In re Eric R.

Filed 7/3/07 In re Eric R. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Steff R. Padilla, Commissioner. Affirmed as modified.

Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

________________

Appellant Eric R. appeals from an order sustaining a petition filed by the People pursuant to Welfare and Institutions Code section 602 alleging that he had committed the crime of possession of a firearm by a minor. (Pen. Code, 12101, subd. (a)(1).)^[1]

CONTENTIONS

Appellant contends that: (1) the warrantless entry by police cannot be justified because exigent circumstances did not exist; (2) his suppression motion was improperly denied because he was detained without reasonable suspicion; (3) the trial court erred in admitting his statement that he possessed a handgun because it was the result of psychological coercion and was not voluntarily given; (4) his confession was the fruit of the unlawful entry and the unlawful detention; and (5) the trial court erred in imposing probation conditions that appellant not associate with anyone disapproved of by his parents or probation officer and prohibiting appellant from remaining in the presence of any unlawfully armed person.

FACTS AND PROCEDURAL HISTORY

On May 1, 2006, Los Angeles Deputy Sheriff Jesse Polanco and his partner responded to a call that someone had been shot at a residence in Lynwood. Deputy Polanco was also advised that the shooter was a male Hispanic in a brown van.

Deputy Polanco found a spent shell casing two feet from the curb in front of the residence. He also noticed a trail of blood leading to an upstairs apartment. Through the open doorway, he could see appellant wiping blood off his arms and washing his hands. Deputy Polanco entered the apartment and read appellant his rights; detained him; handcuffed him; and escorted him to the police car. Appellant told the deputy that he and his friend were in his apartment looking at a gun, when someone outside the apartment fired through the window, striking his friend, Jonathan, in the chest. He then took Jonathan to a hospital. Appellant stated that the gun was upstairs in a drawer by the window. Appellant signed a search consent form giving the officers permission to enter the apartment to search for a .22 (R) Black. Appellant wrote the following statement: I have a Black .22 (R) I asked my sister to put it away for me. The deputy recovered the nine-millimeter handgun which contained seven live rounds. He noticed that the apartment window was broken, apparently by a bullet that had been fired from outside.^[2]Appellants sister signed a statement that: Jonathan was looking at a gun in front of the window when he got shot; appellant took Jonathan to the hospital; and she hid the gun in the second to the last drawer in her dresser.

Appellant testified in his defense that a month prior to the shooting, someone had tried to sell him a black nine-millimeter handgun. The evening Jonathan was shot, Jonathan told him that he had bought a black nine-millimeter handgun. Appellant did not identify Jonathan as the owner of the gun to the police because he did not want to get him into trouble. Appellant wrote the statement because the officers threatened to take his child away, and he was nervous and scared. He did not know how the gun got into the chest of drawers, denied that he asked his sister to put the gun away, and believed that his sister had told the officers where the gun was located.

DISCUSSION

I. Whether the warrantless entry into the apartment was based on exigent circumstances

A. The motion to suppress

Appellant filed a motion to suppress evidence pursuant to Welfare and Institutions Code section 700.1. At the hearing on the motion to suppress, the People argued that Deputy Polanco was justified in making a warrantless entry into the apartment based on exigent circumstances. The trial court agreed with the People and denied the motion to suppress.

On appeal, appellant contends that his trial counsel was ineffective by failing to make an adequate reply to the Peoples argument that Brigham City, Utah v. Stuart (2006) __ U.S.__ [126 S.Ct. 1943] (Brigham) was dispositive on the issue of exigent circumstances. He also claims that: the People failed to establish exigent circumstances to justify the warrantless entry and search; the emergency aid exception to the requirement of a warrant upon entry did not apply; and under the circumstances, the officers should have announced that they were entering the apartment.

