People v. Wheeler CA6

Filed 4/20/15 P. v. Wheeler CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H041031 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. F26738)

v.

ELIZABETH WHEELER,

Defendant and Appellant.

I. INTRODUCTION Defendant Elizabeth Wheeler appeals after pleading guilty to possession of heroin (Health & Saf. Code, § 11350, subd. (a)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), misdemeanor possession of a smoking device (Health & Saf. Code, § 11364.1, subd. (a)), and misdemeanor destruction or concealment of evidence (Pen. Code, § 135). Defendant was placed on probation for three years, with the condition that she serve 90 days in county jail, with 26 days of credit for time served. She was also ordered not to “frequent places where alcohol is [the] chief item of sale” and not to “associate with persons whose behavior might lead to criminal activities.” On appeal, defendant contends that the probation conditions barring her from frequenting places where alcohol is the chief item of sale and associating with persons whose behavior might lead to criminal activities are vague and/or overbroad. Defendant

also argues that she is entitled to 26 days of presentence conduct credit under Penal Code section 4019. The Attorney General concedes both issues. We will modify the probation condition barring defendant from “frequent[ing] places where alcohol is [the] chief item of sale,” and we will strike the probation condition barring her from “associat[ing] with persons whose behavior might lead to criminal activities.” We will also modify the judgment to award defendant 26 days of presentence conduct credit. II. BACKGROUND On the morning of April 26, 2014, Deputy Sheriff Matthew Pursley was on patrol when he saw a white Ford Explorer pull out in front of him. A routine computer check showed that the vehicle’s registration had expired, though it had current registration tags. Deputy Pursley pulled the vehicle over. Two of the four occupants were on “searchable probation” for narcotics offenses. Deputy Pursley had all four occupants step out of the vehicle. Defendant consented when Deputy Pursley asked if he could search her for weapons, whether he could search her pockets, and whether he could search her fanny pack. In the fanny pack, he found a small plastic bag containing a black sticky substance that looked like black tar heroin. A later test showed “[p]resumptive positive” for heroin. Deputy Pursley handcuffed defendant and put her in the back of a patrol car next to Nathan Young, who was not handcuffed. Defendant asked Young to remove a small packet of methamphetamine from defendant’s bra so that jail staff would not find it, but officers observed this and seized the packet. Deputy Pursley searched defendant’s backpack, which he found in the vehicle. The backpack contained a used methamphetamine smoking pipe. Defendant was charged with possession of heroin (count 1; Health & Saf. Code, § 11350, subd. (a)), possession of methamphetamine (count 2; Health & Saf. Code, § 11377, subd. (a)), misdemeanor possession of a smoking device (count 3; Health & Saf.