Filed 5/30/18 P. v. Lopez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

JESUS ALEJANDRO LOPEZ,

Defendant and Appellant.

F074965

(Super. Ct. No. BF165325A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey and John S. Somers, Judges.†
Lauren E. Dodge, 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, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
After his motion to suppress was denied, appellant Jesus Alejandro Lopez pled no contest to one felony count of violating Vehicle Code section 10851. He challenges the trial court’s denial of his motion to suppress. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On October 14, 2016, an information was filed charging Lopez in count 1 with taking or driving a vehicle without the owner’s consent (Veh. Code § 10851, subd. (a)); count 2, receiving a stolen vehicle (Pen. Code § 496d, subd. (a)); count 3, misdemeanor larceny (§ 487, subd. (c)); counts 4 and 5, receiving stolen property (§ 496, subd. (a)); count 6, misdemeanor possession of burglary tools (§ 466); and count 7, misdemeanor driving a motor vehicle with driving privileges suspended or revoked (Veh. Code § 14601.1, subd. (a)). As to counts 1 and 2, it was alleged Lopez had suffered a prior strike within the meaning of section 667, subdivisions (c) through (j) and had served a prior prison term within the meaning of section 667.5, subdivision (b).
Lopez filed a motion to suppress evidence pursuant to section 1538.5 on October 28, 2016. Lopez asserted the evidence against him had been obtained through an unlawful search and seizure conducted in violation of the Fourth Amendment. The People filed written opposition to the motion on November 16, 2016. The People challenged Lopez’s standing to assert Fourth Amendment rights in the premises, maintaining the entry into the house was done with consent, and the items seized were in plain view.
The trial court held a hearing on the motion to suppress on November 23, 2016. The trial court first addressed the challenge to standing. Lopez called Nicolette Gibson to testify on his behalf regarding standing.
Gibson testified she was living in a house in Bakersfield on August 23, 2016, at the request of her friend, a real estate agent. The house was vacant and in escrow. Gibson was asked to stay at the house while it was in escrow to “take care of the property and make sure nothing happened to it.” Gibson testified that as of August 23, 2016, she had been at the house for “about a month and a half.”
According to Gibson, Lopez also was living at the house because he was her boyfriend. He had been living with her at the house for about two weeks as of August 23, 2016. Gibson testified Lopez had a key to the house, kept personal belongings in the house, and had a vehicle stored at the house. Gibson admitted, though, there was no furniture in the house because she “didn’t want to move stuff when we were done.”
At the conclusion of this portion of Gibson’s testimony, the trial court concluded Lopez had standing. The People then proceeded to present their evidence.
The People also called Gibson to testify. On direct examination by the People, Gibson stated there was an air mattress in the house, but no other furniture. She acknowledged she had no written agreement establishing she lived in the house, and Lopez did not have any rental agreement with her.
Gibson admitted when officers came to the house, she did not answer the front door. She also admitted she did not respond to “a knock-and-announce made by officers.”
Officer Christopher Bagby was called to testify. Bagby had responded to the house on two occasions between mid-July and August 23, 2016. On the first occasion, an alarm at the house had been tripped by a real estate agent showing the house. Bagby spoke with the agent at that time. Bagby responded to the house a second time when there was a report of “somebody trespassing in the vacant house in that area, which is extremely common.” On both of these occasions, “nobody was living there” and no furniture or other property was in the house.
Bagby went to the house a third time on August 23, 2016, because of a report of a stolen vehicle. The stolen vehicle was in the driveway. It was about 11:00 a.m. and Bagby was in uniform and driving a patrol vehicle. There was a “For Sale” sign “broken in half” and lying behind a banana tree at the side of the house.
Bagby went to the front door of the house and knocked; there was no response. After knocking on the front door, Bagby noticed the side gate was open. The side gate was “all the way open” when he arrived at the house.
