Filed 10/4/17 P. v. Gaines CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Marvin Gaines (appellant) appeals from a suspended sentence and the grant of a three-year term of formal probation following his guilty plea to a single count of being a felon in possession of a firearm, in violation of Penal Code[1] section 29800, subdivision (a)(1).

Appellant’s counsel has filed an opening brief in which no issues are raised, and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal, and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this court’s attention. No supplemental brief has been received from appellant.

We note that appellant has not obtained a certificate of probable cause, which is required by section 1237.5 when a defendant seeks to appeal from a judgment entered following a guilty or no contest plea. A certificate is not required when the notice of appeal states, as appellant’s does here, that the appeal is based upon the sentence or other matters occurring after the plea that do not affect the validity of the plea. Appellant’s notice of appeal also states that he is appealing from the denial of a motion suppress evidence made on April 11, 2016. Such an order is also reviewable on appeal following a guilty plea, pursuant to section 1538.5, subdivision (m).

Accordingly, we have reviewed the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, focusing primarily upon grounds for appeal arising after entry of the plea, and any relating to the denial of appellant’s motion to suppress evidence. Having done so, we conclude there are no arguable issues on appeal.

Procedural Background of Case

A felony complaint was filed by the San Francisco District Attorney charging appellant with six firearm-related crimes, all occurring on the same day (March 12, 2016): (1) felon in possession of a firearm (§ 29800, subd. (a)(1)), (2) convicted person concealing a firearm (§ 25400, subd. (a)(2)), (3) carrying a concealed weapon not owned by the carrier (§ 25400, subd. (a)(2)), (4) being a convicted person carrying a loaded firearm (§ 25850, subd. (a)), (5) carrying a loaded firearm (§ 25850, subd. (a)), and (6) possession of ammunition (§ 30305, subd. (a)(1)). A special allegation was included alleging that appellant had served a prior state prison sentence within the last five years, pursuant to section 667.5, subdivision (b). Appellant entered a not guilty plea denying all charges and allegations on March 15.[2]

One week later, appellant’s counsel filed a motion to suppress evidence under section 1538.5. When the matter appeared on the court’s calendar for a preliminary hearing on March 28, the prosecution exercised its authority to dismiss this first complaint based on witness unavailability, pursuant to section 1387.2. Appellant’s counsel stipulated to the “non-refiling” of a new complaint. Therefore, appellant again entered a plea of not guilty to the renewed charges and denied the special allegation. The matter was set for a preliminary hearing on April 11.

Appellant then refiled his motion to suppress evidence and set the matter for hearing, also on April 11. The prosecution filed an opposition, and the preliminary hearing and motion to suppress were heard at the same time. At the conclusion of the hearing, the court denied the motion to suppress and found probable cause to hold appellant to answer for counts 1, 2, 3, and 6, while dismissing counts 4 and 5 (being a convicted person carrying a loaded firearm (§ 25850, subd. (a)), and carrying a loaded firearm (§ 25850, subd. (a)).

Thereafter, an information was filed charging the same four crimes for which the trial court found probable cause, including being a felon in possession of a firearm (§ 29800, subd. (a)(1)), and the special allegation under section 667.5, subdivision (b). At his arraignment on April 25, appellant entered not guilty pleas to the charges in the information and denied the special allegation.

A motion to set aside the information pursuant to section 995 was filed by appellant raising essentially the same suppression grounds and relying on the same evidence as set forth in the earlier motion to suppress evidence that was denied. The motion was opposed by the prosecution. The motion was heard by the court on June 17, and denied.

A jury trial commenced on June 20, and concluded on July 8 when the court determined that the jury was deadlocked after two days of deliberation,[3] and declared a mistrial.

Before a second trial commenced, plea negotiations took place between the parties, resulting in a change of plea by appellant. Appellant agreed to plead guilty to count 1 (the § 29800, subd. (a)(1) violation) in exchange for which the imposition of sentence would be suspended and he would serve three years of probation. As a condition of probation, appellant would serve one year in county jail concurrent with an anticipated term to be imposed because of his violation of federal probation in a separate matter. In return, all remaining counts would be dismissed by the prosecution. Appellant was admonished concerning the rights he was relinquishing as a result of the plea in open court, including his agreement to be sentenced by a different judge than the judge taking the plea.[4] The court also questioned appellant to ensure that the plea was voluntarily and knowingly made.

