Opinion
B226610
08-24-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH CHAVEZ, Defendant and Appellant.
Law Offices of Eric Cioffi, Eric Cioffi, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA085284)
APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero, Judge. Affirmed in part, modified, and remanded.
Law Offices of Eric Cioffi, Eric Cioffi, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Joseph Chavez (defendant) pleaded no contest to possession of marijuana for sale (Health & Saf. Code, § 11359). On appeal, defendant contends that the trial court erred in denying his motion to suppress evidence and requests that we reverse the trial court's ruling. Defendant also contends that two conditions placed on his probation are constitutionally vague because they lack a knowledge requirement. We affirm the judgment, but modify the conditions imposed on defendant's probation and remand to prepare a minute order showing these corrected conditions.
BACKGROUND
Pursuant to the applicable standard of review discussed below, we state the facts in the light most favorable to the prosecution as the party for whom the trial court's ruling was in favor. (People v. Zamudio (2008) 43 Cal.4th 327, 342.)
Long Beach Police Department Officer Eduardo Saldana testified that on April 1, 2010, he responded to calls of a possible domestic violence incident at defendant's residence. Officer Saldana was informed that the incident involved injuries. When Officer Saldana arrived at defendant's house, he saw the fire department treating a woman later identified as Neyra Chavez. Neyra had some redness on her face and abrasions to her knees.
Because defendant and Neyra Chavez share the same surname, Neyra Chavez is referred to by her first name.
Defendant's mother testified that defendant and Neyra were married, but that they were estranged and Neyra had not been living at the house for approximately one month prior to the incident. Officer Saldana testified that Neyra told him that she returned to the house to retrieve her daughter and to confront defendant because her daughter informed her that defendant had another woman there. Neyra was very upset and angry. Neyra entered the house and slapped defendant. Defendant's mother "intervened, got in the middle of them as [Neyra] tried to go after [defendant's] girlfriend." Neyra was pushed toward the front door and fell, causing her to sustain injuries. Neyra believed that she fell because in the process of being restrained by the family to avoid a fight between her and defendant's girlfriend, someone inadvertently pushed Neyra.
Officer Saldana testified that he felt it was necessary to investigate further what had taken place because "at this point we were only talking about one party." Neyra was left with another officer, and Officers Saldana and Hernandez went to the front door and announced their presence. Defendant's mother and sister went to the front door, and Officer Saldana directed them to go outside to the front porch. Officer Hernandez went inside the house, entered the living room, and called for defendant.
Officer Saldana testified that defendant came "out from the rear of the residence." Officer Hernandez asked defendant if there was anyone else in the house, and defendant replied that his girlfriend, Elizabeth Sanchez, was in the bedroom. Defendant sat in the living room where Officer Saldana could watch him, his mother and sister. Officer Hernandez retrieved Sanchez from defendant's bedroom. Sanchez testified that Officer Hernandez walked into the room, asked who she was, and told her to go sit in the living room. It was stipulated that if called as a witness, Officer Hernandez would testify that when he entered the room to escort Sanchez out, the closet door was open and he saw jars of marijuana on the shelf. Officer Saldana testified that he also observed the marijuana in plain view.
Officer Saldana testified that the purpose for him and Officer Hernandez going into the residence was, "Number one, to make sure no one else was injured. Believing it was a possible domestic violence, we had to secure and make sure that the suspect or any other witnesses or even the crime scene itself was not further contaminated and that we had everybody secured and we had everybody accountable." Officer Saldana said he believed there was exigent circumstances to enter the house, "[b]ecause [Neyra] stated, number one, that she had slapped [defendant] so we were going to see if he was injured, and that she also went after his girlfriend so we were going to see if she was injured. So, injuries were the primary concern. Number two, with domestic violence suspects, to make sure that no one else was . . . in the house hiding from us . . . or that our crime scene was not contaminated in any way."
A search warrant for the house was obtained after the observation of the marijuana. The statement of probable cause in support of the search warrant stated that the officers were summoned to defendant's house to investigate a domestic violence incident that had just occurred, and upon their arrival at the house Neyra stated that defendant was her husband, he was inside his bedroom and had a violent history. Neyra further stated that "she left" defendant because she knows that he sells drugs. The officers entered the house to further investigate the domestic violence incident, and the officers observed "approximately nine glass jars each filled with a green leafy substance suspected to be marijuana."
Pursuant to the search warrant, officers Saldana and Ornelas searched defendant's bedroom in his house. The officers recovered 12 mason glass jars containing a green, leafy substance believed to be marijuana, two boxes of clear plastic sandwich bags, a digital scale, and a cellular telephone.