B. Ineffective assistance of counsel

In order to sustain on appeal a claim of ineffective assistance of counsel, a defendant must show counsels performance was deficient and it is reasonably probable the defendant would have achieved a more favorable result in the absence of the asserted error. (People v. Ledesma (1987) 43 Cal.3d 171, 216217.) Trial counsels performance may be deemed deficient only if trial counsel makes a critical tactical decision which would not be made by diligent, ordinarily prudent lawyers in criminal cases. (People v. Pope (1979) 23 Cal.3d 412, 424 [abrogated on other grounds as stated in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10].) Furthermore, a defendant must affirmatively show that it is reasonably probable a determination more favorable to him would have resulted in the absence of counsels failings. (Strickland v. Washington (1984) 466 U.S. 668, 694696; People v. Ledesma, supra, at pp. 217218.)

Appellant admits that at the outset, his trial counsel characterized Brigham as totally distinguishable, but complains that his counsel failed to reply to the Peoples subsequent argument regarding the warrantless entry, constituting ineffective assistance of counsel.

In Brigham, the Supreme Court noted that [W]arrants are generally required to search a persons 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, supra, 126 S.Ct. at p. 1947.) The Court held that 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.) In Brigham, officers responding to a call regarding a loud party at a residence observed two juveniles drinking beer in the backyard. Through the window, the officers saw four adults attempting to restrain a juvenile who struggled free and punched one of the adults in the face. The victim then began spitting blood into a nearby sink. After announcing their presence, which was unheard over the tumult by the persons in the household, the officers entered the kitchen. The Supreme Court concluded exigent circumstances justified the warrantless entry because the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning. (Id. at p. 1949.)

The record shows that appellants trial counsel initially distinguished Brigham by arguing that the deputy had no reason to believe that appellant was involved in a shooting; the brown van was not there when he arrived; the deputy did not ask appellant if he was injured; and the deputy saw that appellant was not injured. He argued that [i]f an officer goes to a house and sees something occurring; of course, the officer has the ability to go into that house. And in this case, it was dealing [sic] whether the police may enter a home without a warrant when they have an objectively reasonable basis for believing an occupant is seriously injured or eminently threatened with such injury. Trial counsel thus made his point that exigent circumstances did not exist justifying the warrantless search. He also argued that there were no specific and articulable facts causing the deputy to suspect that appellant was involved in criminal activity sufficient to justify the detention. The People then argued that exigent circumstances did exist, based on the call of shots fired, the trail of blood leading to the apartment, the sight of appellant wiping blood off his body, as well as the bullet hole in the window. Appellants trial counsel then addressed appellants statement that the deputies had threatened to remove his child from the home, challenged by the People as self-serving. Appellants counsel concluded by drawing a distinction between the warrantless entry and the detention, and arguing that the detention was illegal. The trial court held that exigent circumstances clearly existed.

We disagree that trial counsel was ineffective. There was no need for trial counsel to repeat his argument that the warrantless entry was illegal and Brigham was distinguishable. He may well have had a tactical reason for choosing to focus on the illegality of the detention as the stronger argument. (People v. Wright (1990) 52 Cal.3d 367, 412 [reviewing courts defer to counsels reasonable tactical decisions in examining complaints of ineffective assistance of counsel].) And, appellant was not prejudiced because the trial court carefully considered the facts and argument by trial counsel in determining that exigent circumstances existed; repetition of the same argument would not have aided appellant; and, as discussed infra, the emergency aid doctrine and knock and announce requirements do not apply here.

C. The People established the existence of exigent circumstances

We disagree with appellants contention that exigent circumstances did not exist.

In order to determine whether exigent circumstances justifying a warrantless entry exist, the court looks to what the officer knew or believed and what action he took in response; and whether the action was reasonable under the circumstances. (People v. Duncan (1986) 42 Cal.3d 91, 97.) Here, as the trial court noted, the deputy had received a call indicating that someone had been shot. Upon pulling up to the residence, the deputy saw a trail of blood leading to an apartment. Through an open doorway he could see appellant washing blood off himself. The deputy could reasonably have assumed that someone, perhaps appellant, was injured inside the apartment. He did not know where the shooter was located, or whether appellant was the perpetrator or victim.

