People v. Gamboa CA5

Filed 12/22/15 P. v. Gamboa CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F069190 Plaintiff and Respondent, (Super. Ct. No. BF149144A) v.

ANTONIO GAMBOA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush and Colette M. Humphrey, Judges.† Kendall D. Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Detjen, J. and Smith, J. † Judge Bush presided over appellant’s motion to suppress hearing. Judge Humphrey sentenced appellant.

INTRODUCTION Appellant Antonio Gamboa pled no contest to grand theft, a felony (Pen. Code, § 487, subd. (c)). The prosecution dismissed charges against him for second-degree robbery (Pen. Code, § 212.5, subd. (c), count 1), criminal threats (Pen. Code, § 422, count 2), and drawing or exhibiting a firearm (Pen. Code, § 417, subd. (a)(1)(B), count 3). Appellant received a jail term of 16 months. Appellant argues the trial court erroneously denied his Penal Code section 1538.5 motion to suppress because the protective sweep performed by law enforcement officers was not supported by reasonable suspicion. We agree and will reverse the order and remand for further proceedings. FACTUAL AND PROCEDURAL SUMMARY1 In May of 2013,2 Monique Guerra and her mother, Susan Alvary, went to appellant’s home at 5716 Walton Drive in Bakersfield, California, to retrieve personal property. An argument ensued between Guerra and appellant, during which appellant grabbed Guerra around the neck, pushed her against a pillar on the front patio, and forcibly removed a necklace from her neck. Appellant told Elizabeth Torres, his wife, to “get my strap,” or firearm. Torres returned with a sawed-off shotgun and pointed it at Guerra and Alvary. At approximately 6:30 p.m., Officers John Billdt, Ryan McWilliams, and Thomas3 from the Bakersfield Police Department responded to the residence based on a report that a woman in a purple shirt had brandished a firearm. McWilliams spoke to Guerra and