Filed 10/30/13 P. v. Villa CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----



THE PEOPLE,                                                                                  C070852

                   Plaintiff and Respondent,                                      (Super. Ct. No. 056138 &
                                                                                           077016)
         v.

RICARDO RAUL VILLA,

                   Defendant and Appellant.




         Defendant Ricardo Raul Villa appeals in two separate cases leading to a prison
sentence, contending one of the cases must be reversed because a prior decision of this
court was erroneous, and the other case must be reversed because the trial court
erroneously denied his motion to suppress. Disagreeing, we shall affirm.
                                                 BACKGROUND
         A. The Prior Appeal
         On April 27, 2010, we issued our opinion in defendant’s first appeal, summarizing
the case and our holding as follows:




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              “In case number 07-7016, a jury convicted defendant Ricardo Raul Villa of
      possession of a firearm by a person convicted of a serious felony, a felony (Pen.
      Code, § 12021.1, subd. (a)), and making a false representation of identity to a
      peace officer, a misdemeanor (Pen. Code, § 148.9, subd. (a)). The court found
      true a count charging felony failure to appear (Pen. Code, § 1320.5), and
      allegations defendant committed a crime while on bail, had a prior strike, and had
      served a prior prison term (Pen. Code, §§ 12022.1, subd. (b), 667, subds. (b)-(i),
      667.5, subd. (b)). In case number 05-6138, defendant pled no contest to active
      gang participation (Pen. Code, § 186.22, subd. (a)), and admitted a strike prior in
      exchange for the dismissal of other charges and a 16-month sentence, consecutive
      to the other case. The trial court sentenced defendant to 13 years and 8 months in
      prison. Defendant timely appealed.

              “On appeal, defendant contends trial counsel was incompetent in failing to
      file a suppression motion, and the trial court erroneously construed his motion to
      relieve retained counsel as a Marsden motion to relieve appointed counsel.
      (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) We agree with the latter
      claim and reverse the convictions in case number 07-7016. Because of our
      conclusion, we need not address defendant’s claim that trial counsel was
      incompetent in not filing a suppression motion in that case, because defendant is
      free to file such a motion on remand. We conclude the conviction and strike
      admission in case number 05-6138 must be affirmed, because defendant was
      represented by new counsel and the plea bargain was not affected by the trial
      court’s earlier error.

            “Accordingly, we reverse the judgment in case number 07-7016, affirm the
      judgment in case number 05-6138, vacate the sentence and remand for further
      proceedings.”
      Our disposition read: “The judgment in case number 07-7016 is reversed but the
judgment in case number 05-6138 is affirmed. The sentence is vacated, and the cause is
remanded for further proceedings consistent with this opinion.”
      B. Proceedings on Remand
             1. Suppression motion
      On January 31, 2011, after the cause was remanded, new counsel filed a
suppression motion, contending evidence was revealed during an unlawful detention.




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The People contended no detention occurred, only a consensual encounter followed by a
protective Terry patdown.1
        Officer Justin Raymond of the Davis Police Department testified that at about a
quarter to 1 a.m. on December 23, 2007, he was near a Motel 6 when he saw a Buick
with two males inside pull into the parking lot. This was a high-crime area, and the motel
owners had asked the police to increase patrols. Raymond asked Officer Dacany, who
was driving, to park the patrol car “about three parking spaces to the east of the
defendant’s vehicle so as not to block him in.” Raymond went to the passenger side of
the Buick and asked defendant for identification, which defendant said he did not have.
Raymond was not blocking the door, but stood so that if the door opened, it would not hit
him. It was cold, “about 35 degrees[,]” but defendant’s window was down. Defendant
said he had a California driver’s license but did not have it with him, that his name was
“Carlos Ruiz,” and that he had a certain birthdate, but Raymond was not able to match
the name and birthdate through dispatch. When Raymond told defendant about this lack
of a match, he noticed defendant “began to sweat. He stopped making eye contact with
me and he began to stutter when he spoke.” This all took about four to five minutes.2
During this time, another patrol car arrived. Raymond asked defendant “if he wouldn’t
mind stepping out of the car” and defendant did so. Defendant was wearing “extremely
baggy jeans, a white T-shirt that was almost down to his knees, and a black-hooded
sweatshirt or jacket.” Twice defendant looked “down on his front waistband.” Raymond
“could see a small bulge in his front-left waistband area” and then patted defendant
down, revealing a handgun.

______________________________________________________________________
1   See Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889].
2 At one point there is a typographical error in the reporter’s transcript, stating “45
minutes[,]” but it is clear from the context, as reported consistently elsewhere, that it was
a “four- to five-minute” period of time, not a “45-minute” period.

