Filed 12/3/14 P. v. Wilson CA6

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039970
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1234091)

         v.

JASON ZYNN WILSON,

         Defendant and Appellant.



         Defendant Jason Zynn Wilson appeals from a judgment of conviction entered after
he pleaded guilty to possession of marijuana for sale (Health & Saf. Code, § 11359) and
misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (a)). The trial
court sentenced defendant to 16 months in county jail, suspended execution of sentence,
and placed him on probation for two years subject to various terms and conditions. On
appeal, defendant contends: (1) the trial court erred when it denied his motion to
suppress evidence; (2) trial counsel rendered ineffective assistance; (3) two of the
probation conditions were unconstitutional; and (4) the trial court failed to determine his
ability to pay a supervised probation fee. We reverse the judgment and remand for
compliance with Penal Code section 1203.1b and modification of one of the probation
conditions.
                                   I. Statement of Facts
        At about 8:00 p.m. on June 5, 2012, Deputy Adam Guzman was on patrol in a
marked patrol vehicle when he noticed defendant riding his motorized scooter. The
deputy drove behind defendant for about 50 yards and then honked his horn for “one
second,” because the scooter was loud and he wanted to get defendant’s attention.
According to the deputy, it was not a standard car horn and produced a sound similar to
an air horn. Defendant turned and looked at the deputy. Deputy Guzman did not activate
either his emergency lights or his sirens. He also did not shout at defendant, give him
any orders, or make any movements indicating that he wanted defendant to pull over.
After defendant pulled over to the right shoulder of the road, Deputy Guzman notified
dispatch that he was making contact with an individual and parked his vehicle about 15
feet in front of defendant. The patrol vehicle did not prevent defendant from driving
away.
        Deputy Guzman exited his vehicle, approached defendant, and asked him in a
conversational tone of voice if he could speak to him. Defendant said, “Sure. Go ahead.”
Defendant also asked, “What is this about?” Deputy Guzman responded, “Nothing. I
just wanted to talk to you.” The deputy also told defendant that “people possibly could
complain about the noise.” He then asked defendant if he had a driver’s license, and
defendant handed him a California identification card. While Deputy Guzman was
standing next to defendant, he requested County Communication to run a DMV check.1
        Deputy Munns arrived at the scene, parked his vehicle to the right of Deputy
Guzman, and stood to the right of Deputy Guzman and about two feet away from
defendant. Deputy Munns asked defendant if he had any weapons. Defendant replied
that he had a knife and gave Deputy Munns permission to retrieve it. Neither deputy had
handcuffed defendant, told him that he was under arrest or drawn their service weapons.

1
      Deputy Guzman was unaware at the time that it was a violation of the Vehicle
Code to drive a motorized scooter without a license.
                                             2
Deputy Munns retrieved the knife and asked defendant if he could search him. Neither
deputy told defendant that if he did not consent to the search that he would be arrested.
They also did not tell defendant that they could get a search warrant. After defendant
gave his consent to a search, Deputy Munns felt a container in defendant’s right front
pocket. When defendant told him that it contained marijuana, Deputy Munns asked if he
could remove the marijuana. Defendant gave his consent and the deputy removed the
marijuana. Defendant told the deputies that he had a prescription or a letter permitting
him to have medical marijuana. Deputy Guzman then asked defendant if he could search
his backpack, and defendant said no. However, Deputy Guzman searched the backpack
and found 13 to 15 plastic baggies containing marijuana and a cell phone.


