Filed 12/9/14 P. v. Pimentel CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C075824
Plaintiff and Respondent, (Super. Ct. No. SF124905B)
v.
ISAEL VILLA PIMENTEL,
Defendant and Appellant.
After receiving an anonymous tip regarding possible criminal activity, dispatch
notified Lodi Police Officer Brannon Haro, who stopped defendant Isael Villa Pimentel,
asked him his name, and searched him for weapons. Defendant gave Officer Haro a false
name. A different officer, who knew defendant, approached and told Officer Haro
defendant’s real name. Defendant was arrested and taken to jail for giving a false name
to a police officer. At the jail, police found an unloaded revolver in defendant’s front
pocket. Defendant was charged with three counts of possession of a concealed firearm
based on different theories.
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At a preliminary examination, defendant moved to suppress several pieces of
evidence, including the gun and his statements to police, asserting among other things
that the original detention was unlawful. The trial court denied his motion and defendant
pled no contest to one count of possessing a concealed firearm by a gang member; the
remaining counts and allegations were dismissed.
In accordance with the plea agreement, the court sentenced defendant to 365 days
in jail and 5 years on probation. The trial court ordered defendant to register as a gang
member in compliance with the plea agreement. Registering as a gang member,
however, was never actually part of the plea agreement.
On appeal from the judgment, defendant challenges the trial court’s ruling denying
his motion to suppress on grounds that Officer Haro did not have reasonable suspicion to
detain him. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On July 31, 2013, several Lodi police officers, including Officer Brannon Haro,
received calls from dispatch at approximately 8:00 p.m. Although three officers testified
differently to what dispatch said, Officer Haro believed dispatch told him there were five
to six “gang-type” Hispanic males at Leroy Nichols School, one wearing gray clothing,
and any number of them “possibly having guns.” Dispatch had received this information
from an anonymous source. At least six officers responded to the call and drove toward
Leroy Nichols School. As Officer Haro approached the school, he saw three males
walking away from the school -- two were on one side of the street, and one (defendant),
was crossing the street approximately 15 feet away from the others.
Officer Haro watched the police officer ahead of him pull his patrol car over and
walk toward the first two males. Officer Haro saw that defendant was wearing a charcoal
gray shirt, so he parked his patrol car and approached defendant, who had now crossed to
the other side of the street. Officer Haro asked defendant his name and defendant said his
name was “Jose Torres.” Thereafter, Officer Haro frisked defendant to see if defendant
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was in possession of any weapons; he did not find defendant’s gun at that time. Upon
noticing defendant’s blue belt and bandana, Officer Haro asked defendant if he was a
Sureño gang member and defendant said “yes.”
Approximately one to two minutes after contacting defendant, Officer Haro
learned that a man walking on a different street near the school named Ricardo Gonzalez
had been stopped and questioned by police. Shortly thereafter, Officer Haro received
news that other officers had discovered a gun hidden in the bushes on the street where
Gonzalez was detained. At that time another police officer approached Officer Haro,
recognized defendant, and told Officer Haro that defendant’s name was Isael Pimentel.
Confronted with this information, defendant admitted that his real name is Isael Pimentel.
Officer Haro then arrested defendant for giving a false name to a police officer.
Officer Haro transported defendant to jail, where he was searched again. Police
discovered an unloaded silver revolver deep in defendant’s front pocket. Defendant was
charged with three counts of unlawful possession of a concealed firearm based on three
different theories and one count of criminal street gang activity. The information alleged
defendant possessed the gun for the benefit of a criminal street gang. Defendant pled not
guilty to all counts and denied the allegation.
At a preliminary examination, defendant moved to suppress the: 1) blue bandana;
2) blue belt; 3) unloaded Smith and Wesson revolver; 4) all observations made by police
after the initiation of the unlawful detention; 5) all statements made by defendant or
Gonzalez after the unlawful detention; 6) the results of any tests run on the revolver; and
7) all other evidence obtained after the unlawful detention. He argued, among other
things, that the detention was unlawful because police did not have reasonable suspicion
of criminal activity. His motion to suppress was denied.
DISCUSSION
On appeal, defendant challenges the denial of his motion to suppress, arguing that
Officer Haro did not have reasonable suspicion to detain him. Defendant also argues he
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was not required to register as a gang member pursuant to the plea agreement or the
applicable statute and the court abused its discretion when it ordered him to do so.
