Filed 5/23/18 P. v. Martinez CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

ERIC MARTINEZ,

Defendant and Appellant.

F074672

(Fresno Super. Ct. No. F16903587)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Alvin M. Harrell III, Judge.
Jyoti Malik, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 
INTRODUCTION
After a motion to suppress was denied, appellant Eric Martinez (defendant) pled no contest to one count of possessing methamphetamine for sale (Health & Saf. Code § 11378) and admitted a Penal Code section 12022, subdivision (c) firearm enhancement. Defendant appeals contending the trial court erred in denying the motion to suppress. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On June 7, 2016, a complaint was filed against defendant, codefendant Jose Martinez (codefendant), and Maurilio Garcia (Garcia). The complaint charged defendant with possessing methamphetamine for sale, possessing heroin for sale, possession of an assault weapon, and possession of a short-barreled rifle or shotgun. As to the possession of methamphetamine and heroin counts, it was alleged defendant was armed with a firearm.
On July 7, 2016, codefendant filed a motion to suppress evidence pursuant to section 1538.5. The motion asserted that the evidence against codefendant was obtained from a warrantless search of an apartment. Codefendant asserted there were no exigent circumstances, no basis for a protective sweep, and no grounds for the community caretaker exception, thus making the search unreasonable.
The People filed opposition to the motion contending the entry into the apartment was justified under section 844, as officers were executing an arrest warrant for Garcia. Codefendant filed a reply to the People’s opposition, claiming that section 844 did not justify the officers’ entry because officers did not have reasonable grounds to believe Garcia was present in the apartment at the time.
A hearing on the motion to suppress was held on September 13, 2016. At that time, the trial court noted defendant and Garcia were joining in codefendant’s motion to suppress.
Detective Martinez, a detective with the Reedley Police Department, testified at the suppression hearing. On June 5, 2016, he, Sergeant Ortiz, and Officer Kelly were attempting to execute three arrest warrants issued for Garcia.
Department of Motor Vehicles records showed an apartment on East Lincoln in Reedley as Garcia’s residence address. As the officers approached the apartment, Detective Martinez noticed an open window with the curtains closed, the front door “slightly opened” about one foot, and the television on in the apartment.
When they got to the front door, Detective Martinez knocked on the door, while holding the doorknob so as not to cause the door to open further. No one answered in response to his knocking. He continued knocking on the door and announcing it was the police looking for Garcia.
Detective Martinez testified he announced, “ ‘Reedley Police Department, come to the door’ ” as he knocked. He also explained as he knocked that the officers were there because Garcia “had an arrest warrant.” No one came to the door or verbally responded to the knocking, but Martinez heard loud “shuffling noises, movements in there.”
With the open door, television on, and noise of movements, the officers concluded someone was inside the apartment. Detective Martinez knocked on the door for three to five minutes, during which the shuffling noises eventually stopped. According to Martinez, the officers were not sure what was happening inside, whether it was an “interrupted burglary” or Garcia was “lying in wait.” Another tenant had told the officers that two or three people might be living in the apartment.
Detective Martinez knocked on the door and called out again; this time he pushed the door open. The living room area appeared to be in “complete disarray,” and Martinez was not sure if a burglary was in progress or if this was the normal state of the apartment. Martinez walked inside the apartment and stood in the living room, while continuing to announce the police presence.
After waiting in the living room for one to two minutes and receiving no response, Detective Martinez noticed a pistol on the couch; Garcia was prohibited from possessing firearms. At this point, “two guys opened the [bedroom] door, and they come towards me.”
The two who walked out of the bedroom were defendant and codefendant. Sergeant Ortiz took the two out the front door of the apartment and “stood with them.” Defendant and codefendant told the officers Garcia was inside the apartment, so Officer Kelly and Detective Martinez remained inside the apartment. Detective Martinez and Kelly approached the open bedroom door where defendant and codefendant had exited and stepped inside. They could see a weapon that looked like an AK47, but found no one in the room.
Detective Martinez went and notified Sergeant Ortiz to place defendant and codefendant in handcuffs. He then went back inside the apartment, where he made two more announcements calling for Garcia to “come out of his room.” There was no response, so Detective Martinez and Officer Kelly opened the door of the remaining room and found Garcia lying across the bed with earbuds in his ears. Kelly handcuffed Garcia and took him to the patrol vehicle.
Based upon the presence of the pistol and the assault weapon, the officers sought and obtained a search warrant for the premises.
Detective Martinez testified that another officer previously went to the apartment to attempt to arrest Garcia without success. He and the other officers went to the apartment on June 5, 2016, because it was a weekend and Garcia “was supposed to be off” work, and they thought he would be at home. They were at the apartment for the specific purpose of executing the arrest warrant. With the front door open, loud shuffling, and no one answering, it appeared someone was inside the apartment. If not Garcia, there could have been “exigent circumstances,” such as illegal activity occurring.
