Filed 9/28/16 P. v. Barcena CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.

BRANDON DAVID BARCENA,
Defendant and Appellant. 2d Crim. No. B266127 (Super. Ct. No. 1452100) (Santa Barbara County)

Brandon David Barcena appeals a judgment following his guilty plea to possession of a firearm by a felo n (Pen. Code, § 29800, subd. (a) (1) )
, 1 possession of
ammunition by a felon (§ 30305, subd. (a) (1) ), and possession of an assault weapon (§ 30605, subd. (a) )

. Before his plea
, Barcena moved to suppress evidence
, which the
trial court denied. We affirm.
FACTS

On January 18, 2014, agents of the California Department of Justice (DOJ) were observing activities at a gun sh ow in Bakersfield, California. DOJ a gent Matthew
Knittle noticed Barcena going in and out of the gun show and back to his vehicle

. Barcena was carrying an “AR15 style upper receiver” for a rifle, a “black ammunition canister,” and a white plastic bag. His conduct was suspicious. He appeared nervous; he

was “ looking over his shoulders. ” T he weather was not warm, but he was sweating.

1 All statutory references are to the Penal Code.2

Barcena went to his car and placed the i tems in his trunk. Then he waited in the vehicle.
Later he went back to the gun show. He inquired about the price of “.4 0 caliber handgun
ammunition.” He went back t o his car and drove away.

Knittle testified that they did not know Barcena’s identity

. “[I]n an effort to positively identify [him]
, we requested Bakersfield [police department] contact him.” If the Bakersfield police department was not able to obtain the information
, DOJ would
have maintained “visual surveillance” and asked the Californ ia Highway Patro l to “conduct a traffic stop.”

Bakersfield Police O fficer Jonathan Berumen received a dispatch call regarding the DOJ request and Barcena’s location

. He drove to that location and saw Barcena’s car in the “drive

- through” lane of a restau rant. Three other officers were at the
scene. Berumen parked his patrol car so that it would not block Barcena’s “vehicle fr om leaving the drive

- through.” He approached Barcena’s car, knocked on the passenger window and asked him if he would step out of the vehicle. Barcena “consented.”
Berumen asked if Barcena would show him his license or identification. Barcena agreed
and produced the identification.

Barcena talked to one of the officers about what he had purchased at the gun show. He “consented ” to a search of the trunk of his vehicle to show t he officers what he purchased. After that search
, Barcena drove away.

The police obtained a search warrant for Barcena’s home. They seized a gun, an assault rifle and ammunition, all of which were ille gal for him to possess as a
felon. After the People filed the felony complaint, Barcena filed a motion to suppress
evidence
, claiming the items were seized as a result of “illegal police conduct” in
“viola tion of the Fourth Amendment.”

At the motion to suppress hearing
, Barcena testified he did not feel free to leave the area because police handcuffed him and Berumen’s car blocked him from leaving. Berumen testified that Barcena was not handcuffed, his patr ol car did not block him, and Ba rcena was free to leave at anytime. Berumen said that it was a consensual

encounter and that Barcena “consented to everything that [he] asked him.”3 The trial court denied the motion. It found Barcena was not credible, there
was no detention
, and Barcena’s discussion s, actions and the encounter s with police w ere “consensual.”
DISCUSSION
Motion t o Suppress
Barcena contends he was detained and his encounter wit h police “was not
consensual.” Therefore
, the information police obtained during the detention should have
been excluded. We agree with the People that Barcena was not detained, but that he voluntarily cooperated with the police. The encounter was consensual.

“‘ “The standard of appellate review of a trial court’s ruling on a motion to suppress is well esta blished. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. ”’” ( People v. Leath (2013) 217 Cal.App.4th 344, 350.) We use our independent judgment “on the facts so found” to
determine whether the Fourth Amendment was violated. ( Ibid. ) We do not decide the credibility of the witnesses, resolve conflicts in the testimony , or weigh the evidence.
Those determinations are ma de by the trial court. ( People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410 .)

“[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” ( United States v.
Mendenhall (1980) 446 U.S. 544, 554.) “Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer , some physical touching of th e person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” ( Ibid. ; People v. Leath
, supra , 217 Cal.App.4th at p. 350 [a detention did not occur where police officers asked
fo r the defendant’s “iden tification card and retained it ”].)4 A Consensual Encounter “Unlike a detention, a consensual encounter between a police officer and an individual does not implicate the Fourth Amendment.” ( People v. Rivera (2007) 41 Cal.4th 304, 3 09.) “It is well established that law enforcement officers may approach someone on the street or in another public place and converse if the person is willing to
do so.” ( Ibid .) “There is no Fourth Amendment violation as long as circumstances are
such t hat a reasonable person would feel free to leave or end the encounter.” ( Ibid. ) “Consensual encounters require no articulable suspicion of criminal activity.” ( Ibid. )

In People v. Bennett (1998) 68 Cal. A pp.4th 396, 402, the police officer
asked the def

endant if he would mind waiting in a police car so the officer could run a
warrants check. The defendant agreed and cooperated. The court ruled the encounter
was consensual. T he officer “spoke in a polite, conversational tone and applied no physical or verbal force that might have caused a reasonable person to feel compelled to respond.” ( Ibid .)

