1 Filed 7/11/13 P. v. Negrete CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, Plaintiff and Respondent,

v. JESUS GARIBAY NEGRETE, Defendant and Appellant. A135144
(Napa County Super. Ct. No. CR159257)

Following an unsuccessful motion to suppress, a jury convicted defendant Jesus Garibay Negrete of one count of possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) On appeal, defendan t challenges the ruling on his suppression motion. He argues that the evidence implic ating him was the product of an unlawful detention. We disagree and affirm the judgment.
I. BACKGROUND A. Suppression Hearing Testimony The parties developed the historical fact s at the suppression hearing through the testimony of Napa Police Officer Nick Dalessi. Officer Dalessi was on patrol with Serg eant Pat Manzer on October 26, 2011, and at approximately 5:30 p.m. they travelled th rough the Laurel Street Apartments in the
2500 block of Laurel Street. The officers we re in an unmarked vehicle. At that time, Officer Dalessi saw a group of men sta nding around a trash can playing cards and drinking beer.2 Officer Dalessi parked the car about 20 to 25 feet from the men and he and Sergeant Manzer got out of the car. Both offi cers were wearing “police raid attire,” with the words “Police” clearly mark ed on their clothes in several locations. The officers’ badges were displayed on the vests they wore. Officer Dalessi began to walk around the area where the men were playing cards and dr inking beer. Officer Dalessi then walked towards the men and essentially “walked in a circle around the group checking to make sure no one had any weapons or contraband or anything.” He saw numerous cans of Budweiser in and around that area and a par tially full 18-pack of beer in a separate garbage bag next to where the men were sta nding. Sergeant Manzer also walked around “kind of looking around to see if any weapons were in the ar ea and what was going on.” When defense counsel asked whether Sergeant Manzer “was also circling the group,” Officer Dalessi replied, “I couldn’t say circling but walking around.” Officer Dalessi recognized appellant as one of the men playin g cards and drinking
beer. Officer Dalessi focused his attention on appellant and walked up to him. Sergeant Manzer was standing close by. Officer Daless i asked appellant, in English, how he was doing, and began speaking with appellant in English. Officer Dalessi also asked appellant, in English, if he was still on proba tion. Appellant said that he was not on probation. Officer Dalessi smelled alcohol on appellant and thought that appellant was
under the influence.
Officer Dalessi noticed a maroon-colore d Ford Expedition SUV parked nearby. Because Officer Dalessi had previously had c ontact with appellant in that vehicle, the officer asked appellant, in English, if he wa s still driving it. A ppellant, in English, replied negatively, and explai ned that his wife now drove the Expedition, while he
drove the white Ford Mustan g that was parked nearby. Officer Dalessi next asked appellant, in Spanish, if he had any drugs, guns, or knives on him. Appellant said no, in Spanis h. Officer Dalessi then asked appellant, in English, if he could search hi m. Appellant responded by pu tting “both of his hands up in
the air kind of about shoulder width and sh ook his head up and down yes.” Officer
Dalessi had no reason to think a ppellant did not understand him.3 Officer Dalessi then had appellant pl ace his hands behind his back and began searching him. Inside appellant’s left front pants pocket Officer Dalessi found a cigarette box. Underneath the foil of the box was a white piece of plastic that had been melted on the top to seal its contents. Offi cer Dalessi opened th e plastic and found a crystalline substance that he su spected was methamphetamine. Appellant also had two sets of car keys in his right front pants pocket—one set for the Mustang and one for the Fo rd Expedition SUV. Officer Dalessi asked appellant in English if he could search his vehicle. A ppellant may have said yes, but definitely nodded his head up and down “in a yes fashion.” Officer Dalessi used the keys to
unlock the SUV and searched it. He explained: “As I unloc ked the driver side door I
looked off to th e right. Slightly behind the driver seat kind [of] in the doorjamb area off to the right I located another wh ite larger piece of plastic wh ich appeared to be the same type of plastic that contained the contents of methamphetamine that I had found in [appellant’s] pocket. I opened that larger white piece of plastic and located ten additional baggies that had been melted at the top to seal the contents which contained I believed to be suspected methamphetamine .” Officer Dalessi seized the items. Officer Dalessi asked Sergeant Manzer to handcuff appellant. Sergeant Manzer complied, and Officer Dalessi walked appella nt to the unmarked police car and radioed for a Spanish-speaking police offi cer to assist in translati on. Officer Salem responded within 10 minutes or so, read appellant his Miranda 1 rights in Spanish, and subsequently interviewed him in Spanish. During the officers’ interaction with appe llant they did not point a gun at him or use force upon him. B. Argument and Tr ial Court Ruling Following Officer Dalessi’s testimony, defense counsel argued appellant was subjected to an unlawful detention, arguing: “Here two officers parked a car very near [appellant]. It was near dark. They were wearing raid attire. One officer circled the