The trial court found that the apartment was Garcia’s residence and the officers had “reasonable grounds for believing someone was home.” With reasonable grounds to believe someone was home, the apartment being Garcia’s residence, and it being a day when Garcia was not expected to be working, officers had reasonable grounds to believe Garcia was the one inside the apartment officers could hear making noises. When no one responded to the knocking and the announcement the officers were there to execute an arrest warrant for Garcia, the trial court found the officers were justified in entering the apartment and complied with section 844. The trial court denied the motion to suppress.
After denial of the motion to suppress, defendant entered into a plea agreement whereby he agreed to plead no contest to the possession of methamphetamine count and agreed to admit the section 12022, subdivision (c) enhancement appended to that count, in exchange for dismissal of the other counts and enhancements.
He entered his change of plea on October 11, 2016. On November 8, 2016, the trial court imposed sentence, placing defendant on two years formal probation and imposing various fines and fees.
Defendant filed a notice of appeal on November 10, 2016.
DISCUSSION
Defendant contends the trial court erred in denying the motion to suppress because the officers did not comply with section 844 and there were no exigent circumstances justifying entry into the apartment. The People contend the officers complied with section 844 and alternatively, the community caretaking exception applied.
Standard of Review
“The standard of review on a motion to suppress is well established. The appellate court views the record in the light most favorable to the ruling and defers to the trial court’s factual findings, express or implied, when supported by substantial evidence. But in determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, the appellate court exercises its independent judgment. [Citations.] Appellate review is confined to the correctness or incorrectness of the trial court’s ruling, not the reasons for its ruling. [Citation.]” (People v. Superior Court (Chapman) (2012) 204 Cal.App.4th 1004, 1011.)
The Fourth Amendment guarantees the right to be free of unreasonable searches and seizures by law enforcement personnel. A warrantless search or seizure is presumed to be unlawful. (U.S. Const., 4th Amend.; Mincey v. Arizona (1978) 437 U.S. 385, 390.) “The prosecution always has the burden of justifying the search [or seizure] by proving [it] fell within a recognized exception to the warrant requirement. [Citation.]” (People v. Williams (2006) 145 Cal.App.4th 756, 761.)
Section 844
Defendant contends the officers failed to comply with section 844, thereby rendering the subsequent entry and search unlawful. Specifically, he contends the officers did not have reasonable grounds for believing Garcia was inside the apartment before they entered. We disagree.
As a general rule, an officer seeking to enter a residence to make an arrest or perform a search must first identify himself or herself, explain his or her purpose, and demand admittance. (People v. Murphy (2005) 37 Cal.4th 490, 495.) The rule applies to entries through unlocked doors, as well as entries achieved by force. (Id. at p. 496.) Section 844 embodies this rule and provides in relevant part:
“To make an arrest, … a peace officer[] may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing the person to be, after having demanded admittance and explained the purpose for which admittance is desired.”
“[A]n entry effected in violation of the provisions of section 844 … renders any subsequent search and seizure ‘unreasonable’ within the meaning of the Fourth Amendment. [Citations.] As a consequence, an unexcused failure to fulfill the knock and notice requirements delineated by section 844 nullifies the subsequent search and requires exclusion of the evidence obtained. [Citations.]” (Duke v. Superior Court of Los Angeles County (1969) 1 Cal.3d 314, 325; accord, People v. Neer (1986) 177 Cal.App.3d 991, 997 [above holding in Duke unaffected by enactment of art. I, § 28, subd. (d) of the Cal. Const., which provides relevant evidence may be excluded only if exclusion is required by the U.S. Const.].)
Strict compliance with section 844 requires that a police officer, before making a nonconsensual entry into a home, must “have ‘reasonable grounds’ to believe that a suspect is inside a dwelling” (People v. Wader (1993) 5 Cal.4th 610, 632, fn. omitted), and must identify himself, announce his purpose and demand entry (People v. Bittaker (1989) 48 Cal.3d 1046, 1072). However, “ ‘[I]t is recognized that section 844 may be satisfied with substantial compliance.’ [Citation.]” (People v. Miller (1999) 69 Cal.App.4th 190, 201.) “ ‘ “Substantial compliance means ‘ “actual compliance in respect to the substance essential to every reasonable objective of the statute,” as distinguished from “mere technical imperfections of form.” ’ ” [Citation.]” (People v. Hoag (2000) 83 Cal.App.4th 1198, 1208, original italics.)
Defendant relies heavily on People v. Jacobs (1987) 43 Cal.3d 472 (Jacobs) to support his claim section 844 was not satisfied. His reliance is misplaced. In Jacobs, the California Supreme Court held that section 844 requires more than a reasonable belief the person to be arrested owns or leases the dwelling to be entered, there must be a reasonable belief the person is inside at the time of entry. (Id. at pp. 478–479.) In Jacobs, when officers came to the door and knocked, an 11-year-old answered and informed the officers the suspect was not home and would be back in an hour. (Id. at p. 476.) The Jacobs court concluded that under these facts, the officers did not have a reasonable belief the suspect presently was in the dwelling. (Id. at p. 479.)
