1

F iled 3/10 /16 P. v. Colley 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN DOMINIC COLLEY,

Defendant and Appellant. A142090

Order Modifying Opinion [No Change in Judgment]

(San Mateo County Super. Ct. No. SC076122A)

THE COURT:

It is ordered that the opinion filed February 16, 2016 be modified as follows:

(1) On page 4, replace the last sentence of the last full paragraph with the

following:

Under the totality of the circumstances

— the late hour, appellant’s nervous and

evasive behavior, and the officers’ experience with lightweight guns

— the search of the

g un case was not unreasonable. 1

1 United S tates v. Leo (7th Cir. 2015) 792 F.3d 742, in which the Seventh Circuit found the search of a backpack unreasonable, is distinguishable. In contrast to the facts of Leo, this case involves a traffic stop; appellant was not handcuffed; before exiti ng the car appellant appeared to rummage around in his backpack while shielding his actions from the officers’ view; the officers interviewed appellant and verified the case was marketed as a gun case before conducting the search; and the officers suspecte d appellant was

under the influence of controlled substances.2

(2) On page 5, renumber footnote 6 as footnote 7.

There is no change in the judgment.

Appellant’s petition for rehearing is denied.

Dated: , P. J.1

Filed 2/16/16 P. v. Colley CA1/5 (unmodified version)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN DOMINIC COLLEY,

Defendant and Appellant. A142090

(San Mateo County Super. Ct. No. SC076122A)

Defendant and appellant Brian Dominic Colley appeals following his no contest

plea to possession of a firearm by a felon (Pen. C ode, § 29800, subd. (a)(1)) 2 and

possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). His sole

contention on appeal is the trial court erred in denying his motion to suppress evidence

discovered following a search of his gun case

. We a ffirm.

BACKGROUND

About 1:10 a.m. on March 28, 2012, Officer Randy Vigus and another officer

conducted a traffic stop. 3 Vigus determined the driver had a n outstanding war rant for his

arrest and the officers arrested him

. T he only passenger, appellant, r emained in the car

for several minutes while a third officer, Aaron Wong, watched him

. Wong testified

appellant was “ very nervous” and “fidgety” during this time.

2 All undesignated section references are to the Penal Code.

3 Appellant did not challenge the legality of the traffic stop.2

T he officers told appellant to step out of the car with his belongings. Wong

testified ap pellant was “very nervous, very fidgety, ” and “looked around rapidly inside

the vehicle.” Appellant took a backpack from behind the driver’s seat and, as he stepped

out of the car, lean ed into the front passenger compartment with the backpack in front of

him , blocking Wong’s view for 30 to 60 seconds as he apparently manipulated the

backpack . When appellant finally stepped away from the car, Wong saw a black plastic

container protruding from the top of the backpack. Wong believed the container was a

gun case, based on his experience seeing hundreds of such containers. Wong told

appellant to put the backpack down and appellant instead started turning away

. T he

officers took the backpack from him and placed it near a patrol car about 25 feet away

. Appel lant told the officers the case was “a CD case” and held “software.” He

made inconsistent statements about whether the backpack was his. He was “extremely

fidgety, anxious, sweaty,” with difficulty “paying attention [and] keeping his eyes open.”

Vigus s uspected he was under the influence of a controlled substance. Wong conducted

an internet search and determined the container was advertised as a gun case. T he gun

case was very light, but the officers had experience with extremely lightweight guns.

Vig us searched the gun case and found compact discs; a hose commonly used for the

ingestion of controlled substances, which was covered with a white residue; and Q

- tips. 4

The trial court denied appellant’s motion to suppress, concluding the search was

reas onable in light of the circumstances, including the location on the “side of the road”

and the “attitude of the defendant.” The court found “ [t] he officers are reasonable in

assuming that a gun case contains a gun. The fact that it doesn’t weigh very muc h

doesn’t mean that there can’t be a gun in there as is the reasonable assumption.”

DISCUSSION

“In reviewing the trial court’s suppression ruling, we defer to its factual findings if

supported by substantial evidence. We independently assess the legal q uestion of

4 Following this discovery, appellant was arrested and the police searched his person and

the rest of his backpack, finding a firearm and methamphetamine. A ppellant does not challenge these searches on appeal.3

whether the challenged search or seizure satisfies the Fourth Amendment.” ( People v.

Brown (2015) 61 Cal.4th 968, 975.)