1 Miranda v. Arizona (1966) 384 U.S. 436.4 group while the other stood nearby possibly walking around the group as well. The attention was focused specifically on [appella nt]. He was asked about guns, drugs, or knives in Spanish. A bunch of other stuff wa s said in English. And I don’t think under
those circumstances a reasonabl e person would feel free to terminate the encounter and walk away. [¶] And certain ly there was no objective reasonable basis to suspect him of criminal activity at that time. So I don’t th ink there was a lawful basis for the detention and the motion should be granted on those grounds.” Appellant argued that the consent he ga ve Officer Dalessi to search his person
and vehicle was invalid as a result of the unconstitutional detention. Appellant not only sought suppression of any and all evidence sei zed during the searches as the fruit of the illegal detention, but additionally sought supp ression of the statements he later gave to
Officer Salem as fruit of the ille gal detention. Appellant al so argued that even if his encounter with police constitute d a consensual encounter, not a detention, suppression of the methamphetamine seized during the search es of his person and vehicle was still in order because he involuntarily consented to those searches. Citing the language barrier, the nonverbal, ambiguous alleged consent, the testimony that appellant was under the influence of alcohol, and other factors, defe nse counsel argued the prosecution failed to meet its burden of proving that appellant had freely and voluntar ily consented to the
searches at issue. The prosecution argue d that the initial encounter be tween appellant and Officer Dalessi was consensual, not a detention th at required suspicion of wrongdoing by appellant on the part of the officer. “Offi cer Dalessi did nothing that converted this
consensual encounter into a de tention until he arrest ed [appellant], but only after seizing the drugs from his person and vehicle.” Th e prosecution also argued that appellant voluntarily consented to the searches. The trial court ruled that appellant gave his consent to the searches at issue during a consensual encounter, not a de tention. The court focused on whether appellant voluntarily consented to the sear ches. The court found that appellant did voluntarily consent and denied the motion to suppress. The trial court issued the5 following ruling from the bench: “Officer Dale ssi was only one offi cer of two, and so it’s two officers not six or ten or anything th at would really be ex treme in determining consent. And he’s in a group of people in this neighborhood. And he asks . . . if the defendant, who he recognizes, has guns, drug s, or knives. [Appellant] indicates no.
That indicates to me that he understood th e question. I realize some is in Spanish
some isn’t. Then Officer Dalessi asks to search. That’s when his hands go up, but he’s also nodding yes in the a ffirmative. That’s when co ntraband is found and then the keys are found, and he’s asked if he could search the SUV and again the answer is yes. [¶] I think the conduct implies consen t. And he also is stating, at least the officer thought he also said ye s, but he definitely nods hi s head in the affirmative up
and down. So I think it’s a consensual encounter. And I think it’s voluntary both as to the defendant’s person and as to the car [.] I think [they] were proper consent searches. So I will deny the motion to suppress.”
II. DISCUSSION A. Standard of Review We employ a two-tiered standard of re view when evaluating a challenge to a ruling on a motion to suppress ev idence. First, “[w]e defer to the trial court’s factual findings, express or implied, where s upported by substantial evidence.” ( People v.
Glaser (1995) 11 Cal.4th 354, 362 .) Second, in determining if, on the facts so found, a seizure occurred, and whether that seizure wa s reasonable, “we exercise our independent judgment.” ( Ibid.; People v. Nickleberry (1990) 221 Cal. App.3d 63, 68.) With respect to factual conflicts in the evidence, it is the supe rior court, not the reviewing court, that “is vested with the power to judg e the credibility of the witnesses, resolve any conflicts in the testimony, weigh the eviden ce and draw factual inferences in deciding whether a search is constitutionally unreasonable.” ( People v. Woods (1999) 21 Cal.4th 668, 673.) Consequently, on appeal, we consider the record in “the light most favorable” to the judgment below, and “ ‘all factual conf licts must be resolved in the manner most favorable to the [superior] court’s disp osition on the [suppression] motion.’ ” ( Ibid.; In
re Arturo D. (2002) 27 Cal.4th 60, 77.)6 B. The Trial Court Properly Deni ed the Motion to Suppress Our Supreme Court has explained that “[ p]olice contacts with individuals” can be placed into “three broad cate gories ranging from the least to the most intrusive”: (i) “consensual encounters that result in no restraint of liberty whatsoever”; (ii) “detentions, which are seizur es of an individual that are strictly limited in duration, scope, and purpose”; and (iii) “f ormal arrests or comparable re straints on an individual’s liberty.” ( In re Manuel G. (1997) 16 Cal.4th 805, 821.) The traditional dividing line
between a consensual encounter and a seizure is that a seizure occurs when, in view of all the circumstances, “ ‘a reasona ble person would have believe d that he was not free to leave.’ ” ( Wilson v. Superior Court (1983) 34 Cal.3d 777, 790 .) While a consensual encounter requires no justificati on under the Fourth Amendment ( In re Manuel G.,

