In re Ramon H.
Filed 2/18/09 In re Ramon H. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re RAMON H., a Person Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. RAMON H., Defendant and Appellant. | E046304 (Super.Ct.No. J220299) OPINION |
APPEAL from the Superior Court of San Bernardino County. Michael A. Knish, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.
Janet J. Gray, under appointment by the Court of Appeal, for defendant and Appellant.
No appearance for Plaintiff and Respondent.
Statement of the Case
On May 19, 2008, prior to the commencement of the contested jurisdictional hearing, the juvenile court granted the motion of the prosecutor to dismiss counts 1 and 2 of the original petition filed on March 17, 2008, by the District Attorney of San Bernardino County. Thereafter, the juvenile court sustained count 3, a violation of Penal Code section 12101, subdivision (a)(1).[1] As a result, the juvenile court determined that defendant, a 17-year-old minor, came within the meaning of Welfare and Institutions Code section 602. At that time, the juvenile court also reduced count 3 from a felony to a misdemeanor pursuant to Welfare & Institutions Code section 702.
On July 22, 2008, at the conclusion of the dispositional hearing, the minor was declared a ward of the juvenile court and placed in the custody and control of his parents and ordered to comply with the terms and conditions of his grant of probation.
A notice of appeal was filed on July 23, 2008.
Statement of Facts
San Bernardino County Sheriff Roland Schmiedel was on patrol on January 10, 2008, when he noticed a car that failed to stop at a limit line. The car had been traveling too fast, stopping inside the crosswalk. Officer Schmiedel suspected possible intoxication because of the drivers speed. The minor was not driving the car, but was traveling as a passenger in the front seat. During the car stop, the officer noted that there was a strong odor of marijuana being emitted, which prompted the officer to ask the driver to step out so that he could conduct a search. The driver appeared nervous, and wanted to know if he could leave immediately. The officer searched the driver at the rear of the car, while facing toward the car.
Officer Schmiedel noticed that the passenger, the minor, was moving around, making furtive[2]movements and bending at the waist. It seemed to the officer that the minor was reaching for something and it also appeared that the minor was reaching directly under the seat and the officer ordered the minor to stop moving around. After the driver was secured in the back seat of the patrol car, the officer approached the minor. When the officer asked him what he was doing, the minor said that he had been instructed by others to keep his hands up when approached by an officer and the officer noted that the minors response was not consistent with his earlier behavior. The officer believed that the minor was hiding something or possibly arming himself with a weapon and the officer was concerned for his personal safety.
The minor was asked to exit the vehicle and he was searched and placed inside the police vehicle. The officer then searched the car, locating a handgun under the passenger seat where the minor had been sitting. The .38 automatic pistol was loaded with five unspent rounds. The minor did not have any bullets, drugs or holster on his person.
Following Miranda[3]warnings, the minor denied that the gun was his when questioned. The minor reported that prior to the traffic stop, the driver passed him the firearm and told him to hide it. The minor explained to the officer that the movement occurred while he was hiding the weapon.
The minor testified in his defense. At the outset of the car stop, the driver informed the minor that he had a gun, told him to hide it, and then put it on his lap. The minor grabbed it with his shirt off and kicked it under the seat. The minor was trying to get the gun away from his person. He had the gun for five to ten seconds before it was away from his person. The minor did not want to have the gun on his person.
The minor appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record. The defendants Wende brief argues the reasonableness of the search of the vehicle, and maintains that the possession of the gun was either transitory or insufficient as constructive possession. (People v. Vibanco (2007) 151 Cal.App.4th 1; People v. Castellon (1999) 76 Cal.App.4th 1369; People v. Martin (2001) 25 Cal.4th 1180, 1191-1192; People v. Mower (2002) 28 Cal.4th 457, 478-481; People v. Taylor (1984) 151 Cal.App.3d 432.)
We offered the minor an opportunity to file a personal supplemental brief, which he has not done.
We have now concluded our independent review of the record and find no arguable issues.
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
McKINSTER
J.
MILLER
J.
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[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] The record appears to have misconstrued furtive as further.
