Filed 3/29/22 In re T.G. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

The Juvenile Court of Sacramento County denied a motion to suppress brought by appellant T.G., then 17 years old, found that he had committed multiple firearm offenses and transferred his case to Solano County Superior Court. There, the juvenile court granted him deferred entry of judgment. T.G. appeals from the denial of his suppression motion.

His appellate counsel has requested that this court independently review the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). (See In re Kevin S. (2003) 113 Cal.App.4th 97, 99 [Wende procedure applies to juvenile appeals].) T.G.’s counsel informed him of his right to file a brief of his own and he did not file one.

Upon our independent review of the record, we conclude that we must dismiss this appeal because, contrary to his appellate counsel’s assertion, T.G. has not appealed from an appealable order.

BACKGROUND

In August 2021, the Sacramento County District Attorney filed a wardship petition under Welfare and Institutions Code, section 602, subdivision (a) in Sacramento County Superior Court charging T.G. with carrying a concealed firearm (Pen. Code, § 25400, subd. (a)(3)) that was loaded and unregistered (id., § 25400, subd. (c)(6)); carrying a loaded firearm (id., § 25850, subd. (a)) not registered to him (id., § 25850 subd. (c)(6)); and possession of a firearm (id., § 29610).

T.G. subsequently moved under Welfare and Institutions Code section 700.1 to suppress evidence obtained as a result of his warrantless detention and search in the course of a traffic stop by Sacramento police officers on August 5, 2021. Two police officers testified at the hearing on his motion.

Sacramento Police Officer Mark Thrall testified that on August 5, 2021, at around 7:30 p.m., he was on car patrol with two other officers, all of them part of a gang enforcement team. He saw a driver of a car going in the other direction who was wearing a “full-faced balaclava,” a kind of face covering with holes for the eyes only. Thrall knew from his training and experience that criminals and gang members will often want to hide their identity. He conducted a U-turn and followed the car, which then made an abrupt turn onto another street without stopping completely at a stop sign or stopping at the sign’s limit line, in violation of Vehicle Code section 22450. Thrall initiated a traffic stop because of these violations. He contacted the driver of the car, who said he did not have a driver’s license and that he was out on probation for robbery. Thrall removed the driver from the car, searched him for weapons and found none.

Sacramento Police Officer Conner Mills testified that he was on patrol with Officer Thrall and another officer at the time of the incident in an area where there was a lot of gang violence. He also noticed that the driver was wearing a full face covering, and he participated in the traffic stop. Mills saw that the front passenger of the car was wearing “a cross-body style satchel.” He understood from his training and experience that it was of the type “commonly used to conceal contraband such as firearms” because they were big and easy to access. His team had seized 48 guns in the past year from those types of satchels.

Mills further testified that he contacted T.G., who was seated in the rear passenger seat of the car. He did not know T.G. He thought that T.G. was a little nervous because T.G. appeared to be breathing quickly, was a little fidgety and sometimes touched his face. T.G. was wearing a loose-fitting sweatshirt, although it was “warmer,” being a summer evening. Mills also saw a clear bag that appeared to contain marijuana. Upon questioning, T.G. acknowledged it was a bag of marijuana. Mills asked to see it and T.G. handed it to him. Mills looked at it and concluded it was marijuana. After Thrall removed the driver from the car, Mills removed T.G. As he did so, he observed two “punch tools on the back seat where [T.G.] was seated.” Mills knew from his training and experience that punch tools were commonly used in the private manufacture of firearms.

Mills further testified that he pat-searched T.G. after he exited the car because in the past year he had encountered shootings and people with firearms in the general area, thought the car may have turned the corner upon being followed by the police to avoid detection, knew the driver had stated he was on probation for robbery, a violent crime, and that people out on probation “often” hand off contraband to avoid police detection, had noticed the punch tools and observed that T.G. was wearing a sweatshirt. Mills found a nine-millimeter firearm in T.G.’s waistband. The weapon was loaded and had no serial number.

The trial court denied T.G.’s suppression motion. T.G. admitted to the charges and requested a transfer of his case to Solano County, where he resided. The court accepted T.G.’s admissions, determined that his maximum exposure was two years, and ordered that the matter be transferred to Solano County’s juvenile court.

The Juvenile Court of Solano County accepted the transfer of T.G.’s case and ordered that he be screened for deferred entry of judgment. The next month, it granted T.G. deferred entry of judgment and placed him under the supervision of the probation department, subject to various terms and conditions.

