In re Orlando V.

Filed 1/12/07  In re Orlando V. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

            After defendant's motion to suppress the evidence was denied, the juvenile court sustained a supplemental petition alleging that he had possessed a firearm in violation of Penal Code section 12101, subdivision (a)(1).  He challenges the denial of the motion to suppress, as well as the sufficiency of the evidence in support of the court's ultimate finding.  We hold that the court erred in denying the motion to suppress.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

            On July 18, 2005, Officer Richard Sarro was dispatched to a report of shots fired.  He was able to obtain a description of the suspect and of a suspect vehicle.  The vehicle was described by a witness as a green, two-door Honda Civic.[1]  The shooter was described by a different witness as a young Hispanic male, possibly 13 years old.[2]

            Two days later, at approximately 9:00 p.m., Sarro was on patrol when he observed a green Honda Civic turning at an intersection.  He made a U-turn to get behind the vehicle and followed it.  He then initiated a stop.  There were three occupants inside.  When asked if he was able to observe defendant in the Honda when he pulled it over, Sarro responded that he could not because it was dark.  Defendant was seated in the front passenger seat.  Sarro shined his patrol car's spotlight on the vehicle, asked the occupants to remain inside, and approached the driver.

            An inquiry revealed that the driver was driving with a suspended license.  Sarro also ran a check on defendant and learned that he was on juvenile probation and was subject to warrantless searches.  He also learned that defendant was a Norteño gang member.  The driver was arrested for driving with a suspended license.

            Officer McCarthy arrived at the scene and observed that defendant, while still seated in the vehicle, was attempting to conceal something with his left foot.  After he was removed from the vehicle, McCarthy found a .32-caliber handgun along the center console underneath the carpet and the floor mat adjacent to where defendant had positioned his left foot.

            On July 21, 2005, a supplemental petition was filed pursuant to Welfare and Institutions Code section 602, alleging that defendant was a minor in possession of a firearm in violation of Penal Code section 12101, subdivision (a)(1).  He was also charged with a gang enhancement under Penal Code section 186.22, subdivision (b)(1).  This enhancement was subsequently dismissed.

            At the jurisdictional hearing, the juvenile court heard defendant's motion to suppress the evidence pursuant to Welfare and Institutions Code section 700.1.  The court denied the motion and sustained the petition, deeming the offense a felony.  The court did not state its reasons for the denial of the suppression motion on the record.[3]  Defendant was continued as a ward of the court and was placed on probation in the custody of his mother.  The maximum period of confinement was set at five years.  This appeal followed.

DISCUSSION

I. Denial of Motion to Suppress

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