People v. Barcena CA2/6

Filed 9/28/16 P. v. Barcena CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B266127 (Super. Ct. No. 1452100) Plaintiff and Respondent, (Santa Barbara County)

v.

BRANDON DAVID BARCENA,

Defendant and Appellant.

Brandon David Barcena appeals a judgment following his guilty plea to possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)),1 possession of ammunition by a felon (§ 30305, subd. (a)(1)), and possession of an assault weapon (§ 30605, subd. (a)). Before his plea, Barcena moved to suppress evidence, which the trial court denied. We affirm. FACTS On January 18, 2014, agents of the California Department of Justice (DOJ) were observing activities at a gun show in Bakersfield, California. DOJ agent Matthew Knittle noticed Barcena going in and out of the gun show and back to his vehicle. Barcena was carrying an “AR15 style upper receiver” for a rifle, a “black ammunition canister,” and a white plastic bag. His conduct was suspicious. He appeared nervous; he was “looking over his shoulders.” The weather was not warm, but he was sweating.

1 All statutory references are to the Penal Code.

Barcena went to his car and placed the items in his trunk. Then he waited in the vehicle. Later he went back to the gun show. He inquired about the price of “.40 caliber handgun ammunition.” He went back to his car and drove away. Knittle testified that they did not know Barcena’s identity. “[I]n an effort to positively identify [him], we requested Bakersfield [police department] contact him.” If the Bakersfield police department was not able to obtain the information, DOJ would have maintained “visual surveillance” and asked the California Highway Patrol to “conduct a traffic stop.” Bakersfield Police Officer Jonathan Berumen received a dispatch call regarding the DOJ request and Barcena’s location. He drove to that location and saw Barcena’s car in the “drive-through” lane of a restaurant. Three other officers were at the scene. Berumen parked his patrol car so that it would not block Barcena’s “vehicle from leaving the drive-through.” He approached Barcena’s car, knocked on the passenger window and asked him if he would step out of the vehicle. Barcena “consented.” Berumen asked if Barcena would show him his license or identification. Barcena agreed and produced the identification. Barcena talked to one of the officers about what he had purchased at the gun show. He “consented” to a search of the trunk of his vehicle to show the officers what he purchased. After that search, Barcena drove away. The police obtained a search warrant for Barcena’s home. They seized a gun, an assault rifle and ammunition, all of which were illegal for him to possess as a felon. After the People filed the felony complaint, Barcena filed a motion to suppress evidence, claiming the items were seized as a result of “illegal police conduct” in “violation of the Fourth Amendment.” At the motion to suppress hearing, Barcena testified he did not feel free to leave the area because police handcuffed him and Berumen’s car blocked him from leaving. Berumen testified that Barcena was not handcuffed, his patrol car did not block him, and Barcena was free to leave at anytime. Berumen said that it was a consensual encounter and that Barcena “consented to everything that [he] asked him.”