P. v. Fernandez
Filed 6/17/13 P. v. Fernandez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOSE BARAJAS FERNANDEZ,
Defendant and
Appellant.
G047770
(Super. Ct.
No. 10CF2953)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, James Edward Rogan, Judge. Affirmed.
Daniel J. Kessler, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by
Plaintiff and Respondent.
* * *
We
appointed counsel to represent Jose
Barajas Fernandez on appeal. Counsel filed a brief that set forth the facts of
the case. Counsel did not argue against
his client but advised the court no issues were found to argue on appeal. Defendant was given 30 days to file written
argument on his own behalf. Defendant
subsequently filed a brief with this court.
Defendant’s brief refers
to many matters outside the record.
Defendant also contends his lawyer failed to properly pursue a motion to
suppress and, although he does not use this language, in effect, accuses both
his trial and appellate attorneys of inadequate representation. Where an acceptable explanation may exist or
the record does not reflect the reason for counsel’s behavior, an inadequate
representation claim cannot be considered on appeal. (People
v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) To pursue these issues, defendant must do so
by way of a petition for habeas corpus.
(Id.
at 265.)
We have independently
reviewed the trial record and found no arguable issues. (People
v. Wende (1979) 25 Cal.3d 436.)
We therefore affirm the judgment.
FACTS
While on patrol, Santa
Ana Detective Pedro Duran saw defendant standing near a liquor store. Duran addressed defendant and asked if he had
anything illegal on his person; defendant denied he did. But Duran noticed a bulge under defendant’s
oversized T-shirt and suspected he was carrying a weapon. Defendant ran away when Duran sought to search
him. Defendant then turned around and
appeared to be reaching for a weapon.
Duran thereupon fired his Taser at defendant. Defendant fell to the ground but brought his
hands to his waistband, inducing Duran to fire his Taser once again. Duran asked defendant whether he had a gun;
defendant stated he had a “strap,†a street term for a gun. Duran called for a backup and Officer Padron
arrived shortly thereafter. When they
searched defendant, they found a loaded pistol and a loaded magazine in a shoulder
holster under his shirt.
The district attorney
filed an information charging defendant with
felon (Former Pen. Code, § 12021, subd. (a)(1) added by Stats. 1953, ch.
36, § 1, p. 654 and repealed by Stats. 2010, ch. 711, § 4, eff. Jan.1, 2012 and
reenacted without substantive change by § 29800, subd. (a)(1)) and street
terrorism (Pen. Code, § 186.22, subd. (a)). The information further alleged that
defendant had previously been convicted of violating Health and Safety Code
section 11352, subdivision (a) and alleged he had served four separate
prison terms. A jury convicted defendant
on both counts and, in a bifurcated trial, the court found the enhancements
were true. The court sentenced defendant
on both counts, but after the California Supreme Court decided
Cal.4th 1125, granted his motion to recall the sentence and then
re-sentenced defendant. The court
sentenced defendant to a term of six years computed as follows: three years on the count charging him with
possession of a firearm, and one year each for three priors; the court struck
one of the priors. The court vacated the
conviction for street terrorism.
DISCUSSION
Before trial, defendant
made a motion under People v. Marsden
(1970) 2 Cal.3d 118 to replace appointed counsel. The court gave defendant a full opportunity
to explain the reasons for his dissatisfaction with counsel and appropriately
denied the motion. None of the facts
asserted by defendant indicated either a conflict of interests or inadequate
representation.
Defendant’s lawyer filed
a motion to suppress. The prosecutor
filed opposition. The clerk’s transcript
indicates that when the motion was scheduled to be heard, defendant withdrew
the motion. We were not supplied with a
transcript of these proceedings. The
moving papers indicate the motion was based on the warrantless detention and
search of defendant. But as the
prosecutor’s opposition notes, the original contact between defendant and Duran
initial questioning of defendant did not constitute a “seizure.†(
194 [122 S.Ct. 2105, 153 L.Ed.2d 242].)
“Law enforcement officers do not violate the Fourth Amendment’s
prohibition of unreasonable seizures merely by approaching individuals on the
street or in other public places and putting questions to them if they are
willing to listen.†(
potential weapon under defendant’s T-shirt, he would have been justified in
detaining defendant if had he not run away.
We therefore cannot find fault with defendant’s attorney withdrawing the
motion to suppress.
We were unable to discover
any other arguable issue in the record.
DISPOSITION
The judgment is
affirmed.
RYLAARSDAM,
ACTING P. J.
WE CONCUR:
BEDSWORTH, J.
MOORE, J.