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       The trial court (Mock, J.) denied the motion, finding the encounter was not a
detention, but was consensual.
              2. Partial Plea, Trial, and Sentencing
       Defendant pleaded no contest to misdemeanor providing false information to a
peace officer and felony failure to appear (Pen. Code, §§ 148.9, subd. (a), 1320.5).
       A jury found defendant guilty of possession of a firearm by a convicted felon, with
the parties agreeing the felony was “serious” (Pen. Code, § 12021.1, subd. (a)).3
Defendant then admitted allegations that he had a strike (assault with a firearm, Pen.
Code, §§ 245, subd. (a), 667, subds. (b)-(i)), and had served a prior prison term (Pen.
Code, § 667.5, subd. (b)), and he admitted two allegations that he committed the offenses
while released on bail (Pen. Code, § 12022.1).
       Defendant made what was captioned as a Marsden motion, but what appeared to
be a motion to withdraw his plea in case No. 056138, based on incompetence of counsel.
The trial court denied the motion to withdraw the plea because we had affirmed the
judgment in that case on appeal. It then sentenced defendant to three years for the
firearm possession count, and one-third the midterm (eight months) on the failure to
appear count, doubled pursuant to the strike, plus two years for each on-bail enhancement
and one year for the prior prison term, for a total of 12 years and four months in case No.
077016. The 16-month sentence in case No. 056138 was confirmed, to run
consecutively, for a total state prison sentence of 13 years and eight months.
       Defendant timely filed this appeal, which at his request we later construed to
encompass both cases.



______________________________________________________________________
3  We deem it unnecessary to detail the evidence presented at trial, which included
Officer Raymond’s testimony that he found defendant in possession of a handgun, and a
stipulation that defendant had been convicted of a “qualifying” felony.

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                                      DISCUSSION
                                              I
                          The Plea Bargain in Case No. 056138
       Defendant claims that we must vacate his plea bargain in case No. 056138 because
the plea “was rendered ineffectual, legally void,” by our reversal of the judgment in case
number 077016. This claim is incorrect. We explained in our prior opinion, after
addressing the reversal in case No. 077016, the effect of that reversal on case No. 056138
as follows:

              “But, contrary to a passing contention by defendant, we conclude that
       reversal of the convictions in case number 07-7016 does not undermine the plea
       bargain in case number 05-6138. Defendant states the plea bargain ‘was expressly
       contingent on the survival’ of the convictions following the jury trial. This is not
       accurate. As stated above, the plea bargain contained a provision addressing what
       would happen ‘if for some reason something happened to the convictions in that
       case you went to trial on,’ specifically, that defendant faced a six-year exposure.
       The fact that ‘something happened’ to the convictions in case number 07-7016--
       namely, we have reversed them--was a circumstance contemplated by the bargain
       and is not a basis to vacate that bargain, brokered by new counsel.”
       We then explained in a footnote in part as follows:

              “If defendant is reconvicted in case number 07-7016, the sentence in case
       number 05-6138 would again be 16 months, consecutive to the sentence in case
       number 07-7016. If, and only if, defendant is not reconvicted in case number 07-
       7016, defendant would face a six-year exposure in case number 05-6138.”
       Therefore, the validity of the plea bargain in case No. 056138 was upheld in our
prior decision. Our resolution of that issue is law of the case and we will not reconsider it
in this appeal. (See People v. Stanley (1995) 10 Cal.4th 764, 786-787; People v. Dutra
(2006) 145 Cal.App.4th 1359, 1364-1365 (Dutra).)4

______________________________________________________________________
4 We need not address the People’s contention that collateral estoppel bars defendant’s
claim. (But see People v. Vogel (2007) 148 Cal.App.4th 131, 135-136.) Law of the case
adequately disposes of defendant’s claim in this appeal.

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       Further, contrary to defendant’s view, on remand the trial court lacked discretion
to do anything except obey our remittitur:

              “After the remittitur ‘the appellate court has no further jurisdiction of the
       appeal or of the proceedings thereon, and all orders necessary to carry the
       judgment into effect shall be made by the court to which the certificate is
       remitted.’ (Pen. Code, § 1265, italics added.) Thus, the trial court is revested with
       jurisdiction of the case, but only to carry out the judgment as ordered by the
       appellate court.” (Dutra, supra, 145 Cal.App.4th at p. 1366.)
       On remand in this case, the trial court properly did what we told it to do, namely,
after sentencing defendant in case No. 077016 upon reconviction in that case, the trial
court reinstated a consecutive 16-month sentence in case No. 06138.
                                              II
                                     Motion to Suppress
       Defendant contends the trial court should have granted his motion to suppress the
handgun found on his person. We disagree.
       A. The Law
       “In reviewing the denial of a motion to suppress, we must accept all facts in favor
of the ruling, including all reasonable inferences and deductions, if supported by
substantial evidence.” (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227
(Castaneda).) A consensual encounter does not implicate the Fourth Amendment. (See
In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).) As explained by one court:

              “An officer has every right to talk to anyone he encounters while regularly
       performing his duties, such as investigating illegal parking [citation] or cars
       parked in lots late at night [citation]. Until the officer asserts some restraint on the
       contact’s freedom to move, no detention occurs. [Citations.]