I. Burden of Proof

Appellant argues the trial court erroneously assigned the burden of proof to

appellant. Appellant poin ts to a comment made during closing arguments. After the

People made their closing argument, defense counsel informed the court, “I actually have

a second argument I should have made at the outset.” The trial court responded , “You’ve

got the burden. You ’ve got rebuttal. [¶] If it turns out to be new, you [presumably

, the

prosecutor] can respond to it.” Defense counsel replied , “Th a t’s exactly right.” 5

Under section 1538.5, “[a] defendant may move” to suppress evidence. (§ 1538.5,

subd. (a)(1).) “[W] hen defendants move to suppress evidence, they must set forth the

factual and legal bases for the motion, but they satisfy that obligation, at least in the first

instance, by making a prima facie showing that the police acted without a warrant. The

prosec ution then has the burden of proving some justification for the warrantless search

or seizure, after which, defendants can respond by pointing out any inadequacies in that

justification.” ( People v. Williams (1999) 20 Cal.4th 119, 136 ( Williams ) .)

Appe llant did have a burden

— the “ ‘burden of raising an issue,’ ” meaning “a

party’s obligation to bring an issue to the attention of the trial court and the opposing

party

. . . . ” ( Williams, supra, at p. 128.) The trial court’s comment appeared to refer

so lely to this burden. Of course, the prosecutor still bore the burden of proving the

warrantless search or seizure was justified. ( Id. at p. 136.) Appellant has pointed to

nothing in the record suggesting the trial court did not understand this burden of proof.

5 Though it is not entirely clear that the court’s first reference to “you” meant appellant, we accept appellant’s assumption to that effect.4

II. The Suppression Motion Was Properly Denied

Appellant argues the People failed to prove the search of the gun case was justified

by the officers’ reasonable suspicion that he was armed and dangerous. We disagree, and

find the search justified on this ground. 6

A law enforcement officer may conduct “ a reasonable search for weapons for the

protection of the police officer

, where he has reason to believe that he is dealing with an

armed and dangerous individual, regardless of whether he has proba ble cause to arrest the

individual for a crime. The officer need not be absolutely certain that the individual is

armed; the issue is whether a reasonably prudent man in the circumstances would be

warranted in the belief that his safety or that of others was in danger. [Citations.] And in

determining whether the officer acted reasonably in such circumstances, due weight must

be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific

reasonable inferences which he is enti tled to draw from the facts in light of his

experience. ” ( Terry v. Ohio (1968) 392 U.S. 1, 27 , fn. omitted ; see also People v.

Mendoza (2011) 52 Cal.4th 1056, 1081

- 1082 .)

Appellant concedes “Wong’s concern when he first spied the gun case justified

some action to clarify whether the case contained a weapon.” He argues once the officers

seized the gun case, they could no longer reasonably believe it held a gun because it was

so light. At the suppression hearing, Wong testified he was aware of “exceedingl y light”

guns

. Vigus testified he had a gun that weigh s “very, very, very little

, ” and had

previously “dealt with a gun that it would have been very difficult to tell that if it was in

that case when I picked it up and placed it on the patrol car. There are guns out there that

would make that extremely difficult.” Under the totality of the circumstances

— the late

hour, appellant’s nervous and evasive behavior , and the officers’ experience with

light weight guns

— the search of the gun case was not unreasonab le.

Appellant also argue s that when the officers removed the gun case from his reach

they eliminated the danger and correspondingly eliminated the need to search the case

. A

6 We need not and do not address the alternative justifica tion raised by the People below.5

similar argument was rejected in People v. Ritter (1997) 54 Cal.App.4th 274 ( R itter ). In

Ritter , an officer removed a fanny pack, the outside of which appeared to show the

outline of a gun, from the defendant and subsequently searched it. ( Id. at p. 277.) The

defendant argued “after he removed the fanny pack and the risk was elim inated, the

search was no longer justified as a safety measure.” ( Id. at p. 278.) The court disagreed,

concluding “the deputy did not act unreasonably in taking preventive measures to ensure

that there were no weapons within defendant’s immediate grasp d uring the ongoing

investigation,” and finding “the deputy’ s prudence should not be faulted for a failure to

pat down the fanny pack while defendant was wearing it. ” ( Id . at p. 280.) We similarly

decline to find the officers’ search of appellant’s gun cas e would only be justified if

conducted within arms’ reach of appellant. 7

DISPOSITION

The judgment is affirm ed.

7 Appellant argues Ritter is distinguishable because in that case, the defendant had been described as “threatening,” was evasive when asked about weapons, was alone with a single deputy while another deputy was down the st reet, and wore a fanny pack with the outline of a gun showing. We do not find these differences to be material.6 SIMONS, J.

We concur.

JONES, P.J.

BRUINIERS, J.

(A142090)