In re Robert O. CA5

FACTS

I

PROSECUTION EVIDENCE

On July 6, 2013, members of the Gang Violence Suppression Unit served a search warrant at Roberto Garcia’s home in Merced. As they approached, Officer Alvarez noticed three subjects — Mario Jimenez, David V., and Robert — standing in front of the residence. All three immediately ran toward the house. Officers ordered Jimenez and David to the ground and detained them. At the same time, Alvarez saw Robert in the open, detached garage. Robert was standing next to a weight bench, looking startled, with his hands up. He was wearing a red cloth belt. As a gang officer, Alvarez knew

All statutory references are to the Penal Code unless otherwise stated.

2. Norteños often wore red, and specifically that type of belt. He noted Robert also had a Norteño-related tattoo.2 A loaded .40-caliber Glock handgun was found on the floor next to the weight bench, within a foot of where Robert had been standing.3 Robert denied tossing the firearm onto the ground. When Alvarez asked if his DNA or fingerprints would be on the firearm, however, Robert kind of laughed, smiled, and looked away from Alvarez. A black pistol shotgun was also found in the garage in a…