People v. Tran CA1/4

Filed 5/15/15 P. v. Tran CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A137715 v. CHAU MAHN TRAN, (Solano County Super. Ct. No. FCR296899) Defendant and Appellant.

After pleading guilty to a single count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), appellant was given a suspended sentence and placed on 36 months probation. He then filed a timely notice of appeal from the trial court’s earlier order denying his motion to suppress pursuant to Penal Code section 1538.5. His appointed appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), in which she raises no issue for appeal and asks this court for an independent review of the record. Counsel attests that appellant was advised of his right to file a supplemental brief, but he has not exercised that right. Having reviewed the entire record, we conclude there are no arguable issues on appeal, and affirm the judgment. I. FACTUAL AND PROCEDURAL BACKGROUND A. Motion to Suppress Hearing Fairfield Police Dispatcher Stephanie Cannon was on duty on November 5, 2012 at approximately 12:15 a.m. At that time, another dispatcher received two calls reporting that an Asian male was at the Solano Lodge on North Texas; he was banging on hotel

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room doors and yelling. The man then moved into the lodge’s parking lot on his bicycle and began waving a gun around. Cannon believed that the calls were received from two individuals who did not want to get involved. Cannon did not speak to either caller, but her impression was that the callers were anonymous. When the information appeared on Cannon’s computer screen, she broadcast this report, sending it specifically to Officer Pedro Officer Arroyo, because the Solano Lodge was within his beat. At about 12:15 a.m. on November 5, 2012 Officer Arroyo received the dispatch directing him to go to the Solano Lodge. Officer Arroyo was told to look for an Asian male adult on a bicycle who was waving a gun. When Officer Arroyo approached the Solano Lodge, less than two minutes after receiving the report, he saw an Asian male leaving the lodge area on a bike. The man was not waving a gun, and Officer Arroyo did not see anything indicating that he had a firearm. Officer Arroyo identified appellant as the person he had observed that night. As appellant rode past him, Officer Arroyo turned on his patrol car’s overhead lights. Officer Arroyo contacted appellant, pointed his gun at him and ordered him to get on the ground; appellant complied. Officer Arroyo felt compelled to draw his gun because the dispatch report had indicated that the Asian male had a gun. Appellant made no furtive movements when he was getting on the ground. At the time of the detention, Officer Arroyo had not seen appellant break any laws other than riding a bike on the sidewalk, which was a violation of the Fairfield Municipal Code. When cover officers arrived, Officer Arroyo handcuffed appellant, securing both hands behind his back. Once appellant was on the ground, Officer Arroyo checked appellant’s lower back with his hand using a flat circular motion to make sure he was not carrying a firearm in this area. This search did not yield a gun or incriminating evidence. Officer Arroyo then stood appellant up next to the officer’s patrol car and informed appellant that he was going to conduct a pat-down search. Officer Arroyo patted down appellant’s outer clothing by starting at the top of his body, going down to the waist, and then going down each leg. While touching appellant’s top left shoulder pocket, Officer Arroyo felt a substance that he believed “was