NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

INTRODUCTION

Based on two anonymous tips about alleged criminal activities at defendant and appellant Jaime Gonzalez Zurita's home, deputies immediately detained Zurita pending investigation of the crimes and before obtaining sufficient corroboration of the anonymous tips. Zurita resisted detention and was charged and convicted of multiple counts of misdemeanor resisting arrest. Because Zurita was unlawfully detained, the judgment must be reversed.1

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

On February 28, 2009, officers received an anonymous call there was a cock fight at Zurita's house, where, reportedly, approximately 90 people had gathered. When Deputies Angel Grandes and Carolina Roman arrived at the location, the windows were shut, the blinds were drawn, and they couldn't see inside the house. Not hearing any cheering or shouting, the deputies walked through an open gate down the driveway. At the rear of the yard were approximately 150 roosters in hen houses. Because they didn't observe any cock fighting or other crime, the deputies were leaving when Zurita came out of his back door. The deputies explained what they were doing there and left.

Thirty to forty minutes later, the deputies received a second anonymous call that there was a male Hispanic named Jimmy, that there was an active cock fight at the same location, and that a male Hispanic was snorting cocaine in a black truck in front of the house. The caller expressed concern because children were in the front yard. As deputies turned onto Zurita's street, they saw a black truck with tinted windows that prevented them from seeing inside. The truck was parked next door to Zurita's house.

When Deputy Roman tried to open the truck, a man yelled from across the street, "`Hey[,] that's my truck.'" The deputies detained him and his five companions by having them place their hands on the hood of the police car.

Deputy Grandes then saw Zurita near a sport utility vehicle (SUV) with the car door open. Recognizing Zurita from the earlier call, Deputy Grandes told him to turn and place his hands behind his head. Having a clear view down the driveway, Deputy Grandes saw two men walking from the back onto the driveway. The deputy told them to walk towards him with their hands behind their heads. They all walked to where Deputy Roman was detaining the other group of people.

Zurita, however, was upset: he asked why the deputies were there again, said that they'd already talked to him, they were harassing him, and told them to leave him alone. Because Zurita was flailing his arms and dropping them to his side, Deputy Grandes repeatedly told him to keep his hands behind his head. Deputy Grandes had Zurita's two companions sit on the curb, and he asked Zurita to turn and to face the patrol car. The deputy placed Zurita's hands behind Zurita's back and approached to conduct a pat-down search for weapons. But when the deputy put his hands on Zurita, Zurita quickly turned. When Deputy Grandes tried to grab Zurita's arms, Zurita swayed his shoulders violently and tried to punch the deputy, continuing to yell that he was being harassed and telling the deputy to leave him alone. The deputy tried to turn him around again and pin Zurita against the car, but Zurita continued trying to hit and to kick the deputy. They fell to the ground and the deputy put his knees on Zurita's chest and told him to calm down. Zurita grabbed the deputy's radio and ripped his microphone of his shirt, breaking the clip, and swung the microphone around, trying to hit the deputy with it. The deputy punched Zurita four to seven times in the face, breaking his hand. He managed to turn Zurita onto his stomach, but, unable to handcuff him, he pepper sprayed his face. Two other deputies arrived on the scene and helped Deputy Grandes handcuff Zurita; one officer kneed Zurita in the face several times.

II. Procedural background.

On February 18, 2010, the trial court, sitting as the trier of fact, found Zurita not guilty of counts 2, 3 and 4 for felony resisting arrest (Pen. Code, § 148, subd. (a)(1)),2 but found him guilty of counts 5, 6 and 7 for misdemeanor resisting arrest.3 That same day, the court sentenced Zurita to time served (seven days) and placed him on 24 months' summary probation and ordered him to do 20 days of public work.

DISCUSSION

III. Zurita was unlawfully detained.

Zurita contends that his conviction for resisting arrest must be reversed because there was insufficient evidence that the officers were lawfully engaged in the performance of their duties. We agree.

