Filed 3/20/15 P. v. Vasquez CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068957
                   Plaintiff and Respondent,
                                                                           (Kern Super. Ct. No. RF6591A)
                   v.
                                                                                          OPINION
TONY VAZQUEZ,

                   Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto, Judge.
         Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Amanda
D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


         *Before Cornell, Acting P.J., Gomes, J., and Smith, J.
                                      INTRODUCTION
       On January 29, 2014, a jury convicted appellant Tony Vazquez of a misdemeanor
count of false identification to a peace officer (Pen. Code, § 148.9, subd. (a),1 count 4).
The jury acquitted appellant of possession of metal knuckles (§ 21810, count 1) and
misdemeanor possession of a smoking device (Health & Saf. Code, § 11364.1, count 3).2
On February 27, 2014, appellant was placed on probation for three years.
       Appellant contends, and respondent concurs, that there was insufficient evidence
that appellant committed the offense of providing false identification to a peace officer.
We agree with the parties and reverse the judgment of the trial court.3
                                            FACTS
       Ridgecrest Police Officer Cory Ballestero arrived at a Taco Bell located on North
China Lake Boulevard on March 18, 2013. It was 5:00 p.m. Appellant was entering the
driver’s side of a white Honda with his left hand on top of the door and his right hand on
the steering wheel. Appellant was with a woman named Cassey Fuller. Antonio Lopez,
Brandy Martinez, and Joseph Vazquez were in a white Nissan parked one or two spaces
from appellant. Officer Bockhohn arrived at the parking lot in another patrol car.
       Officer Ballestero asked to speak to the people in both cars. Appellant closed the
door to his car and approached Ballestero with Fuller. The other three men also walked
over to Ballestero. Ballestero asked appellant for his identification. Appellant replied
that he did not have any. When Ballestero asked appellant for his name and birth date,

       1   All further statutory references are to the Penal Code unless otherwise stated.
       2 The trial court granted the prosecutor’s motion to dismiss allegations that
appellant was a felon in possession of a firearm (§ 29800, subd. (a)(1), count 2) and that
he was subject to an on-bail enhancement (§ 12022.1). Prior prison term enhancements
and allegations pursuant to the “Three Strikes” law were also dismissed.
       3 Appellant further challenges the trial court’s failure to specify his fines and fees
on the record. In light of our reversal of appellant’s conviction, we do reach this issue.


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appellant replied that he was David Salcedo and was born on April, 20, 1983. Appellant
denied being on probation or parole. The dispatcher told Ballestero that Salcedo was on
active parole. Appellant told Ballestero he was on Post Release Community Supervision.
Appellant did not know his CDC number, social security number, or the name of his
parole agent.
       Based on Salcedo being on parole, Officer Ballestero searched appellant’s Honda
and found metal knuckles and a methamphetamine pipe. Appellant and Fuller were
arrested. At the jail, appellant admitted he lied about his identity because he thought he
had an outstanding warrant. Officer Ryan Sloan testified that Fuller told him the metal
knuckles belonged to her.
                  FALSE IDENTIFICATION TO A PEACE OFFICER
       The parties agree that because appellant was not under arrest and had not yet been
detained, the encounter between appellant and Ballestero was entirely voluntary. The
parties further concur that the predicate element to a violation of section 148.9,
subdivision (a)4 is a lawful arrest or detention.
       Cases interpreting section 148.9, subdivision (a) find that the predicate element to
a violation of the statute is a lawful detention or arrest. In the case of In re Voeurn O.
(1995) 35 Cal.App.4th 793, 795 (Voeurn O.), a police officer encountered a minor lying
on the grass in the middle of an apartment complex to investigate a complaint of
suspicious juveniles loitering. The officer questioned the minor. The minor told the

       4   Subdivision (a) of section 148.9 provides:

              “Any person who falsely represents himself or herself as another
       person or as a fictitious person to any peace officer listed in Section 830.1
       or 830.2, or subdivision (a) of Section 830.33, upon a lawful detention or
       arrest of the person, either to evade the process of the court, or to evade
       proper identification of the person by the investigating officer, is guilty of a
       misdemeanor.” (Italics added.)

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officer he was waiting for a friend, could not provide the friend’s address, and gave the
officer a false name. (Ibid.) The Voeurn O. court found the encounter consensual and
held that because the minor was not under lawful detention or arrest, he had not violated
section 148.9, subdivision (a). (Id. at pp. 796–797.) We find the facts of the instant
action to be indistinguishable from Voeurn O. and that there was insufficient evidence
that appellant was under a lawful detention or arrest when he misidentified himself to
Officer Ballestero.
         Where the prosecution fails to meet its burden of proof in justifying a defendant’s
detention, and the trial court should have granted a suppression motion, the defendant’s
arrest pursuant to section 148.9, subdivision (a) for giving the investigating officer a false
name cannot stand, and the case must be reversed with directions to the trial court to
dismiss the action on remand. (People v. Walker (2012) 210 Cal.App.4th 1372, 1392–
1393.)
                                       DISPOSITION
         The judgment of conviction and order placing appellant on probation are reversed.
The case is remanded to trial court with directions to dismiss the case.




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