People v. Rosales CA6

Filed 9/13/22 P. v. Rosales CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H047768 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1807253)

v.

FRANCISCO ROSALES,

Defendant and Appellant.

THE COURT 1 Francisco Rosales appeals from a judgment entered after he pleaded no contest to carrying a concealed firearm in a vehicle (Pen. Code, § 25400, subd. (a)(1));2 carrying a concealed firearm in a vehicle when not in lawful possession of the firearm (§ 25400, subd. (a)(1)); carrying a loaded firearm when not the registered owner (§ 25850, subd. (a)); and carrying a loaded firearm with a specified prior conviction (§ 25850; subd. (a)). Rosales contends the trial court erred in denying his motion, made under section 1538.5, to suppress evidence seized during the search of his vehicle. We affirm the order denying suppression.

1 Before Greenwood, P.J., Grover, J. and Lie, J. 2 Further undesignated statutory references are to the Penal Code.

I. FACTUAL AND PROCEDURAL BACKGROUND On the afternoon of October 13, 2018, San Jose police officer Christopher Weber and his partner were on duty in a residential area that Weber knew to be controlled by Varrio True Norteño criminal street gang.3 Weber initiated an enforcement stop on a car driven by Rosales after observing him drive through a four-way intersection without stopping. Weber and his partner exited their patrol car and contacted Rosales, who was the sole occupant of the vehicle. Weber observed both gang paraphernalia and tattoos on Rosales consistent with the symbols and designs commonly used by members of the Varrio True Norteño gang. He also noticed a strong odor of marijuana as soon as he approached the vehicle. As Weber spoke to Rosales, he saw that there were multiple jars in the car, and he noticed that there was an odor of marijuana “spread throughout the vehicle.” Two of the jars were in the pocket of the driver’s door. One of those jars was open and there was amber colored material within it. In the cup holder there was paper that had the same amber color, and he also observed amber waxy material “all over” the cup holder. Based on his training and experience, Weber concluded that this was a useable amount of concentrated cannabis, which is commonly referred to as “wax.” On the passenger’s seat was a propane canister with a nozzle, which Weber knew is used to ingest concentrated cannabis. Weber conducted a search of the vehicle. He opened the center console and found a black semiautomatic pistol, as well as additional jars containing wax. He also found additional apparel associated with the Norteños in the car. Weber testified that Norteño activities included the trafficking of narcotics as well as the possession and trafficking of firearms.