Here, the uncontroverted testimony was that Sergeant Ortiz, Officer Kelly, and Detective Martinez arrived at the apartment shown in DMV records to be Garcia’s residence address in order to arrest Garcia on three outstanding warrants. It was the weekend, when the officers anticipated Garcia would be at home, instead of at work. Upon arrival, a window was open, the front door was open, the television was turned on, and sounds of movement came from inside the apartment. This certainly provides reasonable grounds for the officers to believe Garcia, the person to be arrested, was inside the apartment, as required by section 844.
The uncontroverted testimony also established that Detective Martinez knocked on the open front door for several minutes while announcing it was police officers looking to arrest Garcia who were seeking entry to the apartment. Knocking for several minutes while identifying themselves as police officers there to arrest Garcia satisfies the requirement of section 844 that the officers identify themselves, announce their purpose, and demand entry.
Unlike in Jacobs, despite obvious signs that someone was in the apartment, no one responded to the knocking or to the announcement they were officers seeking to execute an arrest warrant. An obvious and reasonable inference from the lack of response is that Garcia was inside the apartment attempting to avoid service of the arrest warrant. Consequently, the officers had reasonable grounds to believe Garcia was inside the apartment at the time they entered, having previously satisfied the requirement to knock and announce their presence and purpose.
The trial court did not err in denying the motion to suppress because the officers satisfied the requirements of section 844.
Community Caretaking Exception
In addition to his claim the officers’ actions did not satisfy section 844, defendant also contends that no other circumstances existed that justified the officers entry into the apartment. He is incorrect.
One additional Fourth Amendment concept is relevant here. “In the average day, police officers perform a broad range of duties, from typical law enforcement activities – investigating crimes, pursuing suspected felons, issuing traffic citations – to ‘community caretaking functions’ – helping stranded motorists, returning lost children to anxious parents, assisting and protecting citizens in need – ‘totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’ [Citation.]” (People v. Ray (1999) 21 Cal.4th 464, 467 (Ray).) Ray addressed the issue of whether police officers were engaging in their community caretaking functions when they entered the defendant’s residence because it appeared a burglary was in progress. While in the residence, the officers observed large amounts of cocaine and cash. Based on these observations, a search warrant was obtained. The evidence seized resulted in the defendant’s conviction of various crimes.
The defendant in Ray argued the evidence should have been suppressed because it was discovered during a warrantless search. (Ray, supra, 21 Cal.4th at p. 469.) The issue was whether the officers were acting pursuant to their community caretaking function during the initial entry. The Supreme Court explained the parameters of the community caretaking exception to the Fourth Amendment, and primarily focused on the applicability of the exception to warrantless entry into residences. (Id. at pp. 470–471.)
First, the Supreme Court recognized the concept was fact dependent. “Nonetheless, ‘[w]hile categorizing these different activities under the heading of “community caretaking functions” may be useful in some respects, it does not follow that all searches resulting from such activities should be judged by the same standard. Community caretaking activities are varied and are performed for different reasons.’ [Citation.] Each variant must be assessed according to its own rationale on a case-by-case basis. ‘Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place.’ [Citation.]” (Ray, supra, 21 Cal.4th at p. 472.)
Second, the concept encompasses the protection of both persons and property. “Under the community caretaking exception, 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.] ‘Although the case law attaches slightly greater weight to the protection of persons from harm than to the protection of property from theft, many of the cases involving possible burglaries or breakings and enterings stress the dual community caretaking purpose of protecting both. [Citations.]’ [Citation.]” (Ray, supra, 21 Cal.4th at p. 473.)
The Supreme Court also explained the concept was not a Pandora’s Box that could be used to justify any warrantless search. “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? Which is not to say that every open door – even in an urban environment – will justify a warrantless entry to conduct further inquiry. Rather, as in other contexts, ‘in 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.]” (Ray, supra, 21 Cal.4th at pp. 476–477.) However, “[w]hen officers act in their properly circumscribed caretaking capacity, we will not penalize the People by suppressing evidence of crime they discover in the process.” (Id. at p. 479.)
Here, the officers were presented with an open front door, the sounds of movement inside, a television turned on, and no one answering repeated knocks after several minutes. Two reasonable inferences to be drawn from these facts are that (1) someone is inside and in distress, thus unable to respond; or (2) there is a burglary in progress. Either of these reasonable inferences justifies the officers’ entry into the apartment under their community caretaking role. (Ray, supra, 21 Cal.4th at p. 473.)
DISPOSITION
The judgment and the trial court’s denial of the motion to suppress are affirmed.