               “Castaneda was not detained simply because an officer approached him and
       began talking to him. And the officer’s requesting identification from him did
       not--by itself--escalate the encounter to a detention. [Citations.] The test is at
       what point in the conversation would ‘a reasonable person [no longer] feel free to
       leave. . . .’ [Citation.] This is an objective test, and ‘[n]either the officer’s
       uncommunicated state of mind nor the subjective belief of the individual citizen is


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       relevant[.]’” (Castaneda, supra, 35 Cal.App.4th at p. 1227; see People v. Terrell
       (1999) 69 Cal.App.4th 1246, 1253-1254.)

       And as explained by another court:

               “By now, it is generally understood that ‘“[t]here is nothing in the
       Constitution which prevents a police [officer] from addressing questions to anyone
       on the streets,” [citation]. Police officers enjoy “the liberty (. . . possessed by
       every citizen) to address questions to other persons,” [citation], although ordinarily
       the person addressed has an equal right to ignore his interrogator and walk away.”
       [Citation.]’ [Citations.] ‘As long as the person to whom questions are put remains
       free to disregard the questions and walk away, there has been no intrusion upon
       that person's liberty or privacy as would under the Constitution require some
       particularized and objective justification.’” (People v. Bennett (1998) 68
       Cal.App.4th 396, 401-402 (Bennett).)
       B. Analysis
       Defendant reargues the facts and reasonable inferences therefrom to assert that a
reasonable person in his position would not feel free to leave the encounter, particularly
because of the lateness of the hour, the arrival of another patrol vehicle, and the fact
defendant was a passenger, and therefore would have to leave on foot if he wanted to
leave and the driver did not want to leave. We are not persuaded. There is no evidence
of use or even threat of force, and defendant was free to decline the invitation to speak
with Officer Raymond and decline to get out of the car. Although defendant claims no
reasonable person “would have dared try just to get out of the car and walk away[,]” we
disagree. A reasonable person who did not wish to talk to the police could have done just
that, politely, or could have rolled up the window, or could have asked the driver to leave
the area. Instead, defendant chose to cooperate with the police, a right every person has
during a consensual encounter.
       The facts here are functionally similar to those in a prior case, as follows:

              “In the initial contact between Bennett and Officer Gonzales, nothing was
       done to restrain Bennett’s liberty in any way. Instead, Gonzales approached
       Bennett and asked, ‘Can I talk to you for a moment?’ Bennett replied, “Yes.’
       When Gonzales inquired whether Bennett was on parole, Bennett again answered


                                              7
      in the affirmative. When asked whether he would mind waiting in the back of the
      police car while Gonzales ran him for warrants, Bennett again agreed and,
      according to the testimony, was ‘very cooperative.’ Gonzales spoke in a polite,
      conversational tone and applied no physical or verbal force that might have caused
      a reasonable person to feel compelled to respond. From all appearances, Bennett's
      responses were all voluntarily given, and nothing was done by Gonzales to
      transmogrify the consensual tone of the conversation or stop Bennett from simply
      walking away.” (Bennett, supra, 68 Cal.App.4th at p. 402; see Manuel G., supra,
      16 Cal.4th at p. 822 [consensual encounter where officer asked minor “whether
      they could talk, and the minor responded to his questions” but did not “draw his
      gun or deter or stop the minor from continuing what he was doing”].)
      Although, as defendant points out, he was not on parole, that fact was not
significant to the finding of a consensual encounter in Bennett. Officer Raymond asked
defendant if “if he wouldn’t mind stepping out of the car” and defendant evidently did
not mind. Based on the record, “nothing was done by [Raymond] to transmogrify the
consensual tone of the conversation or stop [defendant] from simply walking away.”
(Bennett, supra, 68 Cal.App.4th at p. 402.)
                                    DISPOSITION
      The judgment is affirmed.

                                                       DUARTE                      , J.

We concur:

          NICHOLSON                   , Acting P. J.


          MAURO                        , J.




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