Filed 3/10/16 P. v. Colley CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


THE PEOPLE,
         Plaintiff and Respondent,                                   A142090

v.                                                                   Order Modifying Opinion [No
BRIAN DOMINIC COLLEY,                                                Change in Judgment]
         Defendant and Appellant.                                    (San Mateo County
                                                                     Super. Ct. No. SC076122A)



THE COURT:

         It is ordered that the opinion filed February 16, 2016 be modified as follows:
         (1) On page 4, replace the last sentence of the last full paragraph with the
following:
         Under the totality of the circumstances—the late hour, appellant’s nervous and
evasive behavior, and the officers’ experience with lightweight guns—the search of the
gun case was not unreasonable.1
1
  United States v. Leo (7th Cir. 2015) 792 F.3d 742, in which the Seventh Circuit found
the search of a backpack unreasonable, is distinguishable. In contrast to the facts of Leo,
this case involves a traffic stop; appellant was not handcuffed; before exiting the car
appellant appeared to rummage around in his backpack while shielding his actions from
the officers’ view; the officers interviewed appellant and verified the case was marketed
as a gun case before conducting the search; and the officers suspected appellant was
under the influence of controlled substances.


                                                             1
         (2) On page 5, renumber footnote 6 as footnote 7.
         There is no change in the judgment.
         Appellant’s petition for rehearing is denied.




Dated:                                                       , P. J.



                                               2
Filed 2/16/16 P. v. Colley CA1/5 (unmodified version)
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A142090
v.
BRIAN DOMINIC COLLEY,                                                (San Mateo County
                                                                     Super. Ct. No. SC076122A)
         Defendant and Appellant.


         Defendant and appellant Brian Dominic Colley appeals following his no contest
plea to possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1))2 and
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). His sole
contention on appeal is the trial court erred in denying his motion to suppress evidence
discovered following a search of his gun case. We affirm.
                                                  BACKGROUND
         About 1:10 a.m. on March 28, 2012, Officer Randy Vigus and another officer
conducted a traffic stop.3 Vigus determined the driver had an outstanding warrant for his
arrest and the officers arrested him. The only passenger, appellant, remained in the car
for several minutes while a third officer, Aaron Wong, watched him. Wong testified
appellant was “very nervous” and “fidgety” during this time.


2
    All undesignated section references are to the Penal Code.
3
    Appellant did not challenge the legality of the traffic stop.


                                                             1
       The officers told appellant to step out of the car with his belongings. Wong
testified appellant was “very nervous, very fidgety,” and “looked around rapidly inside
the vehicle.” Appellant took a backpack from behind the driver’s seat and, as he stepped
out of the car, leaned into the front passenger compartment with the backpack in front of
him, blocking Wong’s view for 30 to 60 seconds as he apparently manipulated the
backpack. When appellant finally stepped away from the car, Wong saw a black plastic
container protruding from the top of the backpack. Wong believed the container was a
gun case, based on his experience seeing hundreds of such containers. Wong told
appellant to put the backpack down and appellant instead started turning away. The
officers took the backpack from him and placed it near a patrol car about 25 feet away.
       Appellant told the officers the case was “a CD case” and held “software.” He
made inconsistent statements about whether the backpack was his. He was “extremely
fidgety, anxious, sweaty,” with difficulty “paying attention [and] keeping his eyes open.”
Vigus suspected he was under the influence of a controlled substance. Wong conducted
an internet search and determined the container was advertised as a gun case. The gun
case was very light, but the officers had experience with extremely lightweight guns.
Vigus searched the gun case and found compact discs; a hose commonly used for the
ingestion of controlled substances, which was covered with a white residue; and Q-tips.4
       The trial court denied appellant’s motion to suppress, concluding the search was
reasonable in light of the circumstances, including the location on the “side of the road”
and the “attitude of the defendant.” The court found “[t]he officers are reasonable in
assuming that a gun case contains a gun. The fact that it doesn’t weigh very much
doesn’t mean that there can’t be a gun in there as is the reasonable assumption.”
                                       DISCUSSION
       “In reviewing the trial court’s suppression ruling, we defer to its factual findings if
supported by substantial evidence. We independently assess the legal question of

4
  Following this discovery, appellant was arrested and the police searched his person and
the rest of his backpack, finding a firearm and methamphetamine. Appellant does not
challenge these searches on appeal.