supra, 16 Cal.4th at p. 821), a person ma y not be seized or detained “ even momentarily without reasonable, objectiv e grounds for doing so.” ( Florida v. Royer (1983) 460 U.S. 491, 498 (plur. opn. of White, J.), italics added; People v. Hughes (2002) 27 Cal.4th 287, 327 [“ ‘consensual encounters’ ” “are those police-individual interactions which result in
no restraint of an individual’s lib erty whatsoever—i.e., no ‘seizure,’ however minimal— and which may properly be initiated by police officers even if they lack any ‘objective justification,’ ” italics added].) Here, appellant maintains that the po lice detained him without reasonable suspicion before he consented to the searches of his person and his vehicle and, because his consent resulted from an illegal detention, the fruits of those searches must be suppressed. The People do not contend that the officers had reasonable suspicion to justify a detention of appellant when they approached him in the parking lot. Consequently, the only issue before us is whether the officers’ contact with appellant
constituted a consensual encoun ter, which was lawful withou t reasonable suspicion of criminal activity, or a detention that wa s unlawful because it was not supported by reasonable suspicion. “The United States Supreme Court has ma de it clear that a detention does not occur when a police officer mere ly approaches an individual on the street and asks a few7 questions. [Citation.] As long as a reasona ble person would feel free to disregard the police and go about his or her business, the encounter is consensu al and no reasonable suspicion [of criminal activity] is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty, does a seizure occur. [Cita tions.] ‘[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the po lice conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.’ [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] Circumstan ces establishing a seizure might include any of the following: the presence of several office rs, an officer’s display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with th e officer’s request might be compe lled. [Citations.] The officer’s
uncommunicated state of mind an d the individual citizen’s subj ective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred.” ( In re Manuel G., supra, 16 Cal.4th at p. 821.) Here, Officer Dalessi did not coerce appe llant to submit to questioning or to give his consent to a search “by means of phys ical force or a show of authority.” ( United
States v. Mendenhall (1980) 446 U.S. 544, 553.) The of ficer approached appellant while he and a group of men were pl aying cards and drinking beer in an apartment parking lot. He walked around the group to check for we apons and/or contraband, but he did not block or otherwise impede appe llant’s movement. Similarly, there is no indication that Sergeant Manzer blocked or restrained appe llant’s movements. While the officers walking around near appellant might cause a reasonable person to feel himself the object of official scrutiny, such directed scrutiny did not amount to a detention. (See, e.g., People v. Perez (1989) 211 Cal.App.3d 1492, 14 96 [police officer did not detain defendant when he parked his pa trol car in front of defendant’s vehicle, and left room for defendant to leave]; People v. Franklin (1987) 192 Cal.App.3d 935, 940 [no detention8 where officer spotlighted defendant and pulled up to the curb in hi s patrol car behind defendant].) The questions Officer Dalessi as ked appellant were nona ccusatory, routine,