                                          II. Discussion
                               A. Motion to Suppress Evidence
       Defendant contends that the trial court erred when it denied his motion to suppress
evidence. He contends that he was illegally detained in violation of his Fourth
Amendment rights when Deputy Guzman stopped him without reasonable suspicion of
criminal activity.
       The Fourth Amendment, made applicable to the states through the due process
clause of the Fourteenth Amendment, protects the individual against unreasonable
searches and seizures. (Mapp v. Ohio (1961) 367 U.S. 643, 655-660.) When a police
officer engages in conduct that violates the Fourth Amendment, the evidence obtained
through such conduct is subject to the exclusionary rule. (People v. Mayfield (1997) 14
Cal.4th 668, 760.)
       “For purposes of Fourth Amendment analysis, there are basically three different
categories or levels of police ‘contacts’ or ‘interactions’ with individuals, ranging from
the least to the most intrusive. First, there are . . . ‘consensual encounters’ [citation],
which are those police-individual interactions which result in no restraint of an
                                               3
individual’s liberty whatsoever—i.e., no ‘seizure,’ however minimal—and which may
properly be initiated by police officers even if they lack any ‘objective justification.’
[Citation.] Second, there are . . . ‘detentions,’ seizures of an individual which are strictly
limited in duration, scope and purpose, and which may be undertaken by the police ‘if
there is an articulable suspicion that a person has committed or is about to commit a
crime.’ [Citation.] Third, and finally, there are those seizures of an individual which
exceed the permissible limits of a detention, seizures which include formal arrests and
restraints on an individual’s liberty which are comparable to an arrest, and which are
constitutionally permissible only if the police have probable cause to arrest the individual
for a crime.” (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.)
       In determining whether an encounter between a police officer and an individual
constitutes a detention, we note that a “seizure does not occur simply because a police
officer approaches an individual and asks a few questions.” (Florida v. Bostick (1991)
501 U.S. 429, 434 (Bostick).) For Fourth Amendment purposes, “a person is ‘seized’
only when, by means of physical force or a show of authority, his freedom of movement
is restrained.” (United States v. Mendenhall (1980) 446 U.S. 544, 553.) “[T]o determine
whether a particular encounter constitutes a seizure, a court must consider all the
circumstances surrounding the encounter to determine whether the police conduct would
have communicated to a reasonable person that the person was not free to decline the
officers’ requests or otherwise terminate the encounter.” (Bostick, at p. 439.) “[E]ven
when officers have no basis for suspecting a particular individual, they may generally ask
questions of that individual [citations]; ask to examine the individual’s identification
[citations]; and request to search his or her luggage [citation]—as long as the police do
not convey a message that compliance with their requests is required.” (Bostick, at
pp. 434–435.) “Circumstances establishing a seizure might include any of the following:
the presence of several officers, an officer’s display of a weapon, some physical touching
of the person, or the use of language or of a tone of voice indicating that compliance with
                                              4
the officer’s request might be compelled.” (In re Manuel G. (1997) 16 Cal.4th 805, 821
(Manuel G.).) “The officer’s uncommunicated state of mind and the individual citizen’s
subjective belief are irrelevant in assessing whether a seizure triggering Fourth
Amendment scrutiny has occurred.” (Ibid.)
       “ ‘The standard of appellate review of a trial court’s ruling on a motion to suppress
is well established. We defer to the trial court’s factual findings, express or implied,
where supported by substantial evidence. In determining whether, on the facts so found,
the search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment. [Citations.]’ ” (People v. Weaver (2001) 26 Cal.4th 876, 924,
quoting People v. Glaser (1995) 11 Cal.4th 354, 362.)
       Here, Deputy Guzman’s initial contact with defendant did not constitute a
detention. The deputy’s act of sounding his horn momentarily was not constitutionally
different from a deputy’s call to a person to get his attention. (Manuel G., supra, 16
Cal.4th at p. 811.) When defendant turned toward the deputy, the deputy did not activate
his emergency lights or siren, make any movements indicating that defendant should pull
over, or order defendant to pull over. After defendant stopped, Deputy Guzman asked
him if he could speak to him. Defendant replied, “Sure, go ahead.” When defendant
asked, “What is this about,” the deputy responded, “Nothing. I just wanted to talk to
you.” Deputy Guzman did not display a weapon or touch defendant, and he spoke to
defendant in a conversational tone of voice. Defendant voluntarily provided
identification and stood with the deputy as the information was transmitted for
verification. Defendant then consented to a search by Deputy Munns, who found the
knife and the marijuana. Thus, in considering the totality of the circumstances, the
deputies’ conduct would not “have communicated to a reasonable person that the person
was not free to decline the officers’ requests or otherwise terminate the encounter.”
(Bostick, supra, 501 U.S. at p. 439.) Accordingly, the trial court did not err when it
denied defendant’s motion to suppress evidence.
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       Defendant argues, however, that the present case is analogous to People v. Garry
(2007) 156 Cal.App.4th 1100. We disagree. In Garry, the officer turned on his patrol
car’s spotlight and shined it on the defendant, who was standing on a corner about 35 feet
away. (Id. at p. 1104.) The officer then exited his car and walked “ ‘briskly’ ” toward the
defendant, who said, “ ‘ “I live right here,” ’ ” and pointed to a nearby house. (Ibid.) The
officer responded that he wanted to confirm that, asked the defendant if he was on
probation or parole, and reached the defendant within “ ‘two and a half, three seconds’ ”
after leaving his car. (Ibid.) Garry held that, based on the officer’s very intimidating
actions, a detention occurred. (Id. at p. 1112.)
   Here, unlike shining a spotlight on a person, sounding an air horn momentarily does
not signal to a reasonable person that he or she is not free to leave. Moreover, in contrast
to Garry, Deputy Guzman did not rush toward defendant and he asked defendant whether
he could speak to him. Thus, Garry is factually distinguishable from the present case.
       Defendant also argues that the detention began when Deputy Guzman honked his
horn to effectuate a traffic stop. However, this court must consider the totality of the
circumstances surrounding the encounter. (Bostick, supra, 501 U.S. at p. 439.) As
previously discussed, these circumstances established a consensual encounter between
Deputy Guzman and defendant.