Officer Berumen testified that Barcena “ consented to everything that [he] asked him.” (Italics added.) Berumen’s actions were not intimidating or coercive. He
did not activate his lights or siren. ( People v. Perez (1989) 211 Cal.App.3d 1492, 14 96.) He did not draw his gun. He did not stop Barcena’s vehicle because “it was already stopped.” He did not use force or threaten to use it. He did not physicall y detain Barcena
or threaten to arrest him.

Berumen asked if Barcena had any weapons. Barcena had just come from a gun show . Barcena “consented” to a pat

- do wn search. Berumen said he made sure that the language he used was not intimidating. There was no evidence that he made any “overt or implied threat of force.” ( People v. Monterroso (2004) 34 Cal.4th 743, 758.)
He “asked if” Barcena would show him his lice nse or identification and Barcena agreed. ( People v. Leath
, supra , 217 Cal.A pp.4th at p. 350 [asking for identification does not constitute a detention].) Berumen “applied no physical or verbal force that might have caused a reasonable person to feel compelled to respond.” ( People v. Bennett
, supra , 68 Cal.App.4th at p. 402.)5 The trial court f

ound, “[T]he officer acted in a non

- detention oriented mindset from the get

- go; that was his testimony. He was clear that every discussion or
conversation with Mr. B arcena was consensual

. . . .” “‘The

. . . voluntariness of the
consent is to be determin ed in the first instance by the trier of fact

. . . .” ( People v.
Monterroso , supra , 34 Cal.4th at p. 758.) Barcena has not shown a lack of substantial evidence to support the court’s findings. ( Ibid. ) Berumen testified, “[T]he way this stop
occurred i t needed to be consensual, so I attempted to keep it that way and be as professional as possible.” If “at any point” Barcena had asked to leave, he would have
been free to leave. Use of Restrain t

Here the trial court rejected Barcena’s claim that polic e had physically restrained him or prevent ed him from leaving. Barcena testified he did not feel free to
leave be cause police “handcuffed” him. But the court f ound Barcena was not credible. I t
believed O fficer Berumen who testifi ed Barcena was not handc uffed.

Barcena testified Berumen told him to “give” him his “ right or left hand” and then the officer physically assisted him to make sure he g o t out of the vehicle. But
the trial court believed Berumen who testified that he did not go to the driver’s s ide or
pu ll Barcena out of the vehicle. He simply asked Barcena “if he’d be willing to step out
of the vehicle
, ” and Barcena “complied and stepped out on his own will .” ( Italics added .)

Barcena contends the parking of the “patrol car was done in a way that a reasonable person would have belie ved he was not free to leave.” The trial court rejected
Barcena’s testimony that the patrol car blocked him from leaving. Berumen testified he parked the patrol vehicle “at an angle” and it was only “partially” in front of Barcena’s
vehicle. The positioning of a police vehicle in front of a defendant’s car is not a detention where the police leave “room for the defendant’s car to leave.” ( People v.
Perez , supra , 211 C al.App.3d at p. 1496 ; People v. Franklin (1987 ) 192 Cal.App.3d 935, 940 [“the officer did not block appellant’s way”].) Berumen testified Barcena’s vehicle
was in the “drive

- t h rough” are a of a restaurant. He parked his patrol car so that it would
not block Barcena’s vehicle from leaving th rough that drive

- through area. O ther6

restaurant customers were able to “get their food” and “were able to leave” from that area without Berumen having to move his patrol vehicle.

Barcena notes that during Berumen’s testimony Berumen made a drawing of the positio n of his patrol vehicle. He claims it depicts the patrol car “facing against the
direction of traffic” in the drive

- through lane in such a way “that made any sub sequent questioning coercive.” But the accuracy and scale of that drawing, its weight, and th e resolution of conflicts it presented with Berumen’s testimony were evidentiary matters
the trial court resolved against Barcena

. ( People v. Superior Court (Keithley)
, supra , 13 Cal.3d at p. 410.) Multiple Officers

Barcena notes that there were three o ther officers present. He claims this

was “ an absurd degree of overkill for a stop designed merely to determine [his] identity.” The presence of multiple officers may be considered in determining whether there was a
consensual encounter. ( In re Manuel G

. (1997) 16 Cal.4th 805, 821.) But courts examine “the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation.” ( Ibid. )

Berumen asked Barcena “ if he would speak with the other off icers that were on the scene.” He made no demands. Barcena walked “on his own
, ” un accompanied by any officer
, to an area 30 feet fr om his car, and sat on a curb. Barcena consented to a search of his trunk
, which contained th e items he purchased at the gun show

. H e left
after that search. Berumen testified the time that elapsed for the entire stop “was 10 to15
minutes.”
T he officers did not dr a w their weapons
, use physical force or threaten to
use force. They did not give commands or engage in coercive conduct. They did not
threaten to arrest him. One of those officers asked “ if he could see what [Barcena] had purchas ed” at the gun show. The language was not confrontational. Barcena testified that while he was sitting on the curb an officer talked with him. “He was just talking about the weather and what else I was doing in Bakersfield, just passing tim e.”7 We have reviewed Barcena’s remaining contentions and conclude he has not shown grounds for reversal.
DISPOSITION

The judgment is affirmed.
NOT TO BE P UBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.8 Rogelio R. Flores, Judge
Superior Court County of Santa Barbara

______________________________

Greg May, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill, Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.