Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Roger Ito, Judge. Los Angeles County Super. Ct. No. VA104970
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
EPTSTEIN, P.J.
Athen Alnodo Nelson appeals from the judgment entered following the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5 and his no contest plea to possession of a firearm by a felon. (Pen. Code, § 12021, subd. (a)(1).) Imposition of sentence was suspended and he was placed on formal probation for three years under various terms and conditions. He contends the court erred in denying his suppression motion. For reasons stated in the opinion, we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The evidence at the suppression hearing established that on March 20, 2008, at approximately 6:50 p.m., Los Angeles County Deputy Sheriff Robert Clarke was on patrol with his partner, Deputy Roberts, in the area of Hooper Avenue near 66th Street in Los Angeles. Deputy Clarke knew the area to have a lot of “weapons-related activity.” Deputy Clarke observed a person riding a bicycle in the middle of the street, and his partner made a U-turn to make a traffic stop, to either warn or cite the bicyclist for a Vehicle Code violation. By the time the officers made the turn and approached the bicyclist, he was stopped in the street talking to appellant, who was standing on the sidewalk, approximately five feet away.
The deputies stopped their vehicle and as they approached the bicyclist, appellant looked at the deputies “with a startled look on his face.” Appellant reached into his right front pocket with his right hand, quickly pulled his hand out of the pocket, and then quickly turned to the left. Appellant’s pants were thin and Deputy Clark observed a bulge resembling the shape of a handgun in appellant’s right front pocket. Based on the fact that the area was known for weapons violations, the deputy’s own observations, and the nervous and startled look on appellant’s face, the deputy feared appellant was carrying a gun and detained him to do a quick, patdown search for weapons. The deputy had appellant, as well as the man on the bicycle, put their hands on the hood of the patrol vehicle and then told appellant to put his hands behind his back. As appellant was putting his hands behind his back, he stated, “just so you know, I got a gun in my pocket.” The deputy then recovered a loaded firearm from appellant’s pocket.
In defense, Walter Harris testified that he was riding his bike toward the side of the street, not interfering with traffic, intending to visit appellant. Mr. Harris stopped his bike in front of appellant’s house and talked to appellant’s cousin for a short while before appellant emerged from the house. After talking to appellant, Mr. Harris got on the bike preparing to leave when the deputies drove up in their patrol car. The deputies told Mr. Harris to put his hands against the car and told appellant and his cousin to come out of the yard, which they did. The deputies then searched all of the men. Mr. Harris observed the deputies remove a small revolver, wrapped in a red rag, from appellant’s pocket.
Appellant testified that he was working in the yard while talking to Mr. Harris, who was standing outside the gate. Appellant was wearing work clothes and his pants were baggy. He and his cousin were inside the yard when the deputies ordered them out of the yard and to place their hands on the patrol car. Appellant did not want any problems, so he complied. Appellant claimed the gun was “broken” and that he was carrying it because “[they] have a problem.” He had been shot twice in front of his house, watched his brother die in front of the house, there were gangs in the area and, without a weapon, a person would be shot. Appellant had the gun to “scare the youngsters off.”
In denying the suppression motion, the court indicated it was an extremely close case but, if the court believed Deputy Clarke, there was an appropriate reason to temporarily detain appellant and pat him down for weapons. The court found the officer had testified consistently and unequivocally and that appellant and his witness were less credible.
DISCUSSION
“‘An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] “The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.” [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law,... is also subject to independent review.’ [Citation.]” (People v. Alvarez (1996) 14 Cal.4th 155, 182, quoting People v. Williams (1988) 45 Cal.3d 1268, 1301; accord, People v. Ayala (2000) 23 Cal.4th 225, 255.)
“An appellate court cannot substitute its judgment for that of the trial court on the facts unless the testimony as to a particular fact ‘in the light of the undisputed facts, is so inherently improbable and impossible of belief as in effect to constitute no evidence at all.’ [Citations.]” (Pierson v. Superior Court (1970) 8 Cal.App.3d 510, 518-519.)
The Fourth Amendment prohibits unreasonable searches and seizures. “A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231; People v. Williams (2007) 156 Cal.App.4th 949, 958-959.) Once a person is properly detained, an officer may conduct a weapons search only when there is reason to believe the search is necessary for the officer’s protection and the protection of nearby persons. (Terry v. Ohio (1968) 392 U.S. 1, 27.) Accordingly, to justify the search, “[t]he officer must be able to point to specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous. [Citations.]” (People v. Dickey (1994) 21 Cal.App.4th 952, 956.)
Here, Deputy Clarke testified that the area where they encountered appellant was known for weapons related activity. Appellant himself testified that he felt the need to carry a weapon because of such activity in the neighborhood and because he had been shot on two occasions in front of his house and had witnessed his brother’s death at the location. Additionally, Deputy Clark testified that based on appellant’s startled look, his furtive behavior, and the bulge resembling the shape of a handgun in appellant’s pocket, he was of the opinion appellant was armed and dangerous. Appellant’s detention and patdown search for weapons was justified.
Contrary to appellant’s claim, we do not find the deputy’s testimony inherently improbable and impossible to believe. (See Pierson v. Superior Court, supra, 8 Cal.App.3d at p. 519.)
To the extent appellant argues his search was invalid because there was no basis to search Mr. Harris, that contention is unavailing. All that occurred before Deputy Clarke formed the opinion that appellant was armed and dangerous was that the deputy approached Mr. Harris. “[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street....” (Florida v. Royer (1983) 460 U.S. 491, 497-498.) Further, despite appellant’s claim, there is no evidence in the record that the search was premised on racial profiling. (See People v. McKay (2002) 27 Cal.4th 601, 622-623.)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.