B. Motion to Suppress
On July 19, 2010, defendant filed a motion to suppress evidence pursuant to Penal Code section 1538.5, seeking to suppress "the evidence seized under the warrant" because the warrant was issued based on illegally obtained evidence. During the hearing on defendant's motion, the prosecutor stipulated that the warrant would not "survive" if the initial, warrantless entry was deemed unlawful.
The trial court denied defendant's motion, stating that, "The standard here is reasonableness. The question is whether the officers were reasonable in pursuing further investigation to determine what the facts were. They have a potentially volatile situation, domestic violence. They have a person there with more than insignificant injuries. She gives one explanation. Are the officers required to accept that? There may be another injured party inside. She indicated a slap. You know, was it really a punch? Did someone fall? Is somebody injured in there? Is the other female—was she injured in some fashion? [Neyra] indicated she had gone after the woman. [¶] So the issue is not what is determined later on in a court of law, but what the officer[s were] faced with. It was a volatile family domestic-violence-type situation. [The officers do not] know what [they are] facing in the house. If there is an injured party and [they do] nothing, go[] and get[] a warrant, an hour-and-a-half later somebody is bleeding to death in there and something else happened, then [they haven't] done [their] job[s]. So the issue is [were they] reasonable?" The trial court concluded, "[The officers] acted reasonably. The motion is denied."
C. Procedural Background
The District Attorney of Los Angeles County filed an information charging defendant with possession of marijuana for sale in violation of Health & Safety Code section 11359. Defendant pleaded not guilty, and filed a motion to suppress evidence pursuant to Penal Code section 1538.5. The trial court denied defendant's motion, and defendant changed his plea to no contest. The trial court suspended the imposition of a sentence, and placed defendant on probation for three years. Two of the conditions imposed by the trial court on defendant's probation was that defendant not use or possess any narcotics, dangerous or restricted drugs or associated paraphernalia, except with valid prescription, and stay away from places where users congregate, and not own, use or possess any dangerous or deadly weapons, including firearms, knives or other concealable weapons.
DISCUSSION
A. Warrantless Search
Defendant contends that the warrantless search violated his rights under Fourth Amendment to the United States Constitution because there were insufficient facts to establish that, (1) there were exigent circumstances, (2) there was a valid protective sweep of the house, or (3) the emergency aid doctrine applied. We disagree.
i. Standard of Review
"The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Jenkins (2000) 22 Cal.4th 900, 969.) In determining whether substantial evidence supports the trial court's findings, "If there is conflicting testimony, we must accept . . . the version of events most favorable to the People, to the extent the record supports them." (People v. Zamudio, supra, 43 Cal.4th at p. 342.)
ii. Analysis
The Fourth Amendment to the United States Constitution guarantees freedom from unreasonable search and seizure. (U.S. Const., 4th Amend.; U.S. Const., 14th Amend; People v. Rogers (2009) 46 Cal.4th 1136, 1156.) Evidence obtained in violation of this right is inadmissible in a criminal trial. (Mapp v. Ohio (1961) 367 U.S. 643, 654.) A defendant may make a motion to suppress such evidence under Penal Code section 1538.5. "Because a warrantless entry into a home conduct a search and seizure is presumptively unreasonable under the Fourth Amendment [citation], the government bears the burden of establishing that exigent circumstances or another exception to the warrant requirement justified the entry. [Citation.]" (People v. Rogers, supra, 46 Cal.4th at p. 1156.)
"'"[W]arrants are generally required to search a person's home or his person unless 'the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment."' (Brigham City v. Stuart (2006) 547 U.S. 398, 403 [164 L.Ed.2d 650, 126 S.Ct. 1943] (Brigham City).)One such exigency is presented by '"'[t]he need to protect or preserve life or avoid serious injury . . . .'" [Citations.] Accordingly, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.' (Ibid)Moreover, '[a]n action is "reasonable" under the Fourth Amendment, regardless of the individual officer's state of mind, "as long as the circumstances, viewed objectively, justify [the] action." [Citation.] The officer's subjective motivation is irrelevant.' (Id. at p. 404.) ¶ Our Supreme Court is in accord. '[T]he exigent circumstances doctrine constitutes an exception to the warrant requirement when an emergency situation requires swift action to prevent imminent danger to life. [Citation.] . . . In this regard, "'"[t]here is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers."'" [Citation.] Generally, a court will find a warrantless entry justified if the facts available to the officer at the moment of the entry would cause a person of reasonable caution to believe that the action taken was appropriate.' (Rogers, supra, 46 Cal.4th at pp. 1156-1157, italics added.)" (People v. Hochstraser (2009) 178 Cal.App.4th 883, 895.)