                            B. Ineffective Assistance of Counsel
       During the hearing on the motion to suppress evidence, the prosecutor elicited
testimony relating to a cell phone which was found in defendant’s backpack. Defense
counsel objected to any further questioning regarding the cell phone on the ground that
the defense was only contesting the events leading up to the search of the backpack. The
trial court sustained the objection. Text messages from the cell phone indicated that
defendant was engaged in the sale of marijuana. Evidence relating to defendant’s post-


                                              6
Miranda2 statement was also not introduced into evidence because it occurred after the
search of the backpack.
       Defendant argues that “[i]f this court believes that trial counsel failed to properly
present evidence of the text messages and post-Miranda statement [in connection with
the motion to suppress evidence], then his failure constituted ineffective assistance of
counsel . . . .” The Attorney General contends that this claim may not be reviewed on
appeal, because defendant failed to obtain a certificate of probable cause. Even assuming
that this issue may be raised on appeal, it lacks merit.
       “To prevail on a claim of ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. [Citations.] Counsel’s performance was deficient if the
representation fell below an objective standard of reasonableness under prevailing
professional norms. [Citation.] Prejudice exists where there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been different.
[Citation.]” (People v. Benavides (2005) 35 Cal.4th 69, 92-93.)
       Here, defendant has failed to establish prejudice. The text messages and post-
Miranda statement were products of the consensual encounter. Thus, even if a
reasonably competent counsel would have elicited this evidence at the hearing, it would
not have been suppressed.


                                   C. Probation Conditions
       Defendant challenges the constitutionality of two probation conditions on the
ground that they lack a knowledge requirement. Defendant argues that he could violate
his probation for accidently consuming or possessing alcohol or an illegal substance.