D. The emergency aid exception

Appellant argues that the warrantless entry was illegal because the emergency aid exception did not apply. The emergency aid exception is a subcategory of the community caretaker exception and applies only when police enter a dwelling without a warrant to render emergency aid and assistance to a person whom they reasonably believe to be in distress and in need of that assistance. (People v. Ray (1999) 21 Cal.4th 464, 470.) The emergency aid exception, however, applies only when the police are not engaged in crime-solving activities. (Id. at p. 471.) Because the deputy here was involved in crime-solving activities, it is true that the emergency aid doctrine does not apply. But we have concluded that the deputys warrantless entry was legal based on exigent circumstances during the performance of his crime-solving activities. As such, it is not relevant that the emergency aid doctrine does not support a warrantless entry.

E. The knock-and-announce requirement

Appellants further argument that the deputys failure to comply with the knock-and-announce requirement rendered the subsequent search unreasonable also fails. Prior to making a forcible entry into a house, police officers must knock on the door and announce their presence and purpose. (Wilson v. Arkansas (1995) 514 U.S. 927, 934.) It is not necessary when circumstances presen[t] a threat of physical violence, or if there is reason to believe that evidence would likely be destroyed if advance notice were given, [citation] or if knocking and announcing would be futile, [citation]. We require only that police have a reasonable suspicion . . . under the particular circumstances that one of these grounds for failing to knock and announce exists, and we have acknowledged that [t]his showing is not high. (Hudson v. Michigan(2006) __ U.S.__, 126 S.Ct. 2159, 21622163 [violation of knock and announce rule does not lead to suppression of evidence].) The report of someone being shot, a trail of blood, and the sight of appellant washing blood off his arms, supports a reasonable belief on behalf of the deputy that physical violence had occurred or was occurring or that evidence could be destroyed if advance notice were given, thus obviating the need to knock and announce. Even if the deputy violated the knock-and-announce requirements, that violation does not trigger the exclusionary rule, and appellants claim that the evidence should have been suppressed therefore fails. (Id. at p. 2165)

II. Whether appellants suppression motion was improperly denied because appellant was detained without reasonable suspicion

Appellant urges that the suppression motion was improperly denied because the deputy did not have specific, articulable, and objective facts that could cause him to reasonably suspect appellant of criminal activity. Thus, he reasons, appellants consent to search the apartment was an indivisible part of the unlawful detention and the evidence recovered from the apartment should have been suppressed. We disagree.

On reviewing a motion to suppress, the trial courts factual findings relating to the challenged search or seizure must be upheld if they are supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) In determining whether the search or seizure was reasonable under the Fourth Amendment, the appellate court exercises its independent judgment. (Ibid.)

A police officer may detain a suspect based on a reasonable suspicion that the suspect has committed or is about to commit a crime. (People v. Bennett (1998) 17 Cal.4th 373, 387.) This detention is considered a limited intrusion justified by special law enforcement interests. (Ibid.) 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.) Reasonable suspicion can arise from information that is less reliable than that required to show probable cause and is dependent on the content of information possessed by the police and its degree of reliability. (People v. Bennett, supra, at p. 387.)

As previously discussed, the evidence showed that Deputy Polanco responded to a call that someone had been shot. Arriving at the residence, the deputy saw a trail of blood leading upstairs to appellants apartment, where appellant was washing blood off his hands. The deputy could thus have reasonably concluded that appellant was either the perpetrator or the victim, and had been involved in the reported shooting. Although in hindsight, we now know that appellant was a bystander in the shooting, and that his friend Jonathan was the victim, at the time of the shooting the totality of the circumstances could reasonably indicate to Deputy Polanco that appellant might have been involved in criminal activity. (People v. Coulombe (2000) 86 Cal.App.4th 52, 5960 [two reports by people that a man in a white cap was carrying a gun was sufficient to support the officers reasonable suspicion that criminal activity was afoot and that defendant was connected with it and presently armed].) Moreover, a limited protective sweep by the officers was justified under the same facts. (Maryland v. Buie (1990) 494 U.S. 325, 336337 [Fourth Amendment permits properly limited protective sweep in conjunction with in-home arrest where officer reasonably believes, based on specific articulable facts, that the area to be swept harbors an individual posing a danger to those on the arrest scene].)