and brief. That the officers we re dressed in “raid attire” is a factor that has “ ‘little weight in the analysis’ for determining whether a seizure occurred.” ( People v. Zamudio (2008) 43 Cal.4th 327, 346, quoting United States v. Drayton (2002) 536 U.S. 194, 204.) The officers did not charge at appellant, draw their weapons, or tell appellant that they thought he was involv ed in criminal conduct. (See, e.g., Wilson v. Superior Court, supra, 34 Cal.3d at pp. 790-791 [a reasonable person , when confronted by a narcotics officer and accused of importing illegal drugs into the state, would not feel free to leave or otherwise terminate the encounter].) At no tim e did Officer Dalessi tell appellant that he was required to answer his questions or cons ent to a search. Under these circumstances, a reasonable person would have believed he was free to leave or deny the officer’s requests. Although not directly addressed on appeal, below appellant emphasized the language barrier and his apparent intoxi cation as negating his consent. Such circumstances are certainly part of the rele vant totality of the circumstances. However, the record amply demonstrates that appella nt appeared to understand the questions
directed to him. When Officer Dalessi as ked him if he could search him, appellant responded by putting both his hands in the air and nodding his “head up and down yes.” Other responses to Officer Dalessi’s questions similarly evince appellant’s grasp of the conversation: appellant stated that he was no longer on probation, and explained that his wife drove the maroon SUV, and he drove the white Ford Mustang. (See, e.g., United States v. Sanchez (8th Cir. 1998) 156 F.3d 875, 878 [defendant’s limited English skills did not vitiate consent]; United States v. Contreras (8th Cir. 2004) 372 F.3d 974, 977 [same].) If indeed appellant did not consent to the search es, Officer Dalessi reasonably believed otherwise. (See United States v. Pena-Ponce (8th Cir. 2009) 588 F.3d 579, 584 [officer reasonably believed th at defendant who “spoke only broken English” consented to search]; see also United States v. Vongxay (9th Cir. 2010) 59 4 F.3d 1111, 1120 [defendant’s act of raising hi s hands to his head constituted implied consent to search].)9 Finally, although the record reveals that appellant appeared to be under the influence of alcohol, nothing indicates that a ppellant was incoherent or otherwise lacked capacity to consent. (See United States v. George (9th Cir. 1993) 987 F.2d 1428, 1430- 1431 [consent voluntary even though defendant “was a si ck young man” in weakened condition in emergency room following heroin overdose].) Thus, under the totality of the circumst ances, we conclude Officer Dalessi’s encounter with appellant was consensual, and appellant’s consent to the search of his person and his vehicle was not th e product of an illegal detenti on. Accordingly, the trial court properly denied the appellant’s motion to suppress evidence.

III. DISPOSITION The judgment is affirmed.

_ ____________ ____________ REARDON, ACTING P. J.

We concur:

_____________ ____________ RIVERA, J.

_____________ ____________ HUMES, J.