In re Victor D.

Filed 3/6/07 In re Victor D. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 orders of the Superior Court of Los Angeles County. Robert S. Ambrose, Juvenile Court Referee. Affirmed.

Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

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Victor D. (appellant) appeals from the orders continuing him as a ward of the juvenile court (Welf. & Inst. Code,  602) after finding that he unlawfully possessed a firearm (Pen. Code, 12101, subd. (a)(1)) and placing him in a six-month camp-community program. Before the adjudication, the juvenile court denied appellants motion to suppress evidence. (Welf. & Inst. Code,  700.1.)

Appellant contends that the juvenile court should have granted his motion to suppress evidence as his home was searched in the absence of a search warrant or exigent circumstances. He also claims that the search cannot be justified as a probation search. At the time of the search, the officers were aware that appellant was on probation for grand theft of an automobile, but did not know specific terms of his probation or whether he had a search condition of probation.

We find exigency justifies the officers intrusion into appellants residence and that there was consent to the search. Consequently, we affirm the orders under review.

FACTS

I. The Evidence Adduced at the Combined Adjudication and Motion to Suppress

At approximately 1:00 a.m. on November 5, 2005, South Gate Police Officer Gary Ricco was on patrol in an unmarked police car in a gang area near San Luis Avenue and Firestone Boulevard in the City of South Gate. Officer Ricco, who was alone, saw appellant standing in front of a San Luis Avenue residence. Appellant was with two other youths, A.C. and C.D. A week earlier, the officer had responded to a call of shots having been fired at the same location. South Gate had a curfew for persons under 18 years of age. The officer knew that A.C. and C.D. were members of the local gang, Los Paranderos, and were minors. Based on appellants physical appearance, the officer believed that appellant was also a minor.

Officer Ricco said that his concern was that the youths were in violation of the local curfew ordinance and that there were gang members congregating at an unusual hour of the night. Further, their presence at a location where shots had been fired just the week before made him believe that there was a crime occurring or about to occur.

Officer Ricco decided to investigate and stopped his police car. Appellant immediately turned his back toward the police car and grabbed the area of his front waistband. The officer said that as [appellant] grasped [the object], it appeared that he was grasping a firearm, which was concealed under his [long, untucked] shirt in his waistband. Officer Ricco feared for his personal safety and ordered appellant, A.C., and D.C. to stop. The other two minors complied but appellant ignored the order and ran into the residence. A.C. and D.C. complied with Officer Ricos command to lie on the ground.

Officer Ricco took cover behind a vehicle and radioed for police assistance.

In about 30 seconds, three other South Gate police officers arrived. A.C. and D.C. were moved away from the residence. The two youths informed one of the arriving officers, Officer Rivera, that appellant was the youth who ran from Officer Ricco and that he lived in the residence. Sergeant Mario Saldivar telephoned the residence and spoke with appellants mother. She verified that appellant was at home, and then she came out of the house.

The mother spoke to Sergeant Saldivar while Officer Ricco listened to the conversation. She said that a male toddler, appellant, and two teenage daughters were inside the residence and that she believed there were no firearms inside. The mother had appellant come out of the house. Appellant told the police officers that he was on probation for grand theft of a vehicle, and Officer Ricco put him inside a police car. Sergeant Saldivar asked the mother whether they could check the inside of the residence as appellant had run in with a firearm. She said, Yes.

Officer Ricco testified that during their conversation Sergeant Saldivar and the mother were speaking Spanish, so he did not know whether the sergeant additionally asked the mother whether the officers could enter the residence by reason of appellants probation.

Officer Ricco personally concluded that the officers were justified in entering the residence because appellant was on probation. Sergeant Saldivar, Officer Ricco, and Officer Arana went inside. They found a fully-loaded .32-caliber blue steel revolver inside a broken and partially-open drawer in the familys entertainment center in the living room. Sergeant Saldivar testified that as the officers stood in the living room, the revolver was in plain view and visible inside the drawer in the entertainment center.

Sergeant Saldivar testified that he had asked appellants mother for permission to search. He had three reasons for the request: (1) appellant was on probation, (2) appellant may have run into the residence with a firearm, and the officers wanted to recover the firearm to protect the safety of the other children in the residence, and (3) the officers wanted to ensure that it was appellant who ran inside the residence and not some other person of whom appellants mother was unaware. The mother was very cooperative. She verified that appellant was on probation and consented to the search. Before the search, the mother also said that as far as she was aware, before the officers arrived, appellant was asleep inside the residence.

Officer Ricco agreed that he was unaware of appellants specific terms of probation. Officer Arana was the officer who was fluent in Spanish. However, Sergeant Saldivar spoke Spanish without being fluent, and Officer Ricco understood most of what the mother had said to the Sergeant.

In defense, appellants mother testified that she received an early morning telephone call from the police. An officer asked her to come outside because her nephew Edgar was outside and some unknown person had entered her residence and the officer did not know who it was. When she went outside, she had her toddler in her arms. The officer told her that they had discovered that the person who had entered her residence was appellant. The officer asked her to have appellant come out because appellant had entered the residence with a firearm. She was surprised as she knew there were no firearms in the residence. She asked appellant to come outside, and he did. Appellant was unarmed.