The officers responded to a call of possible domestic violence incident at defendant's residence, involving injuries. It was a volatile situation. Defendant and Neyra were married, but they were recently estranged. Neyra had dropped off her daughter at defendant's residence only to be advised that defendant had another woman at the house. Neyra was very upset and angry, and she entered defendant's house and slapped him. Neyra also attempted to "go after" the woman, but according to Neyra, defendant's mother had "intervened." Neyra was pushed toward the front door and fell, causing her to sustain abrasions to her knees and some redness on her face. Officer Hernandez called for defendant who presented himself from the rear of the residence, and advised Officer Hernandez that defendant's girlfriend was in the bedroom.
Officer Saldana testified that the purpose for him and Officer Hernandez going into the residence included ensuring that "no one else was injured" and "we had everybody secured and we had everybody accountable." Officer Saldana explained that there was exigent circumstances to enter the house, because, inter alia, Neyra had slapped defendant and they "were going to see if he was injured, and that [Neyra] also went after his girlfriend so we were going to see if she was injured." Officer Saldana also testified that they needed to "to make sure that no one else was . . . in the house hiding from us . . . ."
The officers' actions prior to obtaining the search warrant were justified because of the exigency presented by '"'"[t]he need to protect or preserve life or avoid serious injury . . . .'"'" (People v. Hochstraser, supra, 178 Cal. App. 4th at p. 895.) The officers were confronting a volatile situation, with violent acts and sustained injuries, and they knew that defendant's girlfriend was in the house and was the subject of at least one attempted assault during the incident. The officers had facts that "would cause a person of reasonable caution to believe that the action taken was appropriate." [Citation.]" (Id., italics omitted.)
Defendant contends that there was no indication that Sanchez was injured because Neyra told the officers that defendant's mother "intervened," when Neyra tried to "go after" Sanchez, implying that Neyra never succeeded in attempting to assault Sanchez. However, "'When a police officer is confronted with two reasonable competing inferences, one that would justify the search and another that would not, the officer is entitled to rely on the reasonable inference justifying the search.'" (People v. Troyer (2011) 51 Cal.4th 599, 613, quoting from State v. Mielke (Wis. Ct.App. 2002) 653 N.W.2d 316, 319.) The officers knew Neyra attempted to assault Sanchez, and it was reasonable to infer that Neyra might have been successful in that or other attempts to assault Sanchez. At that point, the officers did not have to believe Neyra's account of what she had done.
Defendant cites People v. Ormonde (2006) 143 Cal.App.4th 282, which held that there were insufficient facts to establish exigent circumstances justifying a warrantless search, and that "the seriousness of the offense [i.e., domestic violence] does not, by itself, give rise to an exigent circumstance." (Id. at pp. 291.) In Ormonde, the domestic violence occurred outside the residence, and one of the officers testified that he did not think that there were people in the house. (Ibid.) The court stated that the objective facts circumstances known to the officers "fell short of supplying them with probable cause to believe there was someone in the apartment who was either in danger or dangerous to them." (Id. at p. 292.)
People v. Ormonde, supra, 143 Cal.App.4th 282 is distinguishable from this case. Here, the warrantless search was not based on the volatile situation alone. As stated ante, the officers had information that the domestic violence occurred inside defendant's house. The officers also knew that injuries had been sustained during the incident, and someone was inside defendant's house who was the subject of at least an attempted assault by Neyra.
Accordingly, the officers' actions prior to obtaining the search warrant were justified because of the exigency presented. We therefore do not reach the issues of whether the warrantless search was justified under the emergency aid doctrine, or as a valid protective sweep of the house.
B. Conditions of Probation
Defendant contends that two of the conditions that the trial court placed on his probation were constitutionally vague because they lacked a knowledge requirement. One of those conditions was that defendant "not use or possess any narcotics, dangerous or restricted drugs or associated paraphernalia, except with valid prescription, and stay away from places where users congregate." The other condition complained of by defendant was that defendant "not own, use or possess any dangerous or deadly weapons, including firearms, knives or other concealable weapons." Defendant requests that the conditions be modified. Respondent agrees.
Although appellant failed to object to the challenged probation condition in the trial court, his claim may be raised for the first time on appeal because it involves a question of law. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) The challenged probation conditions in this case are similar to the one challenged in In re Sheena K., which was held to be constitutionally vague because it did not require personal knowledge of facts by the probationer. (Id. at pp. 891-892.) There, as here, the appropriate response is to add an explicit knowledge provision.
DISPOSITION
Defendant's probation conditions are modified to read that defendant: (1) "not knowingly use or possess any narcotics, dangerous or restricted drugs or associated paraphernalia, except with valid prescription, and stay away from places where he knows users congregate", and (2) "not knowingly own, use or possess any dangerous or deadly weapons, including firearms, knives or other concealable weapons." The matter is remanded for the trial court to prepare a minute order showing this corrected condition and to deliver an amended copy to all affected persons. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, J. We concur:
TURNER, P. J.
KRIEGLER, J.