P. v. Wright











Filed 11/8/10 P. v. Wright CA1/5







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. NATHAN LEE WRIGHT, JR., Defendant and Appellant.	A127252 (Contra Costa Super. Ct. No. 05-090941-6)

After denial of his motion to suppress evidence seized from his person (Pen. Code, § 1538.5),[1] Nathan Wright, Jr. (Wright) entered a plea of no contest to section 12021, subdivision (a)(1), being a convicted felon in possession of a firearm. Imposition of sentence was suspended and he was placed on formal probation for a term of three years, with a condition that he serve a term of 150 days in county jail.
Assigned counsel has submitted a Wende[2] brief, certifying that counsel has been unable to identify any issues for appellate review. Counsel also has submitted a declaration confirming that Wright has been advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court’s attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109–110.)
We find no arguable issues and therefore affirm.
Background
On July 23, 2009, Richmond Police Officer Joseph DeOrian responded to a report of gunshots in the area of 563 Hayes Street.[3] The report indicated that a royal blue four-door vehicle with four to five black males was present when the shots were fired. DeOrian arrived in the area shortly after the report and observed a dark colored four-door car containing four or five males parked about 40 or 50 yards from the reported location of the shooting. When DeOrian approached the vehicle, the driver volunteered that they had just been shot at. DeOrian asked if any weapons were in the vehicle, and the driver appeared nervous and asked to speak with the officer privately. He told DeOrian that a handgun was under the front seat and a shotgun was in the trunk. He admitted that he was a convicted felon. The weapons were recovered from the car.
Wright was seated in the right rear passenger seat of the vehicle. He was removed from the vehicle by Richmond Police Officer Walton Nelson and patsearched for weapons. Nelson felt a hard metal object in the front pocket of Wright’s sweatshirt, and Wright confirmed that the object was a gun. Nelson removed a semi-automatic pistol from Wright’s pocket.
At the preliminary hearing, Wright moved to suppress the evidence seized from his person. The magistrate denied the motion and held Wright to answer on a charge of being a felon in possession of a firearm. (§ 12021, subd. (a)(1).) On October 6, 2009, Wright moved to dismiss the information filed against him (§ 995) on the basis that the evidence introduced against him at the preliminary hearing was the product of an illegal search and seizure. The motion was denied.
On October 30, 2009, Wright appeared with counsel and entered a plea of no contest to the charged offense of being a felon in possession of a firearm. He was advised both orally and in writing of the rights that he was waiving by entering his plea, and the court made a written finding that Wright made a knowing, voluntary and intelligent waiver of his rights.
Wright filed a timely notice of appeal on December 28, 2009, challenging only the denial of his motion to suppress evidence.
Discussion
The sole issue encompassed in Wright’s notice of appeal is the denial of his motion under section 1538.5 to suppress the handgun seized from his person. We find no arguable issues.
Officers were dispatched to the scene of a reported shooting. The officers made consensual contact with the occupants of a vehicle parked within 40 or 50 yards of the incident location. They were informed by the driver of the vehicle that the occupants had been shot at and that firearms were in the car.
“The touchstone of the Fourth Amendment is reasonableness. [Citation.] Whether an officer’s conduct was reasonable is evaluated on a case-by-case basis in light of the totality of the circumstances. [Citations]” (In re Raymond C. (2008) 45 Cal.4th 303, 307.) “[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. [Citations.]” (Florida v. Royer (1983) 460 U.S. 491, 497; Wilson v. Superior Court (1983) 34 Cal.3d 777, 789.)
The United States Supreme Court has long recognized that “there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” (Terry v. Ohio (1968) 392 U.S. 1, 27.) A protective search may be made, “ ‘limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.’ [Citations.]” (Minnesota v. Dickerson (1993) 508 U.S. 366, 373.) “The judiciary should not lightly second-guess a police officer’s decision to perform a patdown search for officer safety. The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations. [Citations.]” (People v. Dickey (1994) 21 Cal.App.4th 952, 957.)
It was not unreasonable under the totality of the circumstances for the officers to patsearch the other vehicle occupants for weapons, including Wright. A cursory patsearch revealed the gun in Wright’s pocket. The motion to suppress was properly denied.
Wright’s plea was entered with the assistance and concurrence of counsel,[4] and the court found a knowing, voluntary and intelligent waiver of his rights. There are no issues on appeal relating to Wright’s plea or sentence. (People v. Mendez (1999) 19 Cal.4th 1084, 1097.)
Disposition
The judgment is affirmed.



_________________________
Bruiniers, J.


We concur:


_________________________
Simons, Acting P. J.


_________________________
Needham, J.


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