People v. Bester CA1/4

Filed 2/25/14 P. v. Bester CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A137728 v. MARK DUBLIN BESTER, (San Francisco City & County Super. Ct. No. 219045) Defendant and Appellant.

I. INTRODUCTION Appellant Mark Dublin Bester appeals from his conviction for violating Penal Code section 25400, subdivision (a)(2)1, possession of a concealed firearm, which resulted from his no contest plea to that charge. The plea and conviction followed the denial of a motion to suppress evidence (§ 1538.5). As he did below, appellant contends that the search of, and subsequent seizure of evidence from, his backpack was not justified as a search incident to arrest because no custodial arrest occurred, thus violating his Fourth Amendment rights. We disagree and affirm. II. FACTS AND PROCEDURAL HISTORY At about 7:20 p.m. on October 6, 2012, San Francisco Police Officer Broderick Elton and three other officers were on patrol near 245 Jefferson Street. Officer Elton

1 All further statutory references are to the Penal Code unless otherwise indicated.

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smelled a strong odor of marijuana, and observed appellant standing in an alcove next to Joe’s Crab Shack restaurant, holding what Officer Elton believed to be a marijuana cigarette in his mouth. Officer Elton testified that Jefferson Street is in the Fisherman’s Wharf neighborhood, and to get into the public alcove where appellant was standing, the officers had to walk through a tight corridor approximately five- to six-feet wide. The doorway to Joe’s Crab Shack was approximately six feet into the alcove. Once the officers were inside the alcove, Officer Elton saw that appellant was about to light the marijuana cigarette. When appellant saw the police officers, he stated, “I haven’t even lit it up. I have a medical marijuana card.” In response, Officer Elton asked appellant to provide identification and the medical marijuana card. Appellant was not able to provide either of those documents. Officer Elton then told appellant he would need to be searched because “[appellant] was under arrest for the marijuana offense,” and asked appellant to take off his backpack as well. Appellant removed his backpack, and held it in front of himself. When appellant moved the backpack towards Officer Elton, Officer Elton smelled a stronger odor of marijuana. As Officer Elton placed his own hands on appellant’s bag, appellant told the officer that he did not want him to search his bag, and that Officer Elton did not have a right to look into his backpack. Appellant then pulled the backpack towards himself, and Officer Elton grabbed the sides of the backpack, and ordered appellant to release it. At that time, Officer Elton felt a “weighted object inside the backpack, and it felt heavy.” The object felt like a metal, small rectangular-type object which could be a handgun. Thus, Officer Elton feared that there was a weapon in appellant’s bag, in addition to possible contraband. Fearing a weapon or possible contraband inside appellant’s bag, Officer Elton then pried appellant’s hands off the backpack and ordered him to sit down by the ledge against the wall. While the other officers were standing with appellant, Officer Elton opened appellant’s backpack and discovered a semi-automatic handgun with a gap in the handle, inside which Office Elton saw ammunition. Officer Elton alerted the other officers to the