Circumstances short of probable cause to make an arrest may justify a police officer briefly detaining a person for questioning or limited investigation. (In re Tony C. (1978) 21 Cal.3d 888, 892, superseded by statute on another ground as stated in People v. Lloyd (1992) 4 Cal.App.4th 724, 733.) "[T]o justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith." (Id. at p. 893, fn. omitted, citing Terry v. Ohio (1968) 392 U.S. 1, 22.) "A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231.)4

A defendant who nonviolently resists an unlawful detention is not guilty of resisting arrest. The elements of resisting arrest, under section 148, subdivision (a)(1), are: (1) the defendant willfully resisted, delayed, or obstructed a peace officer; (2) when the officer was engaged in the performance of his or her duties; and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties. (See also Yount v. City of Sacramento (2008) 43 Cal.4th 885, 894.) But "`it is no crime in this state to nonviolently resist the unlawful action of police officers.' [Citation.] Thus, `[b]efore a person can be convicted of [a violation of section 148, subdivision (a)] there must be proof beyond a reasonable doubt that the officer was acting lawfully at the time the offense against him was committed.' [Citation.] `"The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in `duties,' for purposes of an offense defined in such terms, if the officer's conduct is unlawful. . . ."' [Citations.] `Under California law, an officer is not lawfully performing her duties when she detains an individual without reasonable suspicion or arrests an individual without probable cause.' [Citation.]" (Garcia v. Superior Court (2009) 177 Cal.App.4th 803, 818-819, italics omitted.)

Where, as here, a detention was based on an anonymous tip, the tip alone does not justify a detention; rather, it must bear a sufficient indicia of reliability. (Florida v. J. L. (2000) 529 U.S. 266, 277.) "Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, [citation], `an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity,' [citation]. As we have recognized, however, there are situations in which an anonymous tip, suitably corroborated, exhibits `sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.' [Citation.]" (Id. at p. 270.) Thus, in Florida, other than an anonymous tip (a young Black man wearing a plaid shirt at a specific bus stop had a gun) nothing about him indicated illegal activity or raised the officers' suspicions. (Cf. Alabama v. White (1990) 496 U.S. 325 [anonymous tip was sufficiently corroborated to give officers reasonable suspicion to stop suspect]; People v. Dolly (2007) 40 Cal.4th 458 [anonymous 911 tip contemporaneously reporting an assault with a firearm and accurately describing the perpetrator, his vehicle, and its location was sufficient to justify an investigatory detention].)

As in Florida, our case too begins with an anonymous call, or rather, two of them.5 The first caller said there was a cock fight at Zurita's home attended by approximately 90 people. When Deputies Roman and Grandes first arrived at Zurita's home, all was quiet. But then they received a second anonymous call approximately 40 minutes later, repeating that there was a cock fight at the location and adding that a man in a black truck was taking cocaine and children were playing nearby. Upon their return to the location, Deputies Grandes and Roman saw a black truck, but couldn't see inside it, and Deputy Grandes said he didn't see any children playing in the front yard. When Deputy Roman tried to open the truck door (apparently there was no one inside it), a man (not Zurita) yelled out that it was his car. The deputies detained this man and his four or five companions. Deputy Grandes then spotted Zurita near an SUV parked on his driveway and immediately detained him, telling him to put his hands on his head.

Nothing in this evidence corroborated the anonymous tip, giving it a sufficient indicia of reliability to justify the detention. In fact, the first call turned out to be inaccurate and unreliable, which should have lessened the credibility of the second call, made just 30 to 40 minutes later. Indeed, when the deputies returned a second time to Zurita's house, all was quiet once again; namely, there was no noise indicating a cock fight was going on. Nor was there anything outwardly suspicious about the black truck: the officers said they could not see anyone snorting cocaine because the windows were tinted, and Deputy Grandes did not see children playing nearby as the caller had said. Zurita was not charged with a cock fighting or drug-related offense, nor does it appear were any of the people detained.6

It is also unclear what connection the black truck had to Zurita to justify his detention. It was not parked in front of Zurita's house. Someone else claimed to be the owner before the deputies even saw Zurita. What is clear is Zurita was not engaged in any suspicious behavior before being detained; Deputy Grandes admitted as much when he said that Zurita wasn't doing anything illegal. Rather, Zurita was merely on his driveway, either getting something out of an SUV or getting into it, when Deputy Grandes told him to put his hands on his head. No exigent circumstances called for immediate detention. (See generally, People v. Wells (2006) 38 Cal.4th 1078 [anonymous tip that a possibly intoxicated driver was weaving all over the road gave rise to a reasonable suspicion justifying an investigatory stop and detention]; People v. Dolly, supra, 40 Cal.4th 458.)

There were no specific articulable facts that, considered in light of the totality of the circumstances, provided some objective manifestation that Zurita might be involved in criminal activity. Instead, it appears that the deputies detained Zurita as a matter of course and "standard procedure." The Fourth Amendment, however, does not permit detention under such circumstances. Because Zurita's detention was illegal, his conviction for resisting arrest must therefore be reversed. The request to review documents under Pitchess is moot.

DISPOSITION

The judgment is reversed.

We concur.

KLEIN, P. J.

KITCHING, J.