[CERTIFIED FOR PARTIAL PUBLICATION [*]]
Santa Clara County Superior Court Superior Court No. C1369715, Hon. My-Le Jacqueline Duong
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Sejal H. Patel, under appointment by the Court of Appeal, for Defendant and Appellant.
Sharon R. Wooden, Deputy Attorney General, for Plaintiff and Respondent.
BAMATTRE-MANOUKIAN, ACTING P.J.
After his motion to suppress was denied, defendant James Edward Delapena pleaded no contest to felony possession of methamphetamine (Health & Saf. Code, former § 11377, subd. (a), count 1) and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, former § 11364.1; count 2).
Defendant was placed on Proposition 36 probation (Pen. Code, § 1210.1) for two years. The trial court imposed a number of probation conditions, including a probation condition that bars defendant from possessing or consuming illegal drugs or alcohol, and a probation condition that bars defendant from owning or possessing firearms or ammunition. The trial court also ordered defendant to pay various fees and fines, including a $50 laboratory analysis fee for each of his two convictions. (Health & Saf. Code, § 11372.5, subd. (a).)
On appeal, defendant contends: (1) the trial court erred by denying his motion to suppress because his detention was not supported by reasonable suspicion of criminal activity and his pat search was not supported by reasonable suspicion that he was armed and dangerous; (2) his conviction of felony possession of methamphetamine must be reduced to a misdemeanor pursuant to Proposition 47; (3) the word “knowingly” should be inserted into the probation conditions referenced above; and (4) one of the laboratory analysis fees must be stricken.
For the reasons stated below, we will modify the challenged probation conditions and affirm the order of probation.
A. Evidence at the Motion to Suppress
1. Testimony of Officer Stephens
Santa Clara Police Officer Peter Stephens was on duty at 5:14 a.m. on November 10, 2013, when he was dispatched to a residence near the intersection of Pierce Street and Benton Street in response to a “suspicious circumstances call.” The residence was under construction. A neighbor had observed people entering the property and had seen an unfamiliar pickup truck parked at the residence. The neighbor believed that the people might be stealing construction materials from the property. According to Officer Stephens, it is common for burglaries to occur at that time of day.
Three other police officers responded, and a fifth officer arrived later. The officers observed a pickup truck parked outside of the residence. The pickup truck had a motorcycle in the back. A female was inside the pickup truck. She told an officer that “her boyfriend was inside the residence and she didn’t know why.”
Officer Stephens and another officer decided to search the property “to make sure that there wasn’t a burglary occurring.” The officers entered the backyard through a gate, with their weapons drawn. It was dark out, so the officers used lights that were attached to their weapons. The officers saw two male subjects: defendant and Christopher Riehm. The officers asked the two men to come out of the backyard and sit on the front curb. Because the men were cooperative, the officers put their weapons back into their holsters as they walked to the front of the residence.
Officer Stephens noticed that both men were wearing baggy clothing and that they “had a lot of bulges in their pockets, ” which made him “a little concerned” about his safety. Officer Stephens was aware that people who enter construction sites to commit burglaries “often have tools and things to pry things open, ” so he was concerned that such tools “could be used as a weapon.” He therefore decided to pat search both men.
Before doing the pat searches, the officers asked the men why they were at the property. Defendant said that he was the owner of the pickup truck, that he had given Riehm a ride to the property, and that he had transported Riehm’s motorcycle as well. Riehm said that he did construction work at the property and that “he was allowed to be there.”
After speaking to the two men, Officer Stephens “still felt that there was a significant safety issue” as to himself and the other officers, so he proceeded
to pat search the two men for weapons. Officer Stephens first pat searched Riehm, who consented to the search. He then asked defendant if he had any weapons. Defendant initially said “no, ” but then he “stopped himself and said that he did have a knife in one of his pockets.” Officer Stephens asked if he could pat search defendant for weapons, but defendant said, “No.” Officer Stephens decided to conduct the pat search anyway, since defendant had admitted to possession of a weapon and because ...