2
       Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
                                              7
       The trial court imposed the following probation conditions as set forth in the
probation report: “8. The defendant shall not possess or consume alcohol or illegal
controlled substances or knowingly go to places where alcohol is the primary item of
sale. [¶] 9. The defendant shall not possess or use illegal drugs or illegal controlled
substances or go anywhere he/she knows illegal drugs or non-prescribed controlled
substances are used or sold.”
       “In granting probation, courts have broad discretion to impose conditions to foster
rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.
[Citations.]” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) However, a
probation condition may be challenged on the grounds that it is unconstitutionally vague.
(People v. Lopez (1998) 66 Cal.App.4th 615, 630.) Although defendant failed to object
on constitutional grounds to these conditions, we may consider his facial, constitutional
challenges because they present purely questions of law. (In re Sheena K. (2007) 40
Cal.4th 875, 888 (Sheena K.).) Accordingly, our review of these probation conditions is
de novo. (Id. at p. 889.)
       In examining whether a probation condition is void for vagueness, courts have
considered whether the condition is “ ‘sufficiently precise for the probationer to know
what is required of him [or her] . . . .’ ” (Sheena K., supra, 40 Cal.4th at p. 890, quoting
People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.) “[T]he underpinning of a
vagueness challenge is the due process concept of ‘fair warning.’ ” (Sheena K., at p. 890.)
       In People v. Rodriguez (2013) 222 Cal.App.4th 578 (Rodriguez), the defendant
challenged a probation condition that stated: “ ‘Not use or possess alcohol, intoxicants,
narcotics, or other controlled substances without the prescription of a physician . . . .’ ”
(Id. at p. 592.) This court observed that case law had interpreted the California Uniform
Controlled Substances Act (Health & Saf. Code, § 11000 et seq.) as including an implicit
knowledge requirement. (Rodriguez, at p. 593.) As Rodriguez explained: “ ‘[A]lthough
criminal statutes prohibiting the possession, transportation, or sale of a controlled
                                               8
substance do not expressly contain an element that the accused be aware of the character
of the controlled substance at issue [citations], such a requirement has been implied by
the courts.’ [Citation.] ‘The essential elements of unlawful possession of a controlled
substance are “dominion and control of the substance in a quantity usable for
consumption or sale, with knowledge of its presence and of its restricted dangerous drug
character.” ’ ” [Citation.] ‘Although the possessor’s knowledge of the presence of the
controlled substance and its nature as a restricted dangerous drug must be shown, no
further showing of a subjective mental state is required.’ [Citation.] [¶] If a person
believes an item he possesses or ingests is a controlled substance, it is no defense that he
was wrong about which controlled substance it is. [Citations.] On the other hand, it is no
crime to ingest a drug involuntarily, for example, if someone secretly spiked the punch at
a party. [Citation.]” (Ibid.) Thus, Rodriguez reasoned that the challenged probation
condition reinforced the defendant’s statutory obligations and thus, “the same knowledge
element which ha[d] been found to be implicit in those statutes [was] reasonably implicit
in the condition.” (Ibid.)
       Here, under Rodriguez, condition Nos. 8 and 9 are violated only if defendant
knows that he possesses or uses illegal drugs or illegal controlled substances. However,
Rodriguez also concluded that since the challenged probation condition was “not limited
to substances regulated by statute, but extend[ed] to alcohol,” the addition of an express
knowledge requirement would “eliminate any potential for vagueness . . . .” (Rodriguez,
supra, 222 Cal.App.4th at p. 594.) Accordingly, the matter will be remanded for
modification of probation condition No. 8 to include a knowledge requirement because
this probation condition also extended to the possession or consumption of alcohol.
       Defendant argues, however, that this court should reject Rodriguez because it fails
to follow Sheena K., supra, 40 Cal.4th 875. Sheena K. is distinguishable from the present
case. In Sheena K., the California Supreme Court held that a probation condition that the
defendant not associate with anyone “ ‘disapproved of by probation’ ” was
                                              9
unconstitutionally vague, because it “did not notify defendant in advance with whom she
might not associate through any reference to persons whom defendant knew to be
disapproved of by her probation officer.” (Id. at pp. 890-892.) In contrast to Sheena K.,
here, as explained in Rodriguez, there are statutes and case law that would protect
defendant’s due process rights.