                                              2
whether the challenged search or seizure satisfies the Fourth Amendment.” (People v.
Brown (2015) 61 Cal.4th 968, 975.)
I. Burden of Proof
       Appellant argues the trial court erroneously assigned the burden of proof to
appellant. Appellant points to a comment made during closing arguments. After the
People made their closing argument, defense counsel informed the court, “I actually have
a second argument I should have made at the outset.” The trial court responded, “You’ve
got the burden. You’ve got rebuttal. [¶] If it turns out to be new, you [presumably, the
prosecutor] can respond to it.” Defense counsel replied, “That’s exactly right.”5
       Under section 1538.5, “[a] defendant may move” to suppress evidence. (§ 1538.5,
subd. (a)(1).) “[W]hen defendants move to suppress evidence, they must set forth the
factual and legal bases for the motion, but they satisfy that obligation, at least in the first
instance, by making a prima facie showing that the police acted without a warrant. The
prosecution then has the burden of proving some justification for the warrantless search
or seizure, after which, defendants can respond by pointing out any inadequacies in that
justification.” (People v. Williams (1999) 20 Cal.4th 119, 136 (Williams).)
       Appellant did have a burden—the “ ‘burden of raising an issue,’ ” meaning “a
party’s obligation to bring an issue to the attention of the trial court and the opposing
party . . . .” (Williams, supra, at p. 128.) The trial court’s comment appeared to refer
solely to this burden. Of course, the prosecutor still bore the burden of proving the
warrantless search or seizure was justified. (Id. at p. 136.) Appellant has pointed to
nothing in the record suggesting the trial court did not understand this burden of proof.




5
 Though it is not entirely clear that the court’s first reference to “you” meant appellant,
we accept appellant’s assumption to that effect.


                                               3
II. The Suppression Motion Was Properly Denied
         Appellant argues the People failed to prove the search of the gun case was justified
by the officers’ reasonable suspicion that he was armed and dangerous. We disagree, and
find the search justified on this ground.6
         A law enforcement officer may conduct “a reasonable search for weapons for the
protection of the police officer, where he has reason to believe that he is dealing with an
armed and dangerous individual, regardless of whether he has probable cause to arrest the
individual for a crime. The officer need not be absolutely certain that the individual is
armed; the issue is whether a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in danger. [Citations.] And in
determining whether the officer acted reasonably in such circumstances, due weight must
be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific
reasonable inferences which he is entitled to draw from the facts in light of his
experience.” (Terry v. Ohio (1968) 392 U.S. 1, 27, fn. omitted; see also People v.
Mendoza (2011) 52 Cal.4th 1056, 1081-1082.)
         Appellant concedes “Wong’s concern when he first spied the gun case justified
some action to clarify whether the case contained a weapon.” He argues once the officers
seized the gun case, they could no longer reasonably believe it held a gun because it was
so light. At the suppression hearing, Wong testified he was aware of “exceedingly light”
guns. Vigus testified he had a gun that weighs “very, very, very little,” and had
previously “dealt with a gun that it would have been very difficult to tell that if it was in
that case when I picked it up and placed it on the patrol car. There are guns out there that
would make that extremely difficult.” Under the totality of the circumstances—the late
hour, appellant’s nervous and evasive behavior, and the officers’ experience with
lightweight guns—the search of the gun case was not unreasonable.
         Appellant also argues that when the officers removed the gun case from his reach
they eliminated the danger and correspondingly eliminated the need to search the case. A

6
    We need not and do not address the alternative justification raised by the People below.


                                               4
similar argument was rejected in People v. Ritter (1997) 54 Cal.App.4th 274 (Ritter). In
Ritter, an officer removed a fanny pack, the outside of which appeared to show the
outline of a gun, from the defendant and subsequently searched it. (Id. at p. 277.) The
defendant argued “after he removed the fanny pack and the risk was eliminated, the
search was no longer justified as a safety measure.” (Id. at p. 278.) The court disagreed,
concluding “the deputy did not act unreasonably in taking preventive measures to ensure
that there were no weapons within defendant’s immediate grasp during the ongoing
investigation,” and finding “the deputy’s prudence should not be faulted for a failure to
pat down the fanny pack while defendant was wearing it.” (Id. at p. 280.) We similarly
decline to find the officers’ search of appellant’s gun case would only be justified if
conducted within arms’ reach of appellant.7
                                      DISPOSITION
       The judgment is affirmed.




7
  Appellant argues Ritter is distinguishable because in that case, the defendant had been
described as “threatening,” was evasive when asked about weapons, was alone with a
single deputy while another deputy was down the street, and wore a fanny pack with the
outline of a gun showing. We do not find these differences to be material.


                                              5
                    SIMONS, J.




We concur.




JONES, P.J.




BRUINIERS, J.




(A142090)



                6
