P. v. Hix
Filed 5/9/13
P. v. Hix 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NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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
>
THE PEOPLE, Plaintiff and Respondent, v. RONALD STEWART HIX, Defendant and Appellant. | B244640 (Los Angeles County Super. Ct. No. 1PK05401) |
APPEAL from a judgment of the Superior Court of
County. Christian R.
Gullon, Judge. Affirmed.
Law Offices of Chad R. Maddox and Chad R. Maddox for Defendant and
Appellant.
Jackie Lacey, District Attorney, Phyllis Asayama and Roberta Schwartz,
Deputy District Attorneys for Plaintiff and Respondent.
Defendant
and appellant Ronald Stewart Hix (defendant) appeals from the judgment entered
following his guilty plea and conviction of driving a vehicle while having a
blood alcohol level of .08 percent or higher, a misdemeanor in violation of
Vehicle Code section 23152, subdivision (b).
Defendant contends the trial court erred by denying his
A
misdemeanor complaint filed by the Los Angeles County District Attorney alleged
that on or about August 11, 2011, defendant drove a vehicle while being under
the influence of alcohol, in violation of Vehicle Code section 23152,
subdivision (a), and drove a vehicle while having a blood alcohol level of .08
percent or higher, in violation of Vehicle Code section 23512, subdivision (b).
Defendant
filed a motion to suppress evidence pursuant to Penal Code section 1538.5 on
the ground that his arrest was illegal because the arresting officer had no
reasonable suspicion or probable cause to stop and detain him. Defendant’s motion to suppress was heard and
testimony was taken in connection with that motion on January 24, 2012.
Officer
Rivera, a patrol officer assigned to the City of Pomona
with 20 years of experience, testified that on August 11, 2011, at 1:00
a.m., he was driving northbound on San
Antonio Street when he saw a vehicle stopped on
the right curb with its brake lights on.
The driver of the vehicle was talking to a female pedestrian standing on
the curb. As Rivera’s vehicle
approached, defendant’s car pulled away from the curb, turning eastbound onto Hawthorne
Place.
Rivera stopped and asked the pedestrian what was going on, and the
pedestrian responded that the driver had been trying to start a conversation
with her. Rivera asked the pedestrian if
she knew the driver, and she said no.
When asked by the prosecutor whether Rivera had an opinion as to whether
or not the pedestrian was a prostitute, Rivera responded that it “wouldn’t
surprise me,†given the time of day and the area, which was known for narcotics
and prostitution.
Rivera
then proceeded to follow defendant’s vehicle as it proceeded eastbound on Hawthorne
Place, a residential street with cars parked along
both sides. Defendant was driving within
the speed limit, his vehicle was not weaving back and forth, and Rivera
observed no Vehicle Code violation.
Rivera noticed, however, that defendant’s vehicle was veering toward the
cars parked along the south curbline and came within a foot of hitting those
cars, even though there was ample room on the street -- approximately 25 feet
-- between the cars parked on either side.
Rivera then “conducted a traffic stop, a welfare check to find out if
the driver was okay.†He did so by
activating the red light on his black and white patrol car, thereby indicating
that he wanted defendant to pull over.
Defendant was in the process of making a southbound turn from Hawthorne
Place onto Mountain View
Avenue, and Rivera observed that the front tire of
defendant’s vehicle came within three feet of striking the curb.
At
the conclusion of Officer Rivera’s testimony, the trial court heard argument
from the parties and denied defendant’s motion to suppress on the grounds that
the officer had a reasonable suspicion of criminal activity that warranted
further investigation and that the stop was a reasonable exercise of the
officer’s community caretaking function.
Defendant
reserved the right to appeal the trial court’s denial of the motion to suppress
and pleaded guilty to driving a vehicle while having a blood alcohol content of
.08 percent or higher. The charge of
driving a vehicle while under the influence of alcohol was dismissed. Defendant was placed on three years of
summary probation and was ordered to pay fines, fees, and penalty assessments
and to comply with the terms and conditions of his probation.
