People v. Bernard CA5

Filed 7/12/24 P. v. Bernard CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F085546 Plaintiff and Respondent, (Super. Ct. No. BF188130A) v.

EVENS MARI BERNARD, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Kern County. Tiffany Organ-Bowles, Judge. Toni White, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Hannah Janigian Chavez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Peña, Acting P. J., Snauffer, J. and DeSantos, J.

Defendant Evens Mari Bernard was found guilty of possession of methamphetamine while armed with a loaded, operable firearm, possession of metal knuckles, and possession of methamphetamine. Defendant was sentenced to two years. On appeal, defendant contends the trial court erred in denying his motion to suppress evidence obtained during the patdown search of his person. Defendant argues there were no articulable facts to create a reasonable suspicion defendant was armed or dangerous. Defendant also argues his conviction for possession of methamphetamine should be reversed since possession of methamphetamine is a lesser included offense of possession of methamphetamine while armed. The People agree the trial court erred in denying defendant’s motion to suppress. While the People disagree the possession of methamphetamine is a lesser included offense of possession of methamphetamine while armed, the issue is moot. The trial court erred in denying defendant’s suppression motion. We reverse defendant’s convictions and remand the matter with directions to the court to vacate its order denying defendant’s suppression motion and enter an order granting defendant’s suppression motion under Penal Code section 1538.5. PROCEDURAL BACKGROUND On May 10, 2022, the Kern County District Attorney filed an information charging defendant with possession of methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code,1 § 11370.1, subd. (a); count 1), possession of metal knuckles (Pen. Code, § 21810; count 2), and possession of methamphetamine (§ 11377, subd. (a); count 3). On May 31, 2022, counsel for defendant filed a motion to suppress (Pen. Code, § 1538.5). Defendant sought suppression of all evidence obtained during the patdown