Filed 7/15/15 P. v. Ramirez CA1/3
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A144538
v.
AMY MAGELINE RAMIREZ,                                                    (Contra Costa County
                                                                         Super. Ct. No. 5-131705-6)
         Defendant and Appellant.


         Defendant Amy Ramirez appeals from the judgment entered following her no
contest plea to possession of methamphetamine and heroin. She contends the court erred
in denying her motion to suppress made prior to entry of her plea. Her appointed
appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, in
which he raises no issue for appeal and asks this court for an independent review of the
record. Counsel attests that defendant was advised of her right to file a supplemental
brief, but she has not exercised that right. Having reviewed the entire record, we conclude
there are no arguable issues on appeal and affirm the judgment.
                                   Factual and Procedural Background
         Defendant was charged by criminal complaint with one felony count of
transporting heroin (Health & Saf. Code, § 11352, subd. (a)), one felony count of
transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), one felony
count of possessing heroin (Health & Saf. Code, § 11350, subd. (a)), and one felony
count of possessing methamphetamine (Health & Saf. Code, 11377, subd. (a)).




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       In advance of the preliminary hearing, defendant filed a motion to suppress
pursuant to Penal Code section 1538.5. The following evidence was presented at the
preliminary hearing:
       The arresting officer testified that on the afternoon of March 31, 2013, he saw a
man illegally pushing a shopping cart on the Delta de Anza Regional Trail behind the
Tower Mart in Contra Costa County. The officer detained the man and determined that he
was a parolee. The man told the officer that a friend was in the Tower Mart and would be
joining him shortly. The officer then saw defendant walking towards him from the
direction of the Tower Mart. Defendant approached the officer and asked what was going
on. The officer told her that he was arresting the man on a parole hold. He immediately
asked defendant her name and whether she was on probation or parole. Defendant told
the officer her name and reported that she was on probation without a search clause. The
officer testified that defendant had scabs and scars on her face, including “an open sore
that was actually freshly bleeding on her ear,” all of which caused him to suspect
intravenous drug use and led him to ask her to roll up her sleeves. When she rolled up her
sleeve, he observed marks on her arm that he believed were consistent with intravenous
drug use.
       In response to the officer’s continued questioning, defendant admitted that she
used drugs, described herself as a drug addict, and reported that she had smoked
methamphetamine that morning. The officer asked if defendant was in possession of any
controlled substances, and defendant stated that she had a small amount of
methamphetamine and heroin in her purse. This verbal exchange occurred within five
minutes of their initial encounter. The officer searched defendant’s purse and found small
amounts of substances the defense stipulated for purposes of the preliminary hearing and
suppression hearing were methamphetamine and heroin. In the officer’s opinion,
defendant possessed a useable amount of both controlled substances.
       The court denied the motion to suppress and held defendant to answer on the two
possession offenses. The magistrate explained, “While I think it’s a close call, certainly
the initial encounter was consensual and that the defendant walked up to the police, or to


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the officer, and made inquiries about the status of her friend. [¶] The fact that the officer
testified that the defendant had open sores and freshly bleeding — was freshly bleeding
on her ear would be enough to be concerned about the welfare of the person, and then we
have the defendant’s own admission within minutes of the initial encounter about the
drug use.”
       Thereafter, the District Attorney filed an information charging defendant with the
four offenses set forth in the previously filed criminal complaint.
       On January 2, 2014, defendant renewed her motion to suppress. Based on its
review of the preliminary hearing transcript, the trial court upheld the denial of
defendant’s motion to suppress. The court explained, “I think it’s clear to me that the
evidence before the magistrate in this case supports the fact that the officer . . . delivered
his request to the defendant to roll up her sleeves in such a manner that it was clearly
consensual. A reasonable person would not feel — that there was nothing coercive about
that request. [¶] And since the defendant was the one that approached the police officer to
begin, there’s nothing in the record that suggests she wasn’t just free to retreat at that
time. There’s also, on this record, sufficient information even without the sleeves being
rolled up, even at that point it seems to me that there was probable cause to detain. [¶] So,
even if there had been something coercive or crossing the line about the questioning,
seems to me that there still would be a probable cause to detain. For these reasons, it
seems to me that the motion should be denied.”
       After successfully moving to dismiss the transportation charges and reduce the
remaining felony possession charges to misdemeanors, defendant entered a no contest
plea to one count of possessing heroin and one count of possessing methamphetamine.
Defendant entered her no contests pleas with the understanding that she would be placed
on probation with a time-served jail term. Defendant was sentenced in conformity with
her plea bargain.
       Defendant filed a timely notice of appeal “based on the denial of a motion to
suppress evidence under Penal Code section 1538.5.”



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                                         Discussion
       “ ‘In reviewing a suppression ruling, “we defer to the . . . court’s express and
implied factual findings if they are supported by substantial evidence, [but] we exercise
our independent judgment in determining the legality of a search on the facts so
found.” ’ ” (People v. Tully (2012) 54 Cal.4th 952, 979.) Where the motion to suppress is
denied by the magistrate and renewed in the superior court upon the preliminary hearing
transcript alone, we are concerned solely with the factual findings of the magistrate.
(People v. Gentry (1992) 7 Cal.App.4th 1255, 1261.)
       Substantial evidence supports the magistrate’s finding that the encounter was
consensual. (People v. Siripongs (1988) 45 Cal.3d 548, 566-567 [The question of the
voluntariness of the consent is to be determined in the first instance by the trier of fact
and the trial court’s findings must be upheld if supported by substantial evidence.].)
Defendant approached the officers and inquired about her friend’s situation. She
demonstrated an understanding of her rights by specifically indicating that while she was
on probation, she was not subject to a search condition. Nothing in the record suggests
that her responses to the officer’s questions about her drug use or his request that she roll
up her sleeves was anything other than voluntary.
       Defendant was adequately represented by counsel throughout the proceedings.
There was no sentencing error. There are no issues that require further briefing.
                                         Disposition
       The judgment is affirmed.




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                                _________________________
                                Pollak, Acting P. J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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