THE PEOPLE v. JORGE LUIS LOPEZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Defendant Jorge Luis Lopez appeals from a judgment of conviction entered after he pled no contest to possession of an assault weapon (Pen.Code,1 § 12280, subd. (b)).²  The plea followed the denial of his section 995 motion to dismiss, which was based on the claim that his section 1538.5 suppression motion made at the preliminary hearing should have been granted.   The trial court suspended imposition of sentence and placed defendant on formal probation for three years, conditioned on service of 364 days in Los Angeles County Jail. Defendant appeals, challenging the denial of his suppression motion and the calculation of his presentence custody credits.   We agree that defendant should have been given additional custody credits.   In all other aspects, we affirm.

FACTS3

On the evening of December 3, 2009, at about 10:30 p.m., Los Angeles Police Officer Jason Schwab was on duty in Pacoima with his canine partner.   They were in the area helping in a search for a grand theft auto suspect who was on foot.

Officer Schwab noticed defendant, who “was standing in the street and he appeared like he was trying to flag either us down or the air ship down.”   When Officer Schwab got closer to defendant, he realized that he was making a rude gesture toward the helicopter and shouting expletives.   Officer Schwab told him to go back into his house and explained that the police were conducting a search.   Defendant, who appeared to have been drinking, continued to curse and retreated towards his residence on Judd Street.   The property to which he went was surrounded by a five to six-foot-high wrought iron fence with a gate, but the gate was open.

When defendant went to shut the gate, Officer Schwab “was explaining to him that he needed to leave the gate open because we were going to conduct a K9 search.   I was trying to explain to him you need to go inside and shut your door, and if you have any dogs, take them inside.”   Defendant shut the rolling gate.

Defendant continued yelling obscenities and telling Officer Schwab that he was not coming into his yard.   When it looked like he was getting ready to lock the gate, Officer Schwab once again told him he was not going to be able to lock the gate and the gate needed to be kept open to allow the search.   Defendant started to back away from the gate and Officer Schwab felt “it was implied consent that he was going to go back into his residence and let me do my search.”   Officer Schwab pulled the gate open and defendant took a swing at him with his right hand.   He was restrained and taken into custody.

Officer Schwab went back to Judd Street to conduct a systematic search of the area.   There were three or four houses from the beginning of the search back to defendant's house.   When he reached the house directly south of defendant's house, the resident informed Officer Schwab that defendant lived there with his parents, whom he believed were home at the time.

When the search reached the yard of defendant's home, the officers entered the now-open gate and a German Shepherd came from the rear of the yard, interfering with the search.   When Officer Schwab was about ten yards away from the front door, he realized it was open.   He called out, trying to make contact with the residents to secure the dog.   No answer was received and as Officer Schwab approached the front door, an assault rifle was visible through the doorway.

Officer Schwab continued to call to the residents and received no response.   He entered the house to ensure the grand theft auto suspect wasn't inside.   The house was searched and no one was found inside.   He retrieved the assault rifle and it was booked into evidence.

DISCUSSION

The Suppression Motion

In denying defendant's suppression motion, the trial court explained:  “So there are plenty of cases out there, plenty of authority for the proposition that police officers may go into the quasi-public parts of private property such as driveways and walkways up to a front door.   But this case is a little different.   The defendant's property has a gate around it.   The defendant closed the gate and said I don't want you coming onto my property.   So I think the issue, then, is were the circumstances exigent enough for the officer to ignore that and conduct his search for the [grand theft auto] suspect [?]  Clearly we didn't have an emergency situation involving life or death for the officer to go onto the property, but we did have a felony suspect in the area.

“The officer said his information was the suspect was three houses away with five minutes before he made contact with [defendant].   So although it's not a dire circumstance, I think on the balance the exigency was sufficient to allow the officer to enter into what would otherwise be considered as quasi-public areas of private property.   The officer did open the gate, and whether that is a trespass or not the cases have held that is not controlling, and walked into a drive, and then stood on the front step.   And I think he did have a right to be on that step when he looked inside the open front door and saw the assault rifle.   So I'm going to deny the motion to suppress on that basis.”