This case is unlike People v.Pitts (2004) 117 Cal.App.4th 881, cited by appellant, where the officers detained the defendant based on: speculation that the defendant was involved in drug activity; a bulletin targeting the defendant as a suspect but based merely on an allegation by an untested informant; speculation that a certain location was used as a site for drug sales; speculation that two men in the area were involved in drug activity; and the sight of defendant rounding a corner from the location the officers believed was a drug site. (Id. at pp. 886889.)

Rather, as mentioned, the deputy responded to a call of someone being shot; he saw a trail of blood leading to appellants apartment; and he saw appellant washing blood off his arms. This evidence, both reported and observed, could lead the deputy to reasonably suspect that a crime had been committed. His suspicion was not baseless speculation.

Accordingly, because the detention was lawful, appellants further arguments that his consent to search for the gun was involuntary because it immediately followed the illegal search, and that evidence of the gun and the deputys observation should have been suppressed as fruit of the poisonous tree, must also fail.

III. Whether appellants statement regarding the location of the gun was voluntary

Appellant contends that his statement to Deputy Polanco that he had a handgun and had asked his sister to put the gun away, was a product of psychological coercion and was not voluntary because Deputy Polanco threatened to remove his child.

The litmus test of a valid waiver or confession is voluntariness. (People v. Kelly (1990) 51 Cal.3d 931, 950.) In reviewing the trial courts determinations of voluntariness, we apply an independent standard of review, doing so in light of the record in its entirety, including all the surrounding circumstancesboth the characteristics of the accused and the details of the [encounter] . . . . [citations]. (People v. Neal (2003) 31 Cal.4th 63, 80.) . . . [W]e accept the trial courts resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we give great weight to the considered conclusions of a lower court that has previously reviewed the same evidence. [Citation.] (People v. Whitson (1998) 17 Cal.4th 229, 248.)

Appellant argues that his testimony that Deputy Polanco threatened to take his child away if he did not tell him where the gun was located was not actually controverted by Deputy Polanco. Deputy Polanco testified that after he read appellant his Miranda^[3]rights, appellant told him that while he and his friend were looking at a gun, his friend was shot through the window. According to appellant, at that point, Deputy Polanco threatened to take his child away if he did not tell him more about the gun and where it was located. Appellant told the deputy that the gun was upstairs in a dresser drawer by the window and then signed a search consent form. On cross-examination, Deputy Polanco testified that he did not recall talking to appellant about his child or saying that appellants baby would be taken away from him.

We first note that it is undisputed that appellant told Deputy Polanco about the gun immediately after he was Mirandized. It was appellants testimony that the officer threatened him about taking his child away if he did not disclose the location of the gun. Appellant challenges the voluntariness of his consent to search after he had already informed Deputy Polanco of the gun. The trial court considered all of the testimony and concluded appellants consent was voluntary. Even if we assume that Deputy Polanco told appellant that his baby would be taken away from him, the circumstances here do not rise to the level of coercion in the cases upon which appellant relies and can be clearly distinguished. In Lynumn v. Illinois (1963) 372 U.S. 528, 530534, the court found coercion when police officers told the defendant, who had no previous experience with the criminal law, that she would lose financial aid for her children and they would send her to jail for 10 years and take her children away, while she was encircled in her apartment by three officers and the felon who had purportedly set her up. Furthermore, the police repeatedly stated they knew she had committed the crime, until she admitted her involvement. Here, appellant voluntarily told the officers that he and the shooting victim were looking at a gun in appellants apartment before there was any mention of his child.

