People v. Pimentel CA3

Filed 12/9/14 P. v. Pimentel CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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