Because we conclude that defendant’s detention was unlawful, we need not address
defendant’s second argument.
On review of a motion to suppress, we defer to the lower court’s factual findings,
whether express or implied, if they are supported by substantial evidence. (People v.
Leyba (1981) 29 Cal.3d 591, 596-597.) Whether, on the facts found, the search was
unreasonable under the Constitution is a question of law and is reviewed de novo. (Id. at
p. 597.)
The decisive facts in this case are what Officer Haro believed dispatch said and
what actions he took thereafter to detain defendant. (See People v. Leyba, supra, 29
Cal.3d at p. 596 [“the trial court must ‘find the facts’ relating to the challenged search or
seizure: e.g., it must decide what the officer actually perceived, or knew, or believed, and
what action he took in response”].) Therefore, on appeal we must exercise our
independent judgment to determine as a matter of law whether, based on Officer Haro’s
beliefs and perceptions, his detention of defendant was unreasonable under the Fourth
Amendment.
A police officer may justifiably stop and frisk a subject if the officer has sufficient
knowledge to create a reasonable suspicion that “criminal activity may be afoot and that
the persons with whom he is dealing may be armed and presently dangerous.” (Terry v.
Ohio (1968) 392 U.S. 1, 30 [20 L.Ed.2d 889, 911].) For an anonymous tip to provide
reasonable suspicion for an investigatory stop, it must be sufficiently corroborated to
exhibit indicia of reliability. (Florida v. J. L. (2000) 529 U.S. 266, 270 [146 L.Ed.2d
254, 264] (J. L.).) To provide reasonable suspicion, the criminal element of the tip must
typically be corroborated, not merely the noncriminal elements of the tip (such as the
clothing and location of the alleged suspect). (Ibid.) This is not the case, however, when
the informant accurately predicts the behavior of the suspect and police witness the
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suspect carrying out several of the predicted acts. (Alabama v. White (1990) 496 U.S.
325 [110 L.Ed.2d 301] (White) [finding sufficient indicia of reliability to provide
reasonable suspicion for investigatory stop when anonymous telephone tip accurately
predicted the defendant would leave a particular apartment at a particular time in a
particular vehicle and drive to a particular motel].)
Courts require “something more” than just an anonymous tip -- such as
corroboration of the criminal element of the tip or confirmation of predictive information
-- because “[u]nlike a tip from a known informant whose reputation can be assessed and
who can be held responsible if her allegations turn out to be fabricated, [citation], ‘an
anonymous tip alone seldom demonstrates the informant’s basis of knowledge or
veracity.’ ” (J. L., supra, 529 U.S. at p. 270 [146 L.Ed.2d at p. 260]; White, supra, 496
U.S. at p. 329 [110 L.Ed.2d at p. 308].)
Our case is very similar to J. L. In J. L., an anonymous caller reported to police
that a young black male standing at a particular bus stop and wearing a plaid shirt was
carrying a gun. (J. L., supra, 529 U.S. at p. 268 [146 L.Ed.2d at pp. 258-259].) Nothing
was known about the informant, and police did not know why the informant believed the
man was carrying a gun. (Ibid.) When police arrived at the bus stop, they saw three
black males; one, J. L., was wearing a plaid shirt. (Ibid.) Apart from the tip, the officers
had no reason to suspect any of the three of illegal conduct. (Ibid.) The officers did not
see the gun and J. L. did not engage in any threatening or suspicious activity. (Ibid.)
Nevertheless, the officers approached J. L., told him to place his hands up on the bus
stop, frisked him, and found a gun in his pocket. (Ibid.)
The Supreme Court held the detention of J. L. was unlawful because despite the
accurate description of the location and appearance of J. L., the anonymous tip “lacked
the moderate indicia of reliability” necessary for reasonable suspicion. (J. L., supra, 529
U.S. at pp. 269, 271 [146 L.Ed.2d at pp. 259-260].) In reaching this conclusion, the court
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focused on two ways the tip was lacking. First, because the informant did not provide
any predictive information like the informant did in White, the police were left with no
means to test the informant’s knowledge or credibility. (J. L., supra, 529 U.S at p. 271
[146 L.Ed.2d at p. 260].) Second, there was no corroboration to suggest that the tip was
reliable in its assertion of illegality. (Id. at p. 272 [146 L.Ed.2d at p. 261].)