Defendant
filed a timely notice of appeal, and the Appellate Division of the
Los Angeles County Superior Court affirmed the conviction in case No.
BR049880. On November 13, 2012, we granted defendant’s
petition to transfer and ordered the case transferred to this court. (Cal. Rules of Court, rules 8.1000, 8.1002.)
I. Applicable legal principles
The
Fourth Amendment to the United States Constitution protects citizens from
unreasonable searches and seizures by law enforcement authorities. To be considered reasonable, a search and
seizure must generally be conducted pursuant to a valid warrant issued by a
judicial officer. A warrantless search
or seizure may be conducted only if it comes within a specific judicially
recognized exception. (
439 (Dombrowski).) One such exception is that an officer may
stop and detain a motorist on reasonable suspicion that the driver has violated
the law. (People v. Wells (2006) 38 Cal.4th 1078, 1082.) For a detention to be reasonable, the
detaining officer’s suspicions must be supported by “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
v. Souza (1994) 9 Cal.4th 224, 231.)
Another exception, known as the community caretaking exception, applies
when the search or seizure is conducted as an exercise of a law enforcement
officer’s community caretaking function.
(See Dombrowski, supra, at pp.
441, 447-448; People v. Madrid (2008)
168 Cal.App.4th 1050, 1055-1056.)
II. Reasonable suspicion of
criminal activity
Substantial
evidence supports the trial court’s determination that the facts and
circumstances known to Officer Rivera support an objective suspicion that
defendant was driving under the influence of alcohol or a controlled substance,
in violation of the Vehicle Code. The
trial court found that Officer Rivera’s account was credible, and we may not
review that finding. (
314 [credibility of a witness and the truth or falsity on which that
determination depends is the exclusive province of the trier of fact].)
Officer
Rivera was an experienced police officer with 20 years of experience. He observed defendant’s vehicle stopped at
approximately 1:00 a.m. and defendant
conversing with a pedestrian in an area of Pomona
known for narcotics and prostitution.
Rivera followed defendant’s vehicle onto a residential street where cars
were parked on either side. Although
defendant was proceeding slowly at only 25 miles per hour, and there was ample
room on the street between the cars parked on either side of the street,
defendant’s vehicle was veering toward the cars parked along the southern
curbline and came within a foot of striking those cars. Rivera also observed defendant attempting to
make a southbound turn during which the front tire of defendant’s vehicle came
close to striking the southwest curb.
The
facts presented support a reasonable suspicion of criminal activity on the part
of defendant. Defendant’s veering toward
parked cars and coming within a foot of hitting those cars while proceeding at
a low rate of speed on a street with ample room to maneuver his vehicle, his
near miss of the curb, and the fact that these things occurred at 1:00 a.m. in
an area known for narcotics dealing were sufficient to support an objective
suspicion that defendant was driving under the influence of alcohol or
narcotics. Defendant accordingly was not
detained in violation of the Fourth Amendment.
III. Community caretaking
exception
A. General principles
“The
community caretaking exception to the warrant requirement derives from the
expanded role undertaken by the modern police force.†(People
v. Madrid, supra, 168 Cal.App.4th at p. 1055.) “‘The policeman, as a jack-of-all
emergencies, has “complex and multiple tasks to perform in addition to
identifying and apprehending persons committing serious criminal offensesâ€; by
default or design he is also expected to “aid individuals who are in danger of
physical harm,†“assist those who cannot care for themselves,†and “provide
other services on an emergency basis.â€â€™
[Citation.]†(
vehicles. As recognized by the United
States Supreme Court in Dombrowski: “Because of the extensive regulation of motor
vehicles and traffic, and also because of the frequency with which a vehicle
can become disabled or involved in an accident on public highways, the extent
of police-citizen contact involving automobiles will be substantially greater
than police-citizen contact in a home or office. Some such contacts will occur because the
officer may believe the operator has violated a criminal statute, but many more
will not be of that nature. Local police
officers . . . frequently investigate vehicle accidents in which there is no
claim of criminal liability and engage in what, for want of a better term, may
be described as community caretaking functions, totally divorced from the
detection, investigation, or acquisition of evidence relating to the violation
of a criminal statute.†(
police search of an impounded vehicle owned by a defendant who was also a
police officer. (Dombrowski, supra, 413 at p. 435.)