When appellant came outside, the officer asked why appellant had run into the residence. Appellant replied that it was late, he was on probation, and he was frightened. At that point, the officers asked for the mothers agreement to enter the residence. She told them, Why are you going to go inside if I know there are no firearms? The officer replied, Well, hes on probation and I can go inside. She said something like, Well, if you can go inside, then go in. She claimed that she never gave the officers permission to enter.

For a while, the officers had her wait outside the residence with her toddler. Then she was permitted inside shortly after the commencement of a search. The officers conducted an hour-long search. She saw them find the revolver in the entertainment center. She had been asleep and was unaware that appellant had been outside violating the curfew condition of his probation.

II. The Grounds for Suppression and the Trial Courts Ruling

At the hearing, defense counsel argued that the officers had no exigent circumstances justifying a search without a warrant and had no consent. Further, without knowledge of appellants probationary terms, the officers bare knowledge that appellant was on probation was insufficient to justify a search of the residence for the revolver.

The People argued that exigent circumstances justified the entry into the residence and the search because until the officers entered the residence, they were not certain of the identity of the person who had entered the residence and whether the children inside the residence were in danger. Also, the officers were entitled to secure the residence before permitting the mother and her toddler inside. After the mother indicated that she had no firearm and that no handgun should be inside the residence, the officers had an obligation to seize the handgun for the familys safety. The officers had consent for the entry and search, and the search was valid pursuant to appellants probationary terms.

The juvenile court denied the motion to suppress evidence. It commented that the existence of a firearm in appellants residence without the mothers knowledge was sufficiently exigent to permit an immediate search of the residence to obtain the firearm. It also found that Officer Ricco having observed appellants actions before he entered the residence had a reasonable belief that appellant was concealing a firearm.

The trial court later observed that appellant, age 16 at the time of the offense, had a search and seizure condition attached to the conditions of the home on probation order entered on October 20, 2005. That condition required him to [s]ubmit [his] person, residence or property under his/her control to search and seizure at any time of the day or night by any law enforcement officer, with or without a warrant.

DISCUSSION

Defendant contends that there was no valid justification for searching appellants residence. We disagree.

The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts 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.)

The People concede that the search cannot be justified as a valid probationary search as the California Supreme Court recently rendered a decision in In re Jaime P. (2006) 40 Cal.4th 128, 139, which so held. At the hearing, the parties agreed that there was no testimony that the officers had a search warrant, and the People urged exigent circumstances. We conclude that exigent circumstances justify the officers search for the firearm.

A long-recognized exception to the warrant requirement exists when exigent circumstances make necessary the conduct of a warrantless search. . . .  [E]xigent circumstances means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. There 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. (People v. Lucero [(1998)] 44 Cal.3d [1006,] 1017, quoting People v. Ramey (1976) 16 Cal.3d 263, 276; People v. Duncan (1986) 42 Cal.3d 91, 97-98 [As a general rule, the reasonableness of an officers conduct is dependent upon the existence of facts available to him at the moment of the search or seizure which would warrant a man of reasonable caution in the belief that the action taken was appropriate], quoting People v. Block (1971) 6 Cal.3d 239, 244.) (People v. Panah (2005) 35 Cal.4th 395, 465.)

Probable cause exists when the facts known to the arresting officer would persuade someone of reasonable caution that the person to be arrested has committed a crime. (Illinois v. Gates (1983) 462 U.S. 213, 232; People v. Thompson (2006) 38 Cal.4th 811, 818; People v. Ray (1999) 21 Cal.4th 464, 471 [probable cause necessary for exigent entry].)

Officer Ricco had probable cause to believe that appellant had violated the law by unlawfully possessing a firearm. Furthermore, the situation was fluid, and the officers were concerned with the familys and their own safety until the firearm was recovered. The officers had no way of knowing whether appellant had left a gang cohort inside who might attempt to shoot at the officers with a firearm, the true identity of the youth who ran into the residence, or whether the firearm left unattended within the residence endangered the minors inside the residence. The mother indicated that prior to the officers telephone call, she had been asleep and that she had believed that her son was also asleep inside the residence. The mother indicated that she possessed no firearm and that she was the only adult living at the residence. In the circumstances, the officers reasonably could have believed that they had an emergency on their hands which presented an imminent threat to their safety and appellants minor family members. (People v.Ramey (1976) 16 Cal.3d 263, 276; cf. People v. Ngaue (1992) 8 Cal.App.4th 896, 904 [until the gun was retrieved, the deputies were at risk]; People v. Spain (1984) 154 Cal.App.3d 845, 850.)

Defendant argues that once appellant emerged from the residence, the emergency was over. However, as far as the officers knew, the mothers two female teenagers remained inside the residence along with other persons who might be armed and dangerous. The officers were justified in immediately searching for and obtaining the firearm, rather than securing the residence and waiting for a search warrant so as to secure the weapon.

Furthermore, substantial evidence supports the juvenile courts implied conclusion that the mother consented to a search. [T]he question whether a consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227.) The officers testified that the mother gave her unconditional consent to the officers so that they could secure the firearm from the residence. Sergeant Saldivar also said that the mother was fully cooperative with them during the search. Such evidence is sufficient to support the trial courts implied finding that the mother consented to the search. (People v. James (1977) 19 Cal.3d 99, 118.)

DISPOSITION

The orders under review are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________, J.

DOI TODD

We concur:

______________________, P. J.

BOREN

______________________, J.

ASHMANN-GERST

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