Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. GA078633, Laura F. Priver, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
JOHNSON, J.
Angel Robert Zuniga appeals from the judgment entered following his plea of no contest to one count of possession of ammunition by a person prohibited from owning or possessing a firearm, in violation of Penal Code section 12316, subdivision (b)(1).
Zuniga, represented by the public defender, initially pleaded not guilty. Zuniga filed a Pitchess motion, which the trial court granted. After an in camera hearing, the trial court found no discoverable information.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Zuniga filed a motion to suppress evidence. At the hearing, San Gabriel Police Officer Enrique Deanda testified that on December 12, 2009 he and his partner Officer James Drabos responded to a 911 call describing a fight at a restaurant which was a known gang hangout. Officer Deanda saw three males standing outside the restaurant with shaved heads and wearing gang attire, who went inside the restaurant after they looked in the direction of his police vehicle. Officer Deanda went to the front door and Officer Drabos went around to the back of the restaurant, saw Zuniga, and called out “Stop” to Zuniga. Officer Deanda then went to the back with Officer Drabos. Officer Deanda followed Zuniga and asked him to come here to talk, and Zuniga faced him. Zuniga was holding an open container of beer in violation of the San Gabriel Municipal Code.
Officer Deanda did a pat-down search for weapons based on the restaurant being a gang hangout and Zuniga’s gang attire. After Officer Drabos told Officer Deanda he had found a loaded handgun close to where Zuniga had been standing, the officers handcuffed Zuniga and Officer Deanda did a more thorough pat-down search, finding a.30-caliber bullet in Zuniga’s left front pocket. Officer Deanda then ran a records check and found that Zuniga’s parole conditions for a prior conviction did not allow him to possess ammunition, and there was an outstanding arrest warrant for Zuniga out of San Bernardino County.
Officer Drabos testified that when he and Officer Deanda arrived at the restaurant, he recognized Zuniga from previous contacts as one of the three men in front of the restaurant, who looked surprised and scared when they saw the officers and ran inside the restaurant. Officer Drabos ran to the rear of the restaurant, saw Zuniga walking away from him in the parking lot, and ordered Zuniga to stop. Zuniga kept walking and stopped near a large bird of paradise plant, where he stood for several seconds before turning and coming toward Officer Drabos. Officer Drabos could see Zuniga’s upper torso and head as he stood by the plant, because there were cars partially blocking the view. After Officer Deanda first patted Zuniga down, Officer Drabos looked in the bird of paradise plant and found a loaded.380-semiautomatic handgun.
The court denied the motion to suppress, concluding that the discovery of the weapon in the bird of paradise and the totality of the circumstances provided probable cause for the second pat-down search, which recovered the ammunition in Zuniga’s pocket.
Zuniga then filed a Marsden motion because his public defender told Zuniga he could not guarantee Zuniga would win at trial, and had made a strategic decision not to put on a witness. The court denied the motion.
People v. Marsden (1970) 2 Cal.3d 118.
Zuniga waived his constitutional rights and pleaded no contest. The court sentenced Zuniga to the mid-term of two years, and awarded Zuniga 230 actual days plus 230 good time/work time days, for a presentence credit of 460 days. The court also imposed fines and fees.
Zuniga filed a timely notice of appeal from the motion to suppress. We appointed counsel to represent him on appeal. After examining the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. On November 5, 2010, we advised Zuniga he had 30 days in which to personally submit any contentions or issues he wished us to consider. To date, we have received no response.
We have examined the entire record, and we are satisfied that Zuniga’s appellate counsel has fully complied with his responsibilities and no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109–110; People v. Wende (1979) 25 Cal.3d 436, 441–442.)
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., CHANEY, J.