Super. Ct. No.09 F 0003289
The opinion of the court was delivered by: Nicholson ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury acquitted defendant Brian Keith Hamilton of using threats to prevent executive officers from performing their duties; it convicted him of the felonies of exhibiting a firearm in the presence of peace officers in a threatening manner and making criminal threats, and the misdemeanor of exhibiting a firearm in public in a threatening manner. At sentencing, the trial court declared the former two offenses to be misdemeanors, suspended imposition of sentence, and placed defendant on informal probation for three years (with concurrent 180-day jail terms commencing in April 2010 as a condition).
On appeal, defendant contends the trial court should have granted his motion to suppress (premised on a claim of unlawful entry during execution of an inspection warrant), the evidence is insufficient to support the verdicts, and the instructions on forcible entry and consent were erroneous. We deem defendant to have also raised the issue of the proper calculation of conduct credits. We affirm the judgment as modified.
A A county code enforcement officer had responded to at least six complaints from neighbors about the condition of the property on which defendant lived with his father and brother. In the course of these contacts, defendant had confronted the enforcement officer with a gun.
The superior court issued an inspection warrant*fn1 for the property in April 2009 in anticipation of a nuisance abatement hearing. The inspection warrant directed the advisement of the occupants at the time of the inspection that a refusal to permit entry was a misdemeanor, and authorized only nonforcible entry.*fn2 Two to three days before he intended to execute it, the enforcement officer posted a copy of the inspection warrant on the gate to the property.
The enforcement officer asked a deputy to accompany him in executing the inspection warrant. This was his custom, but he had particular concerns in light of defendant's past behavior. The deputy lived in defendant's neighborhood, was familiar with him, and had also received complaints from neighbors about conditions on defendant's property. An animal control officer also came along in the event loose dogs on the property were hostile. A backup deputy was assigned to be present at the inspection as well.
The property consisted of a single-story residence on three to five acres located in the rural Shingletown area of Shasta county. It was fenced on all sides. The deputy and the enforcement officer approached the gate, which was locked with a chain. Defendant's 78-year-old father came to the gate. The enforcement officer began recording with a video camera. A pastor of the neighboring Pentecostal church that defendant attended (Pastor Law), seeing the presence of officials, walked over to the property and stood nearby "to make sure things were going to be done right."
B The jury viewed the enforcement officer's recording (and received a transcript defense counsel had prepared, which the prosecution had stipulated was accurate). The following is a summary of their contents.
The deputy spoke with defendant's father, explaining the reason for their presence.*fn3 The deputy told the father "let [the enforcement officer] do his thing; he's got to come in" to take pictures because "the judge signed it, that's why and you know when a Judge signs it that's it." The deputy then stated, "[L]et [him] in Hugh, [p]lease." The father said he did not have a key for the lock on the chain. (Pastor Law later vouched for this in his testimony at trial.) The deputy stated, "[W]ell a court order allows us to cut it and I don't want to cut it"; then repeated, "I don't want to cut a link, but the court order allows [the enforcement officer] on the property." After the father protested that he had been working on cleaning up the property, the deputy again stated, "Hugh, if you have a key, I don't want to cut a link." When the enforcement officer interjected, "[S]o will you let him cut a link," the father stated, "I don't like it. I'll tell you what I really don't like it, because you can go right down this fence . . . and take pictures of [the state of the property]." After a brief exchange between the father and the enforcement officer about whether he had seen the posted copy of the inspection warrant (the father stating, "they have already read it"), the deputy returned with bolt cutters. After an audible click, the enforcement officer thanked the father for "allowing him [the deputy] to do that," entered the property, and began a narrative about the conditions he was recording. (In the video, the father simply stood there while the deputy cut the link and the enforcement officer entered, neither indicating assent nor protesting further.) Neither the deputy nor the enforcement officer advised the father that a refusal to allow the inspection was a misdemeanor.
About 12 minutes into the inspection, defendant accosted the enforcement officer behind the house. (He is not visible in the recording.) The enforcement officer continued to record conditions (over defendant's protests that forcible entry was not permitted) until defendant is heard stating "15 seconds he's off or else," at which point the enforcement officer noted that he was going to end his survey. As defendant counts off, an unidentified voice (testimony at trial indicating this was the backup deputy) claimed 15 seconds was not a reasonable amount of time. Defendant urged them to move faster. Defendant's brother then confronted the enforcement officer as they neared the gate, wrestling for the camera.
There is a break in the recording at this point. When it resumes (from a vantage point outside the gate), defendant is standing in front of the home with a shotgun in hand. According to the transcript (the audio track at this point being difficult to hear), defendant stated, "It doesn't get any better than this." The recording displays disjointed imagery for the next 30 seconds, at last coming to rest on defendant holding the shotgun pointed in the air, standing at the gate with his father and brother and directing his brother to "get the camera first." No one else is in the yard. When the enforcement officer pointed out he was now on public property, defendant's brother demanded that he "relinquish the tape. Now." Pastor Law approached defendant at the gate. Defendant told him, "I got ...