In reviewing a trial court's ruling on a suppression motion, we must uphold any express or implied factual findings made by the trial court if they are supported by substantial evidence.  (People v. Hughes (2002) 27 Cal.4th 287, 327;  People v. Williams (1988) 45 Cal.3d 1268, 1301.)   We determine independently, as a matter of law, the applicable rule of law for assessing whether the challenged police action violated the Fourth Amendment protection against unreasonable searches and seizures.  (Hughes, supra, at p. 327;  Williams, supra, at p. 1301.)   Finally, we independently determine whether, applying the rule of law to the facts in the instant case, the challenged police conduct, as a matter of law, constituted an unreasonable search or seizure in violation of the Fourth Amendment.  (Williams, supra, at p. 1301.)

The trial court relied on the existence of exigent circumstances to justify the search.   Exigent circumstances include “ ‘ “emergency situation[s] requiring swift action to prevent imminent danger 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. Wharton (1991) 53 Cal.3d 522, 577, quoting People v. Lucero (1988) 44 Cal.3d 1006, 1017.)   If the facts known to the officers would warrant a person of reasonable caution to believe exigent circumstances existed and an immediate search or seizure was appropriate, the search or seizure will be deemed reasonable.  (People v. McDowell (1988) 46 Cal.3d 551, 563;  People v. Duncan (1986) 42 Cal.3d 91, 97–98.)

While a warrantless search, even based upon exigent circumstances, does result in an intrusion, the facts in the instant case clearly warranted the intrusion.   There was a systematic search late at night for a grand theft auto suspect.   After Officer Schwab had his confrontation with defendant at the gate of his residence and defendant was taken into custody, he resumed his systematic search before returning to the residence where the confrontation and arrest of defendant had occurred.

The search of the residence was not incident to the arrest of defendant.   It was certainly reasonable for the officers to return to defendant's residence as they continued their search.   The grand theft auto suspect had not been apprehended, and he had been seen within three houses of defendant's residence five minutes prior to the time that the search was commenced.   That the suspect was still at large in the area created exigent circumstances that justified the action of the officers.   In addition, in light of the open front door, it was not unreasonable for the officers to have searched the premises to check on the well being of defendant's parents.   Since the officers had a legitimate right to approach the front door, the observation and seizure of the assault rifle was justified.  (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 634.)

The police did not need a dire threat of imminent death to engage in the intrusion on defendant's property.   The level of the emergency matched the level of the intrusion.  (People v. Mitchell (1990) 222 Cal.App.3d 1306, 1312–1313.)   It was reasonable for the police officers to enter the gated yard and approach the front door to inquire of the residents if they had seen the fleeing suspect or, in the alternative, to check on the well-being of the residents in close proximity to the area where the suspect had been seen fleeing.

The cases cited by defendant are inapposite.  People v. Dickson (1983) 144 Cal.App.3d 1046 involved the police entry into a home based on the smell of a chemical odor and had nothing to do with a systematic search of a neighborhood in an effort to capture a fleeing suspect.  People v. Manderscheid (2002) 99 Cal.App.4th 355 is not helpful.   The case involved information that a suspect was at a particular location and not a search of a neighborhood.

Custody Credits

Defendant contends, and the People agree, that he is entitled to one additional day of presentence custody credit.   Defendant was arrested and taken into custody on December 3, 2009.   He was released on bond on December 7, 2009.   He was given credit for only four days of time served and not five days.   Presentence custody credit is governed by section 4019, subdivision (a)(1), which provides:  “When a prisoner is confined in or committed to a county jail, industrial farm, or road camp, or any city jail, industrial farm, or road camp, including all days of custody from the date of arrest to the date on which the serving of the sentence commences, under a judgment of imprisonment, or a fine and imprisonment until the fine is paid in a criminal action or proceeding.”   The credit includes both the day of arrest and the day of sentencing or release.  (See People v. Downey (2000) 82 Cal.App.4th 899, 920.)   Defendant thus must be credited with five days time-served plus the applicable conduct credit.

DISPOSITION

The judgment is modified to provide defendant with one additional day of predisposition custody credit and one additional day of good time/work time credit.   In all other aspects, the judgment is affirmed.

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code..  FN1. All further statutory references are to the Penal Code.

FN2. In exchange for his plea, one count of resisting a police officer (§ 148, subd. (a)(1)) was dropped..  FN2. In exchange for his plea, one count of resisting a police officer (§ 148, subd. (a)(1)) was dropped.

FN3. The facts are derived from the preliminary hearing transcript and defendant's motion to suppress hearing..  FN3. The facts are derived from the preliminary hearing transcript and defendant's motion to suppress hearing.

PERLUSS, P. J. WOODS, J.