                                D. Probation Supervision Fee
       The trial court imposed various fines and fees, including a monthly probation
supervision fee of $50. Defendant contends that the trial court erred when it failed to
determine whether he had the ability to pay the probation supervision fee. He also
contends that the record does not support his ability to pay this fee.
       Prior to imposition of a probation supervision fee, Penal Code section 1203.1b
requires: (1) the trial court to order the defendant to report to the probation officer, who
determines the defendant’s ability to pay the fee; (2) the probation officer to inform the
defendant that he or she is entitled to a court hearing on his ability to pay the fee; and (3)
the trial court to hold a hearing to determine the defendant’s ability to pay unless the
defendant waives his right to a hearing.3
3
        Penal Code section 1203.1b, subdivision (a) provides in relevant part: “[I]n any
case in which a defendant is granted probation or given a conditional sentence, the
probation officer, or his or her authorized representative, taking into account any amount
that the defendant is ordered to pay in fines, assessments, and restitution, shall make a
determination of the ability of the defendant to pay all or a portion of the reasonable cost
of any probation supervision . . . . The court shall order the defendant to appear before
the probation officer, or his or her authorized representative, to make an inquiry into the
ability of the defendant to pay all or a portion of these costs. The probation officer, or his
or her authorized representative, shall determine the amount of payment and the manner
in which the payments shall be made to the county, based upon the defendant’s ability to
pay. The probation officer shall inform the defendant that the defendant is entitled to a
hearing, that includes the right to counsel, in which the court shall make a determination
of the defendant’s ability to pay and the payment amount. The defendant must waive the
right to a determination by the court of his or her ability to pay and the payment amount
by a knowing and intelligent waiver.”
                                              10
       Relying on People v. McCullough (2013) 56 Cal.4th 589 (McCullough), the
Attorney General argues that defendant’s failure to object to imposition of the fee
forfeited the issue on appeal.4 McCullough held that a defendant forfeits a challenge to
the sufficiency of the evidence of his ability to pay a booking fee if he has failed to object
when it was imposed. (McCullough, at p. 591.) However, McCullough also
distinguished the booking fee statute from other fee statutes, including Penal Code
section 1203.1b, on the ground that the booking fee statute lacked procedural safeguards,
which indicated “that the Legislature considers the financial burden of the booking fee to
be de minimis” making “the rationale for forfeiture . . . particularly strong.”
(McCullough, at pp. 598-599.) The imposition of procedural safeguards in Penal Code
section 1203.1b indicates that the Legislature did not consider the financial burden of the
probation supervision fee to be de minimis, thereby severely weakening the rationale for
forfeiture. Thus, we conclude that defendant has not forfeited his sufficiency of the
evidence argument regarding the probation supervision fee under McCullough.
       Here, there is no evidence that the procedures outlined in Penal Code section
1203.1b were followed. There is also nothing in the record to support an implied finding
that defendant had the ability to pay the probation supervision fee. Accordingly, the case
must be remanded.


                                       III.    Disposition
       The judgment is reversed. On remand, the trial court shall determine defendant’s
ability to pay the probation supervision fee under Penal Code section 1203.1b. The trial
4
        The California Supreme Court is currently considering the issue of whether the
failure to object to probation supervision fees in the trial court constitutes forfeiture of the
issue on appeal. (People v. Aguilar (2013) 219 Cal.App.4th 1094, review granted
Nov. 26, 2013, S213571; People v. Trujillo, review granted Nov. 26, 2013, S213687;
People v. Valenzuela (2013) 220 Cal.App.4th 159, review granted Jan. 15, 2014,
S214485, briefing deferred; People v. Povio (2014) 227 Cal.App.4th 1424, review
granted Oct. 15, 2014, S220685, briefing deferred.)
                                              11
court is also directed to modify condition No. 8 to state: “The defendant shall not
knowingly possess or consume alcohol or illegal controlled substances or knowingly go
to places where alcohol is the primary item of sale.”




                                            12
                                 _______________________________
                                 Mihara, J.



WE CONCUR:




______________________________
Elia, Acting P. J.




______________________________
Bamattre-Manoukian, J.




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