T.G., through counsel, filed a timely notice of appeal that states it is from the denial of his suppression motion.

DISCUSSION

T.G. purports to appeal from the juvenile court’s denial of his suppression motion. This is not an appealable order. The right of appeal is wholly statutory, and a judgment or order is not appealable unless expressly made so by statute. (In re T.C. (2012) 210 Cal.App.4th 1430, 1433.) Appeals in proceedings under Welfare and Institutions Code section 602 are governed by Welfare and Institutions Code section 800. (Ibid.) Section 800, subdivision (a) indicates that a juvenile court order denying a motion to suppress is reviewable on appeal upon entry of judgment: “A judgment in a proceeding under Section 601 or 602 may be appealed from, by the minor, in the same manner as any final judgment, and any subsequent order may be appealed from, by the minor, as from an order after judgment. . . . [¶] A ruling on a motion to suppress pursuant to Section 700.1 shall be reviewed on appeal even if the judgment is predicated upon an admission of the allegations of the petition.” (Welf. & Inst. Code., § 800, subd. (a).)

In his Wende brief, T.G.’s appellate counsel argues that T.G. may proceed with his appeal under Welfare and Institutions Code section 800, subdivision (a), presumably because he interprets an order deferring entry of judgment as included within the statute’s parameters. He is incorrect. Even if we were to broadly construe his appeal as from the court’s order granting T.G. deferred entry of judgment, that order, too, is not an appealable order. Indeed, as T.G.’s counsel acknowledges in a footnote, case law has held that orders granting deferred entry of judgment are not appealable. “[T]here is no provision in the law for appealing from a [deferred entry of judgment] order . . . .” (In re T.C., supra, 210 Cal.App.4th at p. 1433; see In re Mario C. (2004) 124 Cal.App.4th 1303, 1307-1308 [same]; see also Luis M. v. Superior Court (2014) 59 Cal.4th 300, 303, fn. 3 [juvenile court restitution order issued upon the deferral of entry of judgment not an appealable order].) T.G.’s counsel has not cited, and we are not aware of, any case law that has held otherwise.

In re Mario C. involved circumstances very similar to those in the present case. There, the minor appealed from an order deferring entry of judgment, contending that the juvenile court had erred by denying his motion to suppress evidence. (In re Mario C., supra, 124 Cal.App.4th at p. 1306.)

The appellate court explained, “The order before us is not a judgment in either the general or the specific sense. As its very name indicates, the order does not enter judgment but ‘defer[s]’ such entry indefinitely, perhaps permanently.” (In re Mario C., supra, 124 Cal.App.4th at p. 1308.) Thus, “far from constituting an adjudication of the issues raised by the petition, the order of deferral abates the adjudicatory process in the hope that the minor will comply with the probationary conditions and thereby avoid a judgment altogether. . . . If the minor fails to satisfactorily comply, the court will enter judgment and make a dispositional order. In the latter instance, of course, a ‘judgment’ will exist from which an appeal will lie. At the present juncture, however, there simply is no judgment from which to appeal.” (Ibid.)

The In re Mario C. court noted that the minor was not precluded necessarily from bringing a petition for extraordinary relief on the ground that the order rested on an erroneous denial of a motion to suppress and that the conditions for extraordinary review were otherwise present. (In re Mario C., supra, 124 Cal.App.4th at p. 1311.) The court further observed, “An extraordinary writ will issue only when we ‘find that it is . . . “necessary to protect a substantial right and [then] only when it is shown that some substantial damage will be suffered by petitioner if said writ is denied.” ’ ” (Id. at p. 1312.) The court, however, did not consider this issue further because the minor did not request that the court treat his appeal as a petition for extraordinary relief or show that the conditions for such relief were present. (Id. at p. 1311.) We shall not consider whether to construe T.G.’s appeal as a writ for extraordinary relief for the same reasons.

In short, because there is no appealable order on which to base this appeal, we must dismiss it for lack of jurisdiction. (In re T.C., supra, 210 Cal.App.4th at p. 1432; In re Mario C., supra, 124 Cal.App.4th at p. 1306.)

DISPOSITION

The appeal is dismissed.

STEWART, Acting P.J.

We concur.

MILLER, J.

MAYFIELD, J.*

In re T.G. (A163795)

* Judge of the Mendocino County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.