Bagby went around to the back of the house and found the back door standing open. He knocked on the back door, announced he was a police officer, and asked anyone inside to come to the door. In looking through the open back door, Bagby could not see any furniture and the house appeared vacant. Bagby could hear “movement inside the house and no one answering.”
When there was no response to the knock-and-announce, Bagby “began clearing the residence based on [the] typical protocol for what [police] believe to be a trespassing or a recent trespassing in the house.” During this process, Gibson was located in the house. Gibson stated she was “watching the house for someone.” Bagby testified the house was being cleared because it was believed at the time the house “was being trespassed” and because of the stolen vehicle found in the driveway.
After Gibson told Bagby she was watching the house, she was asked if anyone else was in the house. She said “yes” and Lopez then was located in the bathroom. Gibson subsequently was asked if officers could “‘check anywhere else’” and Gibson “said yes.” The entire house and the outbuilding on the property were checked.
Gibson and Lopez were detained while “trying to sort out whether they were allowed to be there or not as well as the other investigation” into the stolen vehicle. Bagby detained both Gibson and Lopez to verify whether they had permission to be on the property, because he thought it “likely” there was a trespass, “which is a violation of California Penal Code.” Bagby did not arrest anyone.
On cross-examination, Bagby testified the California Highway Patrol reported the stolen vehicle. Bagby had spotted it and confirmed the vehicle was stolen by running a check on the license plate number. He initially arrived at the house to conduct an investigation into the stolen vehicle. On August 23, 2016, the yard at the house did not appear well maintained. Some of the grass was dead, there was dirt on the grass area, and bushes were not trimmed.
Bagby was accompanied by other officers. After they entered the house, they saw “stolen property” from the vehicle, including tools. The stolen items were seized as evidence.
At the conclusion of the evidentiary portion of the hearing, counsel argued Bagby “invaded the curtilage of the backyard” by passing through the open gate without consent or a warrant. Counsel also argued that Bagby had only a “hunch that perhaps there were squatters inside the house or it was unoccupied or vacant.” Counsel stated any consent given by Gibson “was not [given] voluntarily and it was too late.” Counsel argued there was a clear Fourth Amendment violation and all evidence needed to be suppressed. The People did not offer concluding argument.
The trial court denied the motion to suppress, stating:
“This is reality. The officer’s there, there’s a gate open. He goes to check it out, he sees a back door open. Now, keep in mind he knocks three or four times on the front door and there was no response. So now he’s at a house he knows in the past has been vacant and still appears to be vacant. The gate is open and there’s a stolen car in the driveway. He sees the back door open, calls out and nobody responds.
“Even though he’s calling out and he hears people in the house, what is he supposed to think? That there’s a legitimate person staying there? That person would have answered the front door. He’s going to think there’s a trespasser or a burglar or whatever and he’s going to go in to check it out. That’s reality. That’s what he did. He acted in good faith to investigate a potential crime, so there’s no violation of anybody’s Fourth Amendment rights.”
After the denial of his motion to suppress, Lopez entered into a plea agreement. Lopez agreed to plead to count 1, a violation of Vehicle Code 10851, in exchange for a two year “split” sentence, with one year of local custody and one year of mandatory supervision.
On December 2, 2016, the trial court accepted Lopez’s plea of no contest in accordance with the plea agreement. The People moved to dismiss the remaining allegations and charges, which the trial court granted.
At the January 5, 2017, sentencing hearing, the trial court noted the probation report recommended a sentence “consistent with the plea entered.” Counsel stipulated to the fines and fees recommended in the probation report. The trial court imposed sentence in accordance with the plea agreement and the probation department recommendation. Lopez was sentenced to the midterm of two years, with the first year to be served in local custody and the balance of the sentence on mandatory supervision, subject to specified terms and conditions.
Lopez filed a timely notice of appeal on January 6, 2017, challenging the denial of his suppression motion.
DISCUSSION
Lopez contends the warrantless entry into the back yard and interior of the home violated his Fourth Amendment rights. Consequently, he contends the trial court erred prejudicially in denying his motion.