The defendant, who was intoxicated and incoherent at the time of his
arrest, did not have his service revolver on his person. (Id. at
p. 436.) The purpose of the search was
to retrieve the revolver as “standard†police department procedure in order “to
protect the public from the possibility that a revolver would fall into
untrained or perhaps malicious hands.†(
the defendant’s subsequent murder conviction, were recovered from the
defendant’s vehicle. (
warrantless search of the vehicle to be constitutionally valid because the
officers reasonably believed the vehicle contained a gun and was vulnerable to
intrusion by vandals. (
The
California Supreme Court extended the community caretaking exception set forth
in Dombrowski to the search of a home
that appeared to have been burglarized in People
v. Ray (1999) 21 Cal.4th 464. The
court in Ray noted that police
officers regularly perform “‘community caretaking functions’ -- helping
stranded motorists, returning lost children to anxious parents, assisting and
protecting citizens in need.†(
for exigent circumstances from the community caretaking exception and concluded
the “emergency aid†doctrine was a subcategory of the latter exception. (Id. at
p. 471.) The “emergency aid†component
of the community caretaking exception “requires specific, articulable facts
indicating the need for ‘“swift action to prevent imminent danger to life or
serious damage to property . . . .â€
[Citation.]’ [Citation.]†(Id. at
pp. 472-473.) The court in
“circumstances short of a perceived emergency may justify a warrantless entry,
including the protection of property, as ‘where the police reasonably believe
that the premises have recently been or are being burglarized.’ [Citation.]â€
(Id. at p. 473.) The Supreme Court set forth the following
standard for applying the exception:
“The appropriate standard under the community caretaking exception is
one of reasonableness: Given the known
facts, would a prudent and reasonable officer have perceived a need to act in
the proper discharge of his or her community caretaking functions? . . . ‘[I]n determining whether the officer acted
reasonably, due weight must be given not to his unparticularized suspicions or
“hunches,†but to the reasonable inferences which he is entitled to draw from the
facts in the light of his experience; in other words, he must be able to point
to specific and articulable facts from which he concluded that his action was
necessary.’ [Citation.]†(Id. at
pp. 476-477.)
a vehicle stop
Defendant
in the instant case contends the community caretaking exception should not be
applied to permit the stop of a vehicle and the detention of the person
inside. This argument was considered and
rejected by the First Appellate District in People
v. Madrid, a case involving a vehicle stop based on a police officer’s
observation that a passenger entering the vehicle was sweating, walked with an
“unsteady†gait, and appeared to be under the influence of alcohol or drugs, to
have a medical problem, or to have been a victim of an assault. The officer stopped the defendant’s vehicle
“‘to check on [the passenger’s] well being’†and after questioning the driver,
recovered hypodermic needles and heroin.
(People v. Madrid, supra, 168
Cal.App.4th at pp.1053-1054.) The
defendant unsuccessfully moved to suppress the evidence seized by the police
and was subsequently convicted of possession of heroin for sale. In appealing his conviction, the defendant
argued that the community caretaking exception should not apply to warrantless
vehicle stops. The First Appellate
District rejected a categorical exemption for vehicle stops: “We are unwilling to adopt appellant’s position
that the reasonableness of a vehicle stop can never rest on the officer’s
perception that an occupant’s welfare requires this action.†(Id. at
p. 1058.)
