Filed 3/30/17 P. v. Haynes CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
RUFUS TYRONE HAYNES,
Defendant and Appellant.

A149488

(City & County of San Francisco
Super. Ct. No. 221937)


Rufus Tyrone Haynes (appellant) appeals from a judgment entered after the trial court denied his motion to suppress evidence and he pleaded guilty to three firearm related charges (Pen. Code, §§ 29800, subd. (a)(1), 25400, subd. (a)(2), 25850, subd. (a)) and admitted a prior prison term allegation (§ 667.5, subd. (b)). Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not do so. Having independently reviewed the record, we conclude there are no issues that require further briefing, and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On November 4, 2013, a felony complaint was filed charging appellant with: (1) possession of a firearm by a person with a prior felony conviction, (§ 29800, subd. (a)(1), count 1), (2) possession of a concealed firearm by a person with a prior felony conviction (§ 25400, subd. (a)(2), count 2); and (3) possession of a loaded firearm by a person with a prior felony conviction (§ 25850, subd. (a), count 3). The complaint further alleged a prior prison term enhancement (§ 667.5, subd. (b)).
Before the preliminary hearing took place, appellant filed a motion to suppress evidence under section 1538.5 challenging the lawfulness of his detention and the subsequent search of his person. On March 26, 2014, at the end of the preliminary hearing, a magistrate denied the suppression motion and held appellant to answer on all three firearm charges. On April 4, 2014, the prosecutor filed an information re-alleging all three substantive counts set forth in the complaint as well as the prior prison term enhancement.
Appellant filed a motion to set aside the information under section 995 in which he renewed the arguments he made in his motion to suppress evidence. The trial court denied the motion on October 30, 2015, and on July 21, 2016, appellant pleaded guilty to all three counts and admitted the prior prison term allegation. Appellant entered his plea with the understanding that the court would suspend imposition of sentence and place him on formal probation for three years. Prior to accepting appellant’s plea, the court confirmed that appellant knowingly waived his Boykin/Tahl rights (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122, 130) and understood the consequences of his plea. The parties stipulated to the use of the preliminary hearing transcript as the factual basis for the plea.
At sentencing, the trial court suspended imposition of sentence and placed appellant on formal probation for three years. The court imposed a time-served county jail term as well as other conditions of probation, including a four-way warrantless search clause and a ban on the possession of firearms and dangerous or deadly weapons. The court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $300 suspended probation revocation restitution fine (§ 1202.44), a $150 presentence report fee (§ 1203.1b), a $135 booking fee (Gov. Code, § 29550.2, subd. (a)), a $50 per month probation supervision fee (§ 1203.1b), a $40 court security fee as to each count of conviction (§ 1465.8), and a $30 criminal conviction assessment as to each count (Gov. Code, § 70373).
The information was based on an incident that occurred on October 31, 2013. That night, San Francisco Police Officer Anthony Scafani was on patrol in a marked vehicle driven by his partner, Officer David Goff, near Market Street and Seventh Street. It was Halloween night and there were a lot of people in the area. Scafani and Goff saw appellant and a few other people casually walking down the street together. The officers drove past the group and made a U-turn in order to determine whether they knew any of them. As Scafani and Goff approached, appellant split from the group and casually walked off in another direction. The officers parked their car. The car’s headlights were on, but they did not activate the siren or turn on any emergency lights. The officers were in full uniform and armed with guns. Scafani exited the car and walked behind appellant, who looked back at him twice.
At that point, Scafani had not observed any conduct by appellant or anyone in the group that he believed to be illegal. Scafani asked appellant: “Hey, you got a minute[?]” Appellant responded, “Yeah, I’m just about to head home.” Scafani did not order appellant to stop or freeze; he did not display a weapon and did not physically prevent him from leaving the area when he first asked to speak with him. Goff was behind him, about 20 feet away, speaking to another person who was seen earlier with appellant.
Appellant was wearing a large jacket, and the right side was hanging further down than the left side. Appellant’s arms were not in the sleeves, and his hands were by his waist. Scafani thought appellant was carrying a weapon but “for all [he] knew,” the item that was causing the right side of his jacket to hang down could have been a beer bottle. It could also have been a wallet, a cell phone, or money. Scafani asked appellant to show his hands. About 45 seconds to a minute into the encounter, Scafani asked appellant for identification. Scafani also asked appellant about his parole and probation status as well as his arrest history. Appellant was calm, but his hand was shaking when he pulled his identification from his wallet. Scafani asked appellant if he had any weapons, and appellant responded that he did not.
Upon Scafani’s request, appellant did not verbally object to a pat search and lifted his arms in the air. During the ensuing pat search, when squeezing the right front pocket of appellant’s jacket, Scafani “felt the shape of a firearm.” Scafani did not want to immediately remove the firearm because he “didn’t want to alert [appellant] that I realized it was a firearm and create a struggle.” Scafani therefore implied to appellant that he thought it was a bottle of alcohol, and that appellant and his group had been “out there partying, drinking.” Scafani then handcuffed appellant. Goff asked appellant whether the object in his pocket was a bottle of alcohol; appellant responded that it was a gun. Scafani then removed appellant’s jacket and searched it, and found a gun.
After the close of evidence, defense counsel argued that the officers racially profiled appellant and detained him without reasonable suspicion and that appellant’s purported consent to the pat search was tainted by the illegal detention. The prosecutor argued the entire encounter was consensual and thus did not implicate the Fourth Amendment. The magistrate denied the motion to suppress evidence, stating, “The Court does specifically find that the encounter between Officer Scafani and Mr. Haynes . . . was a[] consensual encounter. Nothing with respect to the officer’s testimony appear[s] to turn that consensual encounter into a detention. [¶] The observations of the officer with respect to the jacket, an object in the jacket, and the fact that the officer testified that Mr. Haynes did consent to a pat search indicates that the encounter and the search [were] appropriate.
Upon denying appellant’s motion to set aside the information under section 995, the trial court ruled: “Upon review of the transcript, I’m satisfied that this was a consensual encounter and not a detention. The officers approached from behind, not from the front. No spotlight or other display of authority was used. The initial statement by the officer was neutral. He asked, “Hey, do you have a minute?” followed by asking the defendant if he was out celebrating Halloween. [¶] Even when the officer asked questions about probation and arrests for ID, the questions were brief, supporting a conclusion that this was a consensual encounter. [¶] If it became a detention, it was at the point where the officer noticed the jacket hanging down. And in the totality of the circumstances with the wallet being produced from outside the jacket and the nervousness, I think that if it did become a detention at that point it was supported by Terry [Terry v. Ohio (1968) 392 U.S. 1.3]. [¶] So reading everything together and all the facts in the transcript, I believe that the magistrate properly applied search and seizure law in denying the motion to suppress.”
DISCUSSION
Appellant’s counsel has filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, and asks this court to independently review the entire record to determine if it contains any issues which would, if resolved favorably to the appellant, result in reversal or modification. We have examined the entire record and have found no reasonably arguable appellate issue, and we are satisfied that counsel has fully complied with her responsibilities. (People v. Kelly (2006) 40 Cal.4th 106, 109–110; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
 

_________________________
McGuiness, P.J.


We concur:


_________________________
Pollak, J.


_________________________
Siggins, J.










A149488