P. v. Kimmons CA1/1

Filed 5/31/13 P.v. Kimmons CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Appellant, A136010 v. NICHOLAS ANDRE KIMMONS, (San Francisco City & County Super. Ct. No. 217708) Defendant and Respondent.

The People appeal from the dismissal of resisting arrest charges arising from a fracas that occurred when San Francisco police officers attempted to arrest and handcuff defendant Nicholas Andre Kimmons. Due to insufficient evidence the police had probable cause to arrest defendant, the trial court ordered the suppression of all evidence stemming from the arrest, including the testimony of witnesses to the ensuing altercation. The court then dismissed the resisting arrest charges for lack of evidence. The People contend the court erred in suppressing witness testimony concerning defendant‘s conduct upon his arrest, and in dismissing the charges. We agree, and will reverse the dismissal order. I. BACKGROUND Defendant was charged by information with assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1); count I), resisting a peace officer causing serious bodily injury (§ 148.10, subd. (a); count II), three counts of resisting an executive officer with threats

1 All statutory references are to the Penal Code.

and violence (§ 69; counts III–V), and six counts of misdemeanor obstructing a police officer (§ 148, subd. (a)(1); counts VI–XI). The information alleged defendant inflicted great bodily injury during the commission of count III. (§ 12022.7, subd. (a).) The information further alleged defendant had suffered a prior felony conviction pursuant to sections 667, subdivisions (a)(1), (d), and (e), and 1170.12, subdivisions (b) and (c). Defendant filed a section 995 motion to set aside counts I–V and IX–X, and a motion to suppress under section 1538.5. The section 1538.5 motion sought suppression of (1) all statements defendant made during and following his assertedly unlawful arrest; (2) any items seized from defendant, including a pocketknife; and (3) any other evidence, whether tangible or intangible, that arose from the warrantless arrest and search and seizure of defendant. The trial court granted defendant‘s section 995 motion as to counts I and X. Following an evidentiary hearing, the court granted defendant‘s motion to suppress evidence and dismissed the remaining charges on May 21, 2012. The People timely appealed from the trial court‘s May 21, 2012 order. A. Facts2 San Francisco Police Officer Christina Johnson was the only witness at the suppression hearing. She was on duty with her partner, Officer Nathan Bernard, at the Ingleside station when a call came in regarding an aggravated assault on BART. The suspect was described in the radio dispatch as a Black male wearing black clothing and a black beanie. The officers were further informed another person was following the suspect and providing dispatch with updated information on the suspect‘s location. As the officers responded to the BART station, Johnson noticed defendant, who matched the suspect‘s description, walking across the street. Another man, who turned out to be the alleged assault victim, was walking behind defendant and talking on his phone. The officers stopped their marked patrol car and approached defendant. Bernard said, ―Let me talk to you about something that happened on BART.‖ Because defendant