The
court in Madrid applied our supreme
court’s reasoning in Ray that “the
community caretaking exception applies when police officers ‘acted reasonably
to protect the safety and security of persons and property’ [citation], that
is, when ‘a prudent and reasonable officer [would] have perceived a need to act
in the proper discharge of his or her community caretaking functions’
[citation].†(People v. Madrid, supra, 168 Cal.App.4th at p. 1058.) We agree with the First Appellate District’s
reasoning in Madrid that the
community caretaking exception may justify a warrantless vehicle stop of a
moving vehicle.
the vehicle stop
After
determining that the community caretaking exception may justify a vehicle stop,
the court in Madrid concluded that a
reasonable officer would not have perceived the need to do so under the
circumstances presented in that case. (
at p. 1058.) The court in
approach taken by the Texas court of criminal appeals in Wright v. State (Tex.Crim.App.1999) 7 S.W.3d 148, in which a deputy
sheriff stopped a vehicle after observing a rear passenger lean out the rear
window and vomit. The
community caretaking exception to the warrant requirement may apply in such
circumstances and set forth a nonexclusive list of factors relevant to whether
the officer acted reasonably in stopping the vehicle to determine whether the
individual needed assistance: “‘(1) the
nature and level of the distress exhibited by the individual; [¶] (2) the
location of the individual; [¶] (3) whether or not the individual was alone and/or
had access to assistance independent of that offered by the officer; and [¶]
(4) to what extent the individual -- if not assisted -- presented a danger to
himself or others.’ [Citation.]†(People
v. Madrid, supra, 168 Cal.App.4th at p. 1059.) The court in Madrid applied these factors and concluded the vehicle stop in the
case before it was not reasonable.
The
court in Madrid first determined that
the stop had been based on the officer’s observations of the passenger, and
that “the balance would weigh more heavily in favor of the officer’s action if
the officer believed the driver was
in great distress; an extremely ill driver is a danger not only to himself but
to other members of the public as well.
[Citation.]†(
the detaining officer “had exhibited a low level of distress.†(Id. at
p. 1060.) The only facts the officer
articulated as grounds for detention were that the passenger walked with an
unsteady gait, at one point used a nearby shopping cart to stop himself from
falling, and appeared to be sweating.
Yet the passenger was able to walk 50 feet to the defendant’s vehicle
without assistance, he was not alone, and neither defendant nor the passenger
indicated they were in need of help. The
court further determined that nothing about the location “sitting in the
passenger seat of a vehicle being lawfully driven through a shopping center
parking lot,†suggested that the passenger or defendant were in need of
additional aid. (Ibid.) Finally, the court in
Madrid determined that the facts did
not support a reasonable conclusion that the passenger presented a danger to
himself or others. The court rejected
the argument that stopping the vehicle was justified in order to avert a
possible drug overdose, because an inference by the officer that the passenger
was suffering from a drug overdose, based solely on the officer’s observations
that the passenger was walking with an unsteady gait and sweating was
“unreasonably speculative.†(
In
concluding that the stop could not reasonably be justified under the community
caretaking exception, the court in Madrid
observed that “‘[R]easonableness “depends ‘on a balance between the public
interest and the individual’s right to personal security free from arbitrary
interference by law officers,’â€
[citation].’ [Citation.] In engaging in this weighing process, courts
must act as vigilant gatekeepers to ensure that the community caretaking
exception does not consume the warrant requirement. [Citation.]â€
(People v. Madrid, supra, 168
Cal.App.4th at p. 1058.)
Applying
the factors used in Madrid to the
instant case, we conclude that detention of defendant’s vehicle was justified
under the community caretaking exception.
Here, unlike Madrid, defendant
was the driver and not the passenger of the vehicle. He was unaccompanied by any passenger who
could assist him. Officer Rivera
observed that defendant’s vehicle was veering toward cars parked on the street
and came within a foot of hitting those cars, despite ample room on the street
for his car to proceed without coming too close to the parked cars. While making a southbound turn, the front
wheel of defendant’s vehicle came close to hitting the southwestern curb. These observations would lead a reasonable
officer to conclude that defendant might be in need of assistance, either
because he was disoriented or because he was having difficulty controlling his
vehicle. Officer Rivera’s detention of
defendant’s vehicle was a reasonable exercise of his community caretaking
function. Defendant was not detained in
violation of the Fourth Amendment.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________________,
J.
CHAVEZ
We concur:
_____________________________, Acting P. J.
ASHMANN-GERST
_____________________________, J.*
FERNS
________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