And, in United States v. Tingle (9th Cir. 1981) 658 F.2d 1331, 13341336, defendants confession that she helped her boyfriend plan a bank robbery was found to be involuntary where the officers told her she could be imprisoned for 40 years for the crimes she was suspected of committing, and that she would not see her two-year-old child for a while, and that if she failed to cooperate the prosecutor would be informed that she was stubborn and hardheaded. Here again, the fact of the gun had already been disclosed. Appellant was already in custody. He had admitted handling a gun in his apartment. Under the circumstances, we cannot conclude that the trial courts conclusion that the consent to search was voluntary was error.

IV. Whether appellants statements should have been excluded because they were the fruit of the unlawful entry and unlawful detention

Appellant next claims that his statements should have been suppressed because they were the fruit of the illegal entry and detention. We disagree.

First, as discussed supra, neither the entry nor the detention were illegal. Moreover, even if the evidence was tainted by illegal actions of the deputy, an intervening independent act by defendant or a third party may break the causal chain in such a way that the evidence is not in fact obtained by exploitation of the illegality. (People v. Sims (1993) 5 Cal.4th 405, 445.) Here, the reading to appellant of his Miranda rights and signing of the waiver, intervened between the allegedly illegal entry and detention. Also, appellants sister, an independent third party, told the deputy about the location of the gun. She stated that appellant was handling the gun when the shooting occurred, and she also showed the deputy the location of the gun. (Segura v. United States (1984) 468 U.S. 796, 804805 [evidence obtained through the legal police conduct shall not be excluded if an independent source for discovery of the evidence exists].)

Appellants citation to People v. Gonzalez (1998) 64 Cal.App.4th 432, 445 does not assist him in his argument that his confession was not an act of free will. There, the police detained a suspect riding in a car that had been used in a previous robbery, with the hope something would turn up. In Gonzales, the court found the arrest to have been without probable cause, and that even after a Miranda admonition, a confession following such flagrant misconduct without any meaningful intervening event was involuntary. (People v.Gonzalez, supra, at p. 446.) Here, the officer had information of a shooting at the scene, found a spent casing at the location, and discovered appellant at the end of a trail of blood. There was no flagrant misconduct rendering appellants consent involuntary.

V. Whether the trial court should modify the conditions of probation

Probation condition No. 15 states that appellant shall not associate with persons disapproved by his parents and probation officer, and probation condition No. 16 states that he shall not be in the presence of any unlawfully armed person. The People concede that these conditions lack an express requirement of knowledge and are therefore unconstitutionally overbroad and vague under In Re Sheena K. (2007) 40 Cal.4th 875. Our Supreme Court held that where a probation condition does not notify the defendant in advance with whom he or she shall not associate unless approved by her probation officer, the Court of Appeal shall correct the defective probation condition by inserting an explicit knowledge requirement to render the condition constitutional. (Id. at pp. 891892.)

Both appellant and the People agree that the conditions of probation should be modified as follows: minor is not to associate with persons of whom he knows his parents and his probation officer disapprove or with anyone he knows is on probation or parole; and minor is not to remain in the presence of any unlawfully armed person when he knows the person is unlawfully armed.

DISPOSITION

Probation condition No. 15 is modified to read: minor is not to associate with persons of whom he knows his parents and his probation officer disapprove or with anyone he knows is on probation or parole. Probation condition No. 16 is modified to read: minor is not to remain in the presence of any unlawfully armed person when he knows the person is unlawfully armed. In all other respects, the order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________, J.

DOI TODD

We concur:

_____________________, P. J.

BOREN

_____________________, J.

ASHMANN-GERST

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] It is unclear from the record whether the deputy saw the bullet hole in the window before or after he entered the apartment.

^[3]Miranda v. Arizona (1966) 384 U.S. 436.