“All 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.” (J. L., supra, 529 U.S at
p. 271 [146 L.Ed.2d at pp. 260-261].) The officers’ suspicion “arose not from any
observations of their own but solely from a call made from an unknown location by an
unknown caller.” (Id. at p. 270 [146 L.Ed.2d at p. 260].) “That the allegation about the
gun turned out to be correct d[id] not suggest that the officers, prior to the frisks, had a
reasonable basis for suspecting J. L. of engaging in unlawful conduct: The
reasonableness of official suspicion must be measured by what the officers knew before
they conducted their search.” (Id. at 271 [146 L.Ed.2d at p. 260].)
Like the police in J. L., here Officer Haro knew nothing about the anonymous
informant or why the informant believed defendant and/or his companions were
“possibly” carrying guns. Like the anonymous informant in J. L., the anonymous
informant here did not state a basis of knowledge or veracity and could not be evaluated
or held accountable if the tip was false. These concerns are exactly why the Supreme
Court requires anonymous tips to be “ ‘suitably corroborated’ ” to exhibit “ ‘sufficient
indicia of reliability to provide reasonable suspicion to make an investigatory stop.’ ”
(J. L., supra, 529 U.S at p. 270 [146 L.Ed.2d at p. 260].)
Furthermore, unlike the anonymous informant in White, the anonymous informant
here did not make any predictions regarding defendant’s behavior. (White, supra, 496
U.S. at pp. 326-327 [110 L.Ed.2d at pp. 306-307].) Like the police in J. L., Officer Haro
was left with no means to test the informant’s knowledge or credibility. Without this
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predictive information, Officer Haro needed independent corroboration of illegal conduct
before he could stop and frisk defendant. (See People v. Saldana (2002) 101 Cal.App.4th
170, 175 [finding corroboration of the criminal element is required when an anonymous
tip does not include predictive information because there is no internal indicia of the basis
for or reliability of the informant’s information).]
Other than this anonymous tip, there was no reason for the police to suspect
defendant of any illegal conduct. Just like in J. L., police could not see defendant’s gun,
and he was not engaging in any suspicious activity -- he was crossing the street away
from a school. It is not enough that defendant’s location and appearance corroborated the
anonymous informant’s tip because though the location and appearance “help[s] the
police correctly identify the person whom the tipster means to accuse. . . . [It] does not
show that the tipster has knowledge of concealed criminal activity.” (J. L., supra, 529
U.S at p. 272 [146 L.Ed.2d at p. 261].) The reasonable suspicion necessary for a stop and
frisk “requires that a tip be reliable in its assertion of illegality, not just in its tendency to
identify a determinate person.” (Ibid.)
Moreover, Officer Haro’s recollection of the anonymous informant’s information
further weakens the People’s argument of reasonable suspicion. Officer Haro testified
that he believed the informant said that the men “possibly” had guns. This is even
weaker than in J. L., where the informant said that the man at the bus stop did in fact
possess a gun. (J. L., supra, 529 U.S. at p. 268 [146 L.Ed.2d at p. 259].) Furthermore,
Officer Haro did not know if the anonymous informant specified which male was
carrying a gun. In J. L., the informant said that the black man wearing plaid possessed
the gun. (J. L., supra, 529 U.S. at p. 268 [146 L.Ed.2d at p. 259].) If this accurate
description of one man having a gun was not enough for reasonable suspicion in J. L., an
anonymous informant’s description of several different men “possibly” having guns is
certainly not enough for reasonable suspicion without any corroboration of criminal
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activity. Wearing gray near other males and crossing a street away from a school is not
corroboration of criminal activity.
The anonymous informant’s tip was not suitably corroborated to exhibit sufficient
indicia of reliability to provide reasonable suspicion to make an investigatory stop. The
detention was therefore unlawful and the motion to suppress should have been granted.
Because defendant’s motion to suppress was erroneously denied, the judgment must be
reversed and defendant must be given the opportunity to withdraw his no contest plea.
(People v. Ruggles (1985) 39 Cal.3d 1, 13.)
DISPOSITION
The judgment is reversed and the case is remanded to the trial court with
instructions to allow defendant to withdraw his no contest plea, to vacate its order
denying the motion to suppress, to enter a new order granting the motion to suppress, and
for further proceedings in accordance with the law.
ROBIE , Acting P. J.
We concur:
BUTZ , J.
MAURO , J.
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