1

Filed 7/15/15 P. v. Ramirez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

AMY MAGELINE RAMIREZ,

Defendant and Appellant.

A144538

(Contra Costa County

Super. Ct. No. 5-131705-6)

Defendant Amy Ramirez appeals from the judgment entered following her no 

contest plea to possession of methamphetamine and heroin. She contends the court erred 

in denying her motion to suppress made prior to entry of her plea. Her appointed 

appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, in 

which he raises no issue for appeal and asks this court for an independent review of the 

record. Counsel attests that defendant was advised of her right to file a supplemental 

brief, but she has not exercised that right. Having reviewed the entire record, we conclude

there are no arguable issues on appeal and affirm the judgment.

Factual and Procedural Background

Defendant was charged by criminal complaint with one felony count of 

transporting heroin (Health & Saf. Code, § 11352, subd. (a)), one felony count of 

transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), one felony 

count of possessing heroin (Health & Saf. Code, § 11350, subd. (a)), and one felony 

count of possessing methamphetamine (Health & Saf. Code, 11377, subd. (a)).
2

In advance of the preliminary hearing, defendant filed a motion to suppress 

pursuant to Penal Code section 1538.5. The following evidence was presented at the 

preliminary hearing: 

The arresting officer testified that on the afternoon of March 31, 2013, he saw a 

man illegally pushing a shopping cart on the Delta de Anza Regional Trail behind the 

Tower Mart in Contra Costa County. The officer detained the man and determined that he 

was a parolee. The man told the officer that a friend was in the Tower Mart and would be 

joining him shortly. The officer then saw defendant walking towards him from the 

direction of the Tower Mart. Defendant approached the officer and asked what was going 

on. The officer told her that he was arresting the man on a parole hold. He immediately 

asked defendant her name and whether she was on probation or parole. Defendant told 

the officer her name and reported that she was on probation without a search clause. The 

officer testified that defendant had scabs and scars on her face, including “an open sore 

that was actually freshly bleeding on her ear,” all of which caused him to suspect 

intravenous drug use and led him to ask her to roll up her sleeves. When she rolled up her 

sleeve, he observed marks on her arm that he believed were consistent with intravenous 

drug use.

In response to the officer’s continued questioning, defendant admitted that she 

used drugs, described herself as a drug addict, and reported that she had smoked 

methamphetamine that morning. The officer asked if defendant was in possession of any 

controlled substances, and defendant stated that she had a small amount of 

methamphetamine and heroin in her purse. This verbal exchange occurred within five 

minutes of their initial encounter. The officer searched defendant’s purse and found small 

amounts of substances the defense stipulated for purposes of the preliminary hearing and 

suppression hearing were methamphetamine and heroin. In the officer’s opinion, 

defendant possessed a useable amount of both controlled substances. 

The court denied the motion to suppress and held defendant to answer on the two 

possession offenses. The magistrate explained, “While I think it’s a close call, certainly 

the initial encounter was consensual and that the defendant walked up to the police, or to 
3

the officer, and made inquiries about the status of her friend. [¶] The fact that the officer 

testified that the defendant had open sores and freshly bleeding — was freshly bleeding 

on her ear would be enough to be concerned about the welfare of the person, and then we 

have the defendant’s own admission within minutes of the initial encounter about the 

drug use.”

Thereafter, the District Attorney filed an information charging defendant with the 

four offenses set forth in the previously filed criminal complaint.

On January 2, 2014, defendant renewed her motion to suppress. Based on its 

review of the preliminary hearing transcript, the trial court upheld the denial of 

defendant’s motion to suppress. The court explained, “I think it’s clear to me that the 

evidence before the magistrate in this case supports the fact that the officer . . . delivered 

his request to the defendant to roll up her sleeves in such a manner that it was clearly 

consensual. A reasonable person would not feel — that there was nothing coercive about 

that request. [¶] And since the defendant was the one that approached the police officer to 

begin, there’s nothing in the record that suggests she wasn’t just free to retreat at that 

time. There’s also, on this record, sufficient information even without the sleeves being 

rolled up, even at that point it seems to me that there was probable cause to detain. [¶] So, 

even if there had been something coercive or crossing the line about the questioning, 

seems to me that there still would be a probable cause to detain. For these reasons, it 

seems to me that the motion should be denied.” 

After successfully moving to dismiss the transportation charges and reduce the 

remaining felony possession charges to misdemeanors, defendant entered a no contest 

plea to one count of possessing heroin and one count of possessing methamphetamine.

Defendant entered her no contests pleas with the understanding that she would be placed 

on probation with a time-served jail term. Defendant was sentenced in conformity with 

her plea bargain. 

Defendant filed a timely notice of appeal “based on the denial of a motion to 

suppress evidence under Penal Code section 1538.5.”
4

Discussion

“ ‘In reviewing a suppression ruling, “we defer to the . . . court’s express and 

implied factual findings if they are supported by substantial evidence, [but] we exercise 

our independent judgment in determining the legality of a search on the facts so 

found.” ’ ” (People v. Tully (2012) 54 Cal.4th 952, 979.) Where the motion to suppress is 

denied by the magistrate and renewed in the superior court upon the preliminary hearing 

transcript alone, we are concerned solely with the factual findings of the magistrate. 

(People v. Gentry (1992) 7 Cal.App.4th 1255, 1261.)

Substantial evidence supports the magistrate’s finding that the encounter was 

consensual. (People v. Siripongs (1988) 45 Cal.3d 548, 566-567 [The question of the 

voluntariness of the consent is to be determined in the first instance by the trier of fact

and the trial court’s findings must be upheld if supported by substantial evidence.].)

Defendant approached the officers and inquired about her friend’s situation. She 

demonstrated an understanding of her rights by specifically indicating that while she was 

on probation, she was not subject to a search condition. Nothing in the record suggests 

that her responses to the officer’s questions about her drug use or his request that she roll 

up her sleeves was anything other than voluntary.

Defendant was adequately represented by counsel throughout the proceedings. 

There was no sentencing error. There are no issues that require further briefing.

Disposition

The judgment is affirmed. 
5

_________________________

Pollak, Acting P. J.

We concur:

_________________________

Siggins, J.

_________________________

Jenkins, J.
6

A144538