People v. Sanchez

• Decision Date: 20 April 2015
• Docket Number: A140979
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Appellant, v. FREDDY SANCHEZ, Defendant and Respondent.

THE PEOPLE, Plaintiff and Appellant, v. FREDDY SANCHEZ, Defendant and Respondent.

A140979

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

April 20, 2015

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Francisco City & County Super. Ct. No. SCN221060)

The People appeal from the trial court's grant of defendant's motion to set aside the information (Pen. Code, § 995)¹ and subsequent dismissal of the case charging defendant with unlawful possession and carrying of a firearm (§§ 25400, 25850, 29805). On appeal, the People contend a 911 call from an individual in a public park reporting a person carrying either a real or replica firearm in the waistband of his pants, and a second 911 call from another individual at the park reporting a person carrying a gun provided ample grounds to detain and investigate. We agree and reverse the dismissal order.

BACKGROUND

We set forth only those facts pertinent to the appeal. At about 12:00 p.m. on January 1, 2013, Vanessa Zielke, who was walking in Aquatic Park, saw a man carrying either a real or replica gun in the waistband of his pants. She believed it was a gun based on the shape and the black parts visible from outside his clothing. Zielke did not see the gun handle or bullets. Nor did she see the man brandish the weapon at anyone. After putting some distance between herself and the individual, she called 911, reported whatshe had seen, and described the person as "Hispanic or Filipino," wearing a white hat and a gray hoody. She provided both her name and telephone number to the 911 operator and then left the scene out of fear. Later that evening, she provided an oral statement to the police. San Francisco Police Sergeant Ron Liberta received the 911 dispatch from the Zielke call, but was unable to respond.

About 30 minutes later, around 12:36 p.m., Mike Summerhill saw a man loading and cocking a gun, and called 911. Sergeant Liberta also received this second 911 dispatch, which described "a Latin male with a white hat and gray . . . hoodie" carrying a gun in Aquatic Park.

Liberta and his partner, Officer John Van Cole,² located defendant and another man "exactly where the person that called 911 described the subjects to be," and defendant "matched the description" of the individual with a gun. The two subjects "were the only [ones] in the area. As they approached the men, the officers then drew their guns because they "were at a position of disadvantage." Van Cole identified himself as a police officer, asked the men to raise their hands in the air, and then asked them to raise their shirts to reveal any concealed weapons. When Van Cole observed a gun in defendant's waistband, Liberta broadcast the information and their location over the police radio. Defendant was wearing a white hat with a gray hoodie.

In the meantime, Park Police Officer Stephen Smith also responded to the dispatch of Summerhill's 911 call.³ He arrived shortly after Liberta and Van Cole and parked behind their vehicle. He drew his gun when he saw the other officers draw theirs. After defendant was told to get on the ground by Van Cole, Smith handcuffed him and removed the suspected weapon, which turned out to be real and loaded, as well.

The San Francisco District Attorney thereafter filed a three-count felony complaint alleging defendant had unlawfully carried a concealed weapon in a public place (§ 25400,subd. (a)(2)), carried a loaded firearm not registered to him in a public place (§ 25850, subd. (a)), and carried a firearm despite having a misdemeanor conviction within the last 10 years (§ 29805).

At the preliminary hearing, the magistrate granted defendant's motion to suppress on the ground the officers had not had reasonable suspicion to detain defendant, and subsequently dismissed the case.

The People filed a motion to reinstate the complaint, which the trial court granted, concluding the magistrate had erroneously granted the motion to suppress. Specifically, the court concluded the fact the case involved 911 calls from callers who identified themselves took the case out of the "anonymous tipster" category of cases.

After the filing of an information, defendant filed a motion to set it aside pursuant to section 995. Other than stating it was agreeing with the magistrate, and disagreeing with the trial court that had granted the motion to reinstate, as to the sufficiency of the 911 calls to support the detention, the trial court granted the section 995 motion without discussion and dismissed the case.