On March 24, 2017, appellant was sentenced in accordance with the terms of the negotiated plea. The prosecution then moved to dismiss the remaining allegations and counts which was granted.

Motion to Suppress Evidence

As noted above, appellant’s motion to suppress evidence was heard at the same time as the preliminary hearing on April 11.

The first witness called by the prosecution was San Francisco Police Officer Eduardo Ochoa (Ochoa), who had been with the San Francisco Police Department (SFPD) for over eight years. On the night of March 12, he was on patrol with three other SFPD officers—Sergeant Griffin and Officers Alcarez and Johnson)—in an unmarked vehicle. All of them were in uniform. They were patrolling the Bayview area, which Ochoa described as a very high crime neighborhood. Ochoa first saw appellant that night in front of Bayview Liquors when he noticed that appellant was attempting to conceal himself behind another person, a female. As the officers moved toward the curb with their vehicle, appellant turned and retreated into the liquor store, grabbing his left waist jacket area as he did so. Ochoa had been involved in hundreds of arrests for possession of firearms, and the movement made by appellant was a common movement consistent with someone in possession of a firearm.

Ochoa went into the store and found appellant standing by a beverage case. He closed the door, turned to Ochoa, and said words to the effect that, “I’m on probation, I’m already on probation, it’s not mine, he gave it to me.” While appellant was talking, Ochoa noticed that the left side of appellant’s jacket was hanging lower than the right side, which was consistent with his belief that appellant likely had a firearm in his possession. He then detained appellant to conduct a probation search and to search for weapons. He had appellant put his hands on his head as Alcarez and Johnson approached. Alcarez reached for appellant’s jacket and said they had a “221 [sic],” which is police code for firearm possession. Appellant was then placed in handcuffs and Alcarez removed a firearm from appellant’s jacket. He also removed a high capacity 30-round magazine from appellant’s jacket. It was five to eight seconds from the time Ochoa entered the store until appellant was detained.

When appellant told Ochoa that he was on probation, Ochoa assumed a search clause was a term of that probation.

When they later arrived at the station, it was determined that the firearm was not loaded, although the magazine had ammunition in it. It was also confirmed that appellant was on federal probation.

Alcarez testified that he has been with SFPD for over 13 years. On the night of March 12 he observed appellant outside of Bayview Liquors. He did not see appellant try to conceal himself behind anyone in front of the store. Appellant saw the officers’ vehicle, and he immediately retreated back into the store. There was a large crowd of people outside the store at the time. Appellant was the only one acting suspicious. Based on appellant’s actions, Alcarez suspected he might be armed or in possession of illegal contraband.

Alcarez then went into the store and he saw Ochoa and Johnson detaining appellant. He also heard appellant say that he was on probation. Alcarez reached towards appellant’s coat and felt a firearm. Upon contact, Alcarez told the others “gun, 221 [sic].” Johnson found the magazine in appellant’s other pocket. Appellant shouted “I’m on probation” a number of times during the encounter, including before the detention began. Alcarez admitted that this statement was relevant to his decision to pat down appellant.

The court heard arguments of counsel after Alcarez was excused as a witness. The court then provided counsel with its findings and conclusion. The court began by pointing out that the furtive actions by appellant in front of the store were sufficient to justify further investigation, even if they were not sufficient alone to justify the patsearch. But, reasonable grounds to detain appellant and to conduct a search of appellant were present when these facts were added to what happened inside the store, including that: (1) when Ochoa approached appellant he announced that he was on probation and that “it” was not his but “it” was given to him, and (2) the officer noticed that the left side of appellant’s jacket was hanging down noticeably lower than the right, indicating the likely presence of a weapon. In light of these findings, the trial court denied the motion to suppress.

Conclusions Based Upon Independent Record Review

Upon our independent review of the record we conclude there are no meritorious issues to be argued, or that require further briefing on appeal.

The denial of appellant’s motion to suppress evidence was supported by the evidence and was consistent with applicable law. We also discern no error in any of the proceedings following appellant’s pleas, including sentencing. The sentence appellant received, custody credits awarded, and the restitution fines, penalties, and conditions imposed were supported by the law and facts. At all times appellant was represented by counsel.

DISPOSITION

The judgment is affirmed.

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RUVOLO, P. J.

We concur:

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RIVERA, J.

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STREETER, J.

A150958, People v. Gaines