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Filed 4/20/15 P. v. Sanchez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

v.

FREDDY SANCHEZ,

Defendant and Respondent.

 A140979

 (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)1and 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 what 

 

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 All further undesignated statutory references are to the Penal Code.
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she 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,

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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, 

 

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The officer’s name is spelled “Van Koll” in the transcript of the 911 call. 

3 Officer Smith testified he was responding to a dispatch about a suspect with a 

gun at the end of the municipal pier, dressed in all black. The man at the end of the pier 

in black, however, was Summerhill, not the suspect. 
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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. 
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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-
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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 threatened to shoot the caller, who provided a description of the 

defendant and the car he was driving, and location of the incident. The caller also stated 

he did not want to remain at the scene or to provide his identity. (Dolly, supra,40 Cal.4th

at pp. 462, 465–466.) 

“First,” stated the court, the “defendant’s conduct in pointing a revolver at the 

caller in an apparent threat to shoot him posed a grave and immediate risk not only to the 

caller but also to anyone nearby. (U.S. v. Holloway (11th Cir. 2002) 290 F.3d 1331, 1339 

(Holloway) [anonymous 911 call reporting gunshots and arguing ‘involved a serious 

threat to human life’].) ‘[A]llegations of the threatening use of a weapon, made by 
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person claiming to be an eyewitness to the threats, required immediate police action’ and 

‘is materially distinguishable from the anonymous tip at issue in Florida v. J.L.,’ which 

involved only an allegation of a concealed weapon. (Ray v. Village of Woodridge

(N.D.Ill.2002) 221 F.Supp.2d 906, 914 . . . .)” (Dolly, supra, 40 Cal.4th at p. 465.)

“Second, there is no reason to think that anonymous phoned-in tips concerning 

contemporaneous threats with a firearm are any more likely to be hoaxes than are 

anonymous phoned-in tips concerning a contemporaneous event of reckless driving.

(Compare [United States v.] Terry–Crespo[ (9th Cir. 2004)] 356 F.3d [1170,] 1177 with 

Wells, supra, 38 Cal.4th at p. 1087 . . . .) Indeed, the call here bore stronger indicia of 

reliability than did the call in Wells. Unlike Wells, where the record was ‘silent’ as to the 

circumstances leading to the call or the call itself (id. at p. 1081), this case involves a 911 

call that was taped. ‘911 calls are the predominant means of communicating emergency 

situations’ and ‘are distinctive in that they concern contemporaneous emergency events, 

not general criminal behavior. . . . If law enforcement could not rely on information 

conveyed by anonymous 911 callers, their ability to respond effectively to emergency 

situations would be significantly curtailed.’ (Holloway, supra, 290 F.3d at p. 1339; see 

Terry–Crespo, supra, 356 F.3d at p. 1176 [911 calls are “entitled to greater reliability 

than a tip concerning general criminality because the police must take 911 emergency 

calls seriously and respond with dispatch”] . . . .)” (Dolly, supra, 40 Cal.4th at p. 467.) 

“Third, the tipster-victim provided a firsthand, contemporaneous description of the 

crime as well as an accurate and complete description of the perpetrator and his location, 

the details of which were confirmed within minutes by the police when they arrived.” 

(Dolly, supra, 40 Cal.4th at p. 468.)

The United States Supreme Court has also recently emphasized the significance of 

911 calls, even if anonymous. In Navarette v. California (2014) __ U.S. __ [134 S.Ct. 

1683] (Navarette), an anonymous 911 caller reported being run off the road by another 

driver and described the vehicle and license plate. (Id. at pp. 1686–1687.) The CHP 

located the driver and discovered 30 pounds of marijuana. (Id. at p. 1687.) The 

defendant unsuccessfully attempted to suppress the evidence for lack of reasonable 
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suspicion. (Ibid.) The United States Supreme Court concluded the reported information 

was sufficiently reliable for an investigative detention. (Ibid.)

The caller identified the make, color and model of the vehicle and the license 

plate—information, corroborating the caller was an eyewitness and suggesting 

trustworthiness. (Navarette, supra, __ U.S. __ at p. __ [134 S.Ct. at p. 1689].) The 

timing of the call also indicated the caller was reporting a contemporaneous 

observation—an additional indicator of reliability. In contrast, there had been “no 

indication that the tip in J. L. . . . was contemporaneous with the observation of criminal 

activity or made under the stress of excitement caused by a startling event, but those 

considerations weigh in favor of the caller’s veracity here.” (Ibid.) Finally, the caller 

used the 911 emergency system, which “has some features that allow for identifying and

tracing callers, and thus provide some safeguards against making false reports with 

immunity.” (Ibid.) “The caller’s use of the 911 system is therefore one of the relevant 

circumstances that, taken together, justified the officer’s reliance on the information 

reported in the 911 call.” (Id. at p. 1690) 

With this overview, we turn to the 911 calls at issue here. We note neither the 

magistrate granting the initial motion to suppress, nor the trial court granting the section 

995 motion to dismiss, had the benefit of the United State’s Supreme Court’s recent 

decision in Navarette. 

