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Filed 7/1/15 In re Aaron C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re AARON C., a Person Coming Under

the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

AARON C.,

Defendant and Appellant. A144058

(Contra Costa County

Super. Ct. No. J13

- 01121)

Following denial of his motion to suppress the evidence against him (Pen. Code

,

§ 1538.5 ), 1 appellant Aaron C. entered a plea of no contest to a charge of felony

possession of a firearm by a minor ( § 29610)

. The juvenile court continued Aaron on

p robation as a ward of the court and ordered him removed from his parents’ cu stody.

Assigned counse l 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 Aaron has been advised of his right to personally file a

supplemental brief raisi ng 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

1 Undesignated statutory references are to the Penal Code.

2 People v. Wende (1979) 25 Cal.3d 436.2

record. ( People v. Kelly (2006) 40 Cal.4th 106, 109

– 110.) We find no arguable issues

and therefore affirm.

I. B ACKGROUND 3

At approximately 6:50 p

. m

. on October 12, 2014, Pittsburg police o fficer s,

Sankara Dumpa and Angelic a Valles

, observed Aaron leaning against a fence along a

sidewalk on Crestview Drive, a residential street in Pittsburg. Dumpa described it as a

“high crime area” with “multiple shooting s , drug transactions.” Aaron was wearing a

dark hooded sweatshirt with the hood pulled over his head. Dumpa believed Aaron’s

attire

, baggy clothing and a hooded sweatshir t, was unusual because it had been a warm

day. Aaron was alone, but another male was walking toward him.

When Dumpa stopped at the intersection of Crestview and Olympia Drive s , Aaron

and the other individual looked at the patrol car and turned around to walk north on

Crestview. The officer s made a U

- turn to drive back to the two individuals “[j]ust to find

out who they are, if they lived in the neighborhood. [ Dumpa had] never seen them in the

area before.” Dumpa , who was in uniform, parked the police car along the curb

approximately 15 yards north of where Aaron and the other male w ere walking

. Dumpa

got out of the police car and stood by the driver’s side door, waiting for Aaron and his

companion to approach the car. As Aaron walked toward the police car, Dumpa said

s omething to the effect of, “Hey, what’s up man” or “What’s up, man? How are you

doing?” Valles got out of the car on the passenger side

.

Aaron and the other male were about 10 feet in front of the patrol car when

Dumpa greeted them. Dumpa noticed that

, as Aaron approached the patrol car, his hands

were concealed in the front pocket s of his sweatshirt, so he asked Aaron to take his hands

out of his pockets “for safety reasons.” Aaron said nothing, keeping his hands in his

pockets and shaking his head “no.” Dumpa noticed a “bulge” in either the pocket of

Aaron’s sweatshirt or the front of his waistband. Based on his training, Dumpa believed

3 The factual background is taken from testimony presented at a November 3,

2014 hearing on the motion to suppress evidence.3

the bulge could be a gun. Dumpa said, “Show me your hands.” Aaron replied, “I’m not

going to show you my hands.” When Aaron refused a third request, Dumpa removed his

gun and pointed it at Aaron, ordering him to show his hands. After Dumpa ordered

Aaron to show his hands a fourth time, Aaron and the other individual turned around and

“quickly took two steps south.” Dumpa believed tha t Aaron was going to run. Dumpa

walked around to the front of the patrol car, and said, “Stop. Show me your hands.”

Aaron then removed his hands from his pockets and said, “Okay, okay

, ” placing his

hands behind his head.

Another Pittsburg police officer, James Anderson, had arrived at the scene to

assist

. Anderson patsearched Aaron and felt what he believed to be a gun inside the front

part of Aaron’s sweatshirt. Anderson removed from Aaron’s sweatshirt a Glock

handgun, which contained a 13

- round magazine with 11 live rounds

. Aaron told Dumpa

that he was on probation for a firearms charge.

A second supplemental juvenile wardship petition alleg ed that Aaron

, then age 14,

had committed one count of felony possession of a firearm by a minor (§ 29610) and one

count of receiving stolen property (§ 496, subd. (a)). Based on the foregoing testimony,

the juvenile court denied Aaron’s motion to suppress evidence of the weapon found on

his person . Finding it to be a “close case, ” the court concluded that the initial encounter

between Dumpa and Aaron was consensual and that the totality of the circumstances,

including Dumpa’s suspicion that the observed bulge in Aaron’s sweatshirt might be a

weapon

, justified a subsequent detentio n

.

On November 6, 2014, Aaron pleaded no contest to the charge of f elony

possession of a firearm by a minor. T he prosecution dismissed the charge of receiving

stolen property

. T he court continued Aaron as a ward of the court on probation and

ordered him placed in an approved home or instit ution for 50 months and 22 days. Aaron

was ordered to have no contact with the adult with whom he was found at the time of his

arrest. He was preclu d ed from possessing a f irearm before his 30th birthday and order ed

to pay a restitution fine of $100.