DISCUSSION

"In this appeal from grant of defendant's motion under section 995, this court 'must draw all presumptions in favor of the magistrate's factual determinations, and we must uphold the magistrate's express or implied findings if they are supported by substantial evidence. [Citations.]' [Citation.]" (People v. Magee (2011) 194 Cal.App.4th 178, 182-183. However, " '[w]e judge the legality of the search by "measur[ing] the facts, as found by the trier, against the constitutional standard of reasonableness." [Citation.] Thus, in determining whether the search or seizure was reasonable on the facts found by the magistrate, we exercise our independent judgment. [Citation.]' " (Id. at p. 183, quoting People v. McDonald (2006) 137 Cal.App.4th 521, 529.)

The 911 Calls Provided Sufficient Indicia of Reliability for an Investigatory Detention

In People v. Dolly (2007) 40 Cal.4th 458 (Dolly), the California Supreme Court discussed the sufficiency of anonymous 911 calls to support an investigative detention.In the instant case, neither 911 call was anonymous. Zielke provided both her name and telephone number to the 911 operator. Summerhill also identified himself and remained at the park. The Supreme Court's discussion nevertheless provides considerable guidance as to the sufficiency of the 911 calls to support an investigatory detention.

The court initially explained: " 'The guiding principle in determining the propriety of an investigatory detention is "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." [Citations.] In making our determination, we examine "the totality of the circumstances" in each case.' ([People v.] Wells[ (2006)] 38 Cal.4th [1078,] 1083; see also People v. Souza (1994) 9 Cal.4th 224, 227, 230 . . . .) 'Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause, including an anonymous tip.' (Wells, supra, 38 Cal.4th at p. 1083.)" (Dolly, supra, 40 Cal.4th at p. 463.)

"Indeed," stated the court, it had "recently justified a detention based on an anonymous tip in Wells. There, an anonymous caller reported a 1980's-model blue van traveling northbound on Highway 99 north of Bakersfield and weaving all over the roadway. Two or three minutes after receiving the dispatch report, a California Highway Patrol officer spotted a blue van traveling northbound on Highway 99, activated his patrol car lights, and stopped the van to investigate whether the driver was impaired. The officer had seen nothing to indicate the motorist was intoxicated but, after conducting an investigation at the scene, arrested the motorist for driving under the influence. (Wells, supra, 38 Cal.4th at pp. 1081, 1083.)" (Dolly, supra, 40 Cal.4th at p. 464.)

"In upholding the detention" in Wells, the court had "observed that 'a citizen's tip may itself create a reasonable suspicion sufficient to justify a temporary vehicle stop or detention, especially if the circumstances are deemed exigent by reason of possible reckless driving or similar threats to public safety' (Wells, supra, 38 Cal.4th at p. 1083) . . . ." (Dolly, supra, 40 Cal.4th at p. 464.) It thus "distinguished the United States Supreme Court's decision in Florida v. J.L. (2000) 529 U.S. 266 . . . (J.L.), which invalidated a detention based on an anonymous phoned-in tip that a young African-American man in a plaid shirt standing at a particular bus stop had a concealed weapon. 'The high court held the tip insufficient to justify a brief detention and patdown search, absent some independent corroboration of the reliability of the tip and the tipster's assertion of illegal conduct. [Citation.] As the court stated, "[a]ll the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L." ' (Wells, supra, 38 Cal.4th at p. 1084.)" (Dolly, at p. 464.)

Accordingly, "[a]fter balancing the public interest in safety and the individual's right to personal security free from arbitrary interference by law enforcement officers," the court "determined in Wells that the relative urgency presented by drunk or erratic drivers could justify an investigatory detention based on an anonymous tip despite the absence of corroborating evidence of illegal activity. A tip's reliability . . . need not depend exclusively on its ability to predict the suspect's future behavior (see, e.g., Alabama v. White (1990) 496 U.S. 325, 332 . . .) or the officer's ability to corroborate present illegal activity (see, e.g., People v. Butler (2003) 111 Cal.App.4th 150, 162 . . .). Rather, the tip's reliability depends upon an assessment of 'the totality of the circumstances in a given case.' (Wells, supra, 38 Cal.4th at p. 1088 . . . [additional citations omitted].) (Dolly, supra, 40 Cal.4th at p. 464.)

In light of all "these (and other factors)," the court in Dolly upheld an investigatory detention following an anonymous 911 call that the defendant had just "pulled a gun" and...