911 Call by Ms. Zielke

To begin with, as we observed above, Ms. Zielke’s 911 call was not an 

anonymous call. She not only provided her name, but she also provided contact 

information so law enforcement could contact her later, which they did. This is reason 

enough to conclude her 911 call was sufficiently reliable to support the detention. In 

addition, it was apparent she was reporting a contemporaneous sighting. Moreover, this 

event was occurring at a public park, where there was a heightened degree of risk to the 

general public. Zielke also provided an adequate description for officers to locate the 

person about whom she was concerned. 
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The fact Zielke did not remain on the scene does not detract from all the other 

indicia of reliability of her 911 call. Indeed, it is not surprising she chose not to remain in 

the vicinity of someone who might be armed with a concealed weapon. That Zielke also 

could not tell whether defendant was carrying a real or replica weapon is also beside the 

point. The purpose of a detention is to investigate a reasonable suspicion of possible 

criminal activity. If it turns out there is no basis for concern, the brief investigatory 

detention has served its purpose and ends. On the other hand, if the investigation 

confirms there is probable cause to make an arrest, the detention has served its additional 

purpose of protecting the public’s safety. 

In short, even if Zielke’s 911 call had been the only call that was made, it would 

have provided sufficient basis for the officers to make an investigatory detention to 

determine whether defendant was in fact carrying a concealed weapon. 

911 Call by Mr. Summerhill

Mr. Summerhill’s 911 call also was not an anonymous call, and all the indicia of 

reliability attendant to Ms. Zielke’s 911 call, also pertain to his 911 call. In addition, 

Summerhill remained within sight distance. Thus, Summerhill’s call, alone, also 

provided a basis for an investigatory detention. 

Defendant contends Summerhill’s description of defendant and the locale was 

different than Zielke’s, and thus the second 911 call undercut reasonable suspicion. 

Defendant, however, overstates the differences in the calls and disregards the similarities. 

Zielke’s 911 call around 12:00 p.m. described a Hispanic or Filipino man, wearing a 

white hat and gray hoodie, carrying what looked like a gun in Aquatic Park Summerhill 

made his call about 30 minutes later, describing two Latin male adults in Aquatic Park, 

one of whom had a gun and wore a hat and gray sweatshirt. Given the similar 

description, race, and purported criminal activity, the second 911 call does not undercut, 

and in fact, corroborates the first call.4 

 

4 Defendant has filed an application to file a letter brief in which he asserts the 

People “ ‘waived any reliance on Exhibit One as a basis for arguing that the officers had 

reasonable suspicion,’ ” by citing that evidence only in their reply brief and not their 
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Defendant does not dispute it is illegal to carry a loaded gun in public (§ 25850). 

Therefore, he essentially concedes the officers had a reasonable suspicion criminal 

activity was afoot, justifying the detention to investigate further. 

The Patdown Search

Although it is not entirely clear, it appears defendant also contends that even if the

detention based on the 911 calls was valid, as we have concluded it was, the subsequent 

patdown search was unjustified under Arizona v. Johnson (2009) 555 U.S. 323, 326

(Arizona). In Arizona, the United States Supreme Court, citing Terry v. Ohio (1968) 

392 U.S. 1, noted a “stop and frisk” is constitutionally permissible if (1) the investigatory 

stop is lawful and (2) the police officer reasonably suspects the person stopped is armed 

and dangerous. (Arizona, at pp. 326–327.) Both requirements are satisfied here. As we 

have discussed, the officers had ample basis for an investigative stop. And since the 

purpose of the detention was to determine whether defendant was in possession of a 

firearm in a public park, the officers also had ample basis to conduct a patdown search.

DISPOSITION

The order granting defendant’s section 995 motion is reversed, and the 

information is reinstated for further criminal proceedings. 

 

opening brief. We grant the request, but conclude his argument in the letter brief has no 

merit. He relies on the general rule “arguments made for the first time in a reply brief 

will not be entertained,” citing People v. Tully (2012) 54 Cal.4th 952, 1075 and People v. 

JTH Tax, Inc. (2013) 212 Cal.App.4th 1219, 1232. The People, however, did not raise a 

different argument in their reply brief: they simply bolstered their argument that the 

officers had reasonable suspicion by citing more evidence in the record, which the trial 

court admitted for the nonhearsay purpose of showing “what information was provided to 

the police at that time.”
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_________________________

Banke, J.

We concur:

_________________________

Humes, P. J.

_________________________

Margulies, J.