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.” (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.” (People v. Williams (2006) 145 Cal.App.4th 756, 761.)
Community Caretaking Exception
The Fourth Amendment concept of community caretaking, as an exception to the warrant requirement, 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.’” (People v. Ray (1999) 21 Cal.4th 464, 467.)
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. (People v. 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.’” (People v. 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.]” (People v. 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.’” (People v. 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, Bagby and the officers were presented with a stolen vehicle in the driveway of an apparently vacant house. Bagby had been to the house twice previously within the weeks before August 23, 2016, and spoken with a real estate agent, and the house was vacant on both prior occasions. There had been reports of people trespassing in vacant houses in the area. The outward appearance of the house indicated it still was vacant on August 23, 2016. With no one responding to the knocking on the front door, officers reasonably could believe the house continued to be vacant.
The entry through the open side gate is reasonably justified under the circumstances. The presence of a stolen vehicle in the driveway and an open side gate gives rise to objectively reasonable inferences that (1) someone is trespassing on the property, (2) the person who stole the vehicle is at the property, (3) the property is being used as a site to store stolen property, and (3) anyone on the property is not lawfully present and may be attempting to vandalize the property. (People v. Medina (1986) 265 Cal.App.2d 703, 708.) Any of these objectively reasonable inferences would cause a prudent officer to enter through the open side gate under the officer’s community caretaking role. (People v. Ray, supra, 21 Cal.4th at p. 473.)
When officers see an open back door of a house, hear movement inside the house, knock on the back door, announce their presence as officers and ask anyone inside to come to the door, and enter the house after receiving no response, they are justified in doing so under their community caretaking role. At that point, it is clear someone is inside a house the officers believe should be vacant, and criminal activity may be in progress. Under the community caretaking exception to the warrant requirement, the officers’ warrantless entry into the home legally was justified. (People v. Ray, supra, 21 Cal.4th at p. 473.)
Because warrantless entry through the open side gate and into the home was justified under the community caretaking exception, there is no basis for invalidating any subsequent consent given by Gibson. (See People v. Lujano (2014) 229 Cal.App.4th 175, 188.)
Good Faith Exception
California courts may exclude evidence obtained in violation of the Fourth Amendment only if that exclusion is mandated by the federal Constitution. (Cal. Const., art. I, § 28; People v. Robinson (2010) 47 Cal.4th 1104, 1119.) Exclusion applies only where it results in “‘“appreciable deterrence”’” to law enforcement conduct. (Herring v. United States (2009) 555 U.S. 135, 141.) As the United States Supreme Court stated in Herring:
“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” (Herring v. United States, supra, 555 U.S. at p. 144.)
Where official action is pursued in good faith, but there is later found to be a defect in a warrant or other basis for a search, the evidence seized as a result of the search is not excluded. (See, e.g., United States v. Leon (1984) 468 U.S. 897, 919–920; People v. Downing (1995) 33 Cal.App.4th 1641, 1656–1657; People v. Fields (1981) 119 Cal.App.3d 386, 390.)
It was objectively reasonable for the officers to view the house as vacant, with trespassers, vandals, or others engaged in illegal activity possibly present at the house or using the house to store stolen property. No one answered the knocking at the front door and no one responded to the knock-and-announce at the back door, even though movement could be heard inside the house. Because a prudent, reasonable officer would believe entry into the home was justified, excluding the evidence would serve no appreciable deterrent purpose under these circumstances. (Herring v. United States, supra, 555 U.S. at p. 141.)
The need for privacy in the home must be balanced with the “need for effective law enforcement.” (People v. Camacho (2000) 23 Cal.4th 824, 831.) Officers had no basis for believing anyone on the property or inside the house had a legitimate right to be on the property or to any Fourth Amendment expectation of privacy, and they acted on that reasonable belief in order to protect property and halt potential criminal activity.
DISPOSITION
The judgment and the trial court’s denial of the motion to suppress are affirmed.