Aaron filed a timely notice of appeal.4 II. D ISCUSSION

While presenting no argument, appointed appellate counsel “notes” three

questions “that mi ght arguably support the appeal ” : ( 1) w as Aaron detained within the

meaning of the Fourth Amendment when first contacted by Dumpa ; ( 2) s hould the court

consider Aaron’s age (14 y ear s) in determining if Aaron believed he was detained ; ( 3) d id

Dumpa have reasonable suspicion of criminal activity when he directed Aaron to re move

his hands from his pockets. Obviously

, counsel f ound no merit in pu rsuit of these

questions since he certif

ied that he was unable to identify any issues for our review

. We

likewise find no merit in these avenues of inquiry

.

In reviewing a ruling on a motion to suppress under section 1538.5, we “ ‘ review []

the determination of the magistrate who ruled on the motion to suppress, drawing all

presumptions in favor of the factual determinations of the magistrate, upholding the

magistrate’s express or implied find ings if they are supported by substantial evidence,

and measuring the facts as found by the trier against the constitutional standard of

reasonableness.’ [Citation.] ‘ We exercise our independent judgment in determining

whether, on the facts presented, th e search or seizure was reasonabl e under the Fourth

Amendment. ’ ” ( People v. Hua (2008) 158 Cal.App.4th 1027, 1033.)

The trial court found the initial encounter with Aaron was consensual. We agree.

“[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 prosec ution his voluntary answers to such

questions.” ( Florida v. Royer (1983) 460 U.S. 491, 497 .) No probable cause or

reasonable suspicion was required to initiate this encounter. ( I bi d

. ; In re Manuel G.

(1997) 16 Cal.4th 805, 821.) “An officer has every right to talk to anyone he encounters

while regularly performing his duties

. . . . ” ( People v

. Castaneda (1995) 35 Cal.App.4th

1222, 1227.) A person is not detained simply because an officer approache s him and

begins talking to him. “U ntil the officer asserts some restraint on the [ person’s ] freedom

to move, no detention occurs. ” ( Ibid .) On the other hand, a detention occurs when the5

police, “ by physical force or show of authority, [ have ] in some way restrained the liberty

of a citizen. ” ( Florida v. Bostick (1991) 501 U.S. 429, 434; People v. Kopatz (2015)

61 Cal. 4th 62, 79 .)

Simply asking Aaron to remove his hand s from the pocket s of his baggy

sweatshirt for officer safety did not convert the consensual encounter into a detention.

Whether a particular encounter constitutes a seizure requires assessment of the coercive

effe ct of police conduct as a whole

— not particular detai ls of that conduct in isolation

—

and considers whether all the surrounding circumstances “ ‘ would have communicated to

a reasonable person that the person was not free to

. . . terminate the encounter. ’ ” ( In re

Manuel G ., s upra, 16 Cal.4th at p. 821.) Nothing objectively communicated to Aaron

that the encounter was coercive until Dumpa drew his weapon , which only occurred after

Dumpa notic ed a bulge in Aaron’s clothing that he believed to be a weapon and Aa ron

repeatedly refused to show his hands to the officer

. 4 T he office rs were more than

justified in forcibly detaining Aa ron and performing a pat search to determine if h e was

armed.

“If the officer identifies himself and nothing acts to dispel his reasonable fear for

his own or other’s safety, ‘he is entitled for the protection of himself and others in the

area to conduct a carefully limited search of the outer clothing of such persons in an

attempt to discover weapons which might be used to assault him.’ ” ( People v. Coulombe

(2000) 86 Cal.App.4th 52, 56.) “[T]he officer need not be absolutely certain that the

individual is armed; the crux of the issue is whether a reasonably prudent person in the

totality of the circumstances would be warranted in the belief that his or her safety was in

danger.” ( P eople v. Avila (1997) 58 Cal.App.4th 1069, 1074.) We need only ask

,

“ [W]ould the facts available to the officer at the mome nt of the seizure or the search

‘warrant a man of reasonable caution in the belief’ that t he action taken was

appropriate? ” ( Terry v. Ohio (1968) 392 U.S. 1, 21

– 22.) “ ‘The judiciary should not

4 We find no support for counsel’ s suggestion that we consider the subjective

perspective of a “reasonable ” 14 year old in assessing what was objectively

communicated by police conduct.6

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 Amend ment considerations.’ ” ( People v. Collier (2008) 166 Cal.App.4th 1374

,

1378.)

No certificate of probable cause was sought or obtained, and no issues are

presented as to Aaron’s plea. We also find no arguable issue presented as to the

dispositional ord e r. “[T]he juvenile court has long enjoyed great discretion in the

disposition of juvenile matters.” ( In re Greg F. (2012) 55 Cal.4th 393, 411.) “The

standard of review of juvenile court commitment decisions is well established. ‘The

decision of the juv enile court .

. . may be reversed on appeal only upon a showing that the

court abused its discretion in its commitment of the minor.’ ” ( In re Jose R . (1983)

148 Cal.App.3d 55, 59.) “ ‘ “We must indulge all reasonable inferences to support the

decision o f the juvenile court and will not disturb its findings when there is substantial

evidence to support them.” ’ ” ( In re Robert H . (2002) 96 Cal.App.4th 1317, 1330.)

III. D ISPOSITION

We find no arguable issues and affirm.7 _________________________ BRUINIERS, J.

WE CONCUR:

_________________________ SIMONS, Acting P. J.

_________________________ NEEDHAM, J.8

A1 44058