items are being offered for sale or being consumed.” On appeal, defendant contends the trial court erred by denying his motion to suppress evidence, claiming he was subjected to an unlawful pat search. Defendant also contends the probation condition concerning alcohol and drugs is unconstitutionally vague because it lacks an express knowledge requirement. The Attorney General

concedes that an express knowledge requirement should be included in the probation condition. We will modify the probation condition and affirm the judgment as modified.

II. BACKGROUND A. Defendant’s Detention On July 30, 2013, at about 3:25 a.m., San Jose Police Officer Joseph Carrott saw defendant in the area of First Street and Edwards Avenue, which is a high crime, commercial area with a lot of abandoned buildings. Defendant was riding a bicycle without a forward-facing light, in violation of Vehicle Code section 21201, subdivision (d)(1).1 Officer Carrott initiated a stop by using his patrol car’s spotlight. When stopped, defendant “appeared very nervous.” “He began looking around behind him and [in] different directions up and down the street. And then he began crying.” Based on defendant’s behavior, Officer Carrott believed defendant was either “looking for a way to run or weighing his options of whether to run or fight [the officer].” Officer Carrott was concerned for his safety, particularly because he was close to defendant and because defendant was “wearing very bulky clothing,” which might have concealed a “weapon, knife, gun.” Specifically, defendant was wearing two jackets and cargo pants. Officer Carrott instructed defendant to “step away from his bicycle,” and he performed a “pat-frisk search of him,” looking for weapons. In defendant’s pocket, Officer Carrott felt a methamphetamine pipe. After defendant admitted it was a