(Super. Ct. No. SF111597A)
The opinion of the court was delivered by: Hoch , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Andre Efiong Etok was tried by jury and convicted of four felonies (cultivation of marijuana, possession of marijuana for sale, theft of utility services, and possession of a firearm by a felon) and three misdemeanors (driving under the influence of alcohol, driving with a blood-alcohol content of 0.08 percent or above, and leaving the scene of an accident). He was sentenced to an aggregate state prison term of three years and four months (middle term of two years for the firearm possession), plus two consecutive eight-month terms (one-third the middle term) for the cultivation of marijuana and the theft of utility services); concurrent sentences were imposed on the remaining counts).
On appeal, defendant challenges the denial of his motion to suppress evidence made initially at the preliminary hearing and renewed before the trial court. He also asserts that the trial court should have stayed execution of sentence on either his conviction for driving under the influence of alcohol or his conviction for driving with a blood-alcohol content of 0.08 percent or above pursuant to Penal Code section 654.*fn1 As we shall explain, the suppression motion was appropriately denied. However, as the Attorney General concedes, we must modify the judgment to stay execution of the sentence imposed for driving under the influence of alcohol. As modified, we affirm the judgment.
Because the only issue on appeal requiring a statement of facts involves the denial of defendant's motion to suppress evidence, which was heard concurrently with the preliminary hearing, this summary is based on the testimony adduced during that hearing.
During the early morning hours of April 17, 2009, defendant crashed his Honda Accord into a Saturn driven by Francisca Casalta as the two vehicles traveled southbound on Interstate Highway 5 in Stockton. North of Monte Diablo Avenue, the Honda approached the Saturn "at a very high rate of speed" and cut "across all lanes of the freeway," hitting the Saturn from behind as Casalta "changed lanes to the fast lane" in an attempt to avoid the collision. The impact pushed the Saturn into the center median and caused it to collide with the guardrail. The Honda, now missing the front and rear bumpers, came to rest in the middle of the freeway. The front axle and engine compartment took considerable damage in the crash. The accident also claimed a third vehicle as a pickup truck swerved to avoid the already-wrecked cars and rolled over on its side.
Law enforcement and emergency medical personnel arrived a short time later. Casalta and her passenger complained of back and neck pain, but declined transport to the hospital. Defendant was nowhere to be found. Because the accident occurred on "a blind corner," California Highway Patrol (CHP) Officer Keith Sweeney's first concern was slowing traffic and getting the wreckage off of the freeway. Accordingly, Officer Sweeney had another officer create a traffic break and called for three tow trucks to remove the vehicles. Sweeney then searched the Honda for indicia of ownership and found mail addressed to defendant. The address on the mail was less than a mile from the accident site. A cell phone was found in the car with a digital image of defendant as the phone's wallpaper. The keys were also left in the ignition.
About an hour after arriving at the crash site, "directly after the freeway was clear," Officer Sweeney and several other CHP officers drove to defendant's address, a house with a back yard that abutted the onramp connecting Monte Diablo Avenue to the freeway. The entire house was surrounded by a wrought iron fence. A light was on toward the back of the house. Sweeney "secured the house" by sending officers into the front and back yards "in case someone tried to flee." Sweeney also requested a San Joaquin County Sheriff's Department unit with a Custody Information System Photo Viewer, "which had the capability of showing a photograph of the possible subject." When the Sheriff's Department unit arrived 10 to 15 minutes later, Sweeney confirmed that the image on the cell phone was that of defendant.
At this point, one of the officers who was dispatched to the back yard advised Officer Sweeney that there was a broken window in the back of the house. Sweeney entered the back yard and saw that the broken window had blood on it. Through the window, Sweeney could see into the kitchen. On the kitchen floor, defendant was "lying down on a mattress under a blanket" and "[a]ppeared to be sleeping." There was a "very strong" odor of marijuana coming from inside the house. Sweeney requested a Sheriff's Department K-9 unit to assist in making entry into the house, which arrived 10 to 15 minutes later.
About 40 minutes after arriving at defendant's house, and nearly two hours after the accident, Officer Sweeney entered the house with the help of the K-9 unit. The dog's handler loudly identified himself through the broken window and ordered defendant to show his hands. Defendant did not respond. After several such commands, defendant "lifted his head up, opened his eyes and then almost immediately put his head back down and closed his eyes like he was going back to sleep." The deputy then broke the remainder of the window and followed the dog into the house. The dog first went to a box in the kitchen and then went to defendant and grabbed his arm with its mouth. Sweeney and several other officers also entered the house with weapons drawn and took defendant into custody.
On top of the couch in the living room, visible from the kitchen, was a .45 caliber semi-automatic handgun. Another officer brought this to Officer Sweeney's attention after he had taken defendant into custody. Behind the couch was a "garbage bag full of marijuana clippings." Next to the box in the kitchen was a scale. Sweeney took defendant to his patrol car and placed him inside. Defendant's breath "had a strong odor of alcohol," his eyes were "red and watery," and he was "very unsteady on his feet." On the way to the patrol car, defendant asked "if anybody was injured in the collision." Sweeney then came back into the house, secured the gun, and conducted a protective sweep of the rest of the house. During the sweep, officers discovered that the upstairs bedrooms contained about 150 marijuana plants.
When Officer Sweeney returned to the patrol car after finding the marijuana plants upstairs, defendant stated: "You found the gun and the little ladies." On the way to the jail, defendant stated: "I wish I was -- it's too bad I wasn't awake when you came into the house because I would have grabbed my gun and killed one of you before you killed me." Defendant's blood was drawn about four hours after the accident. His blood-alcohol content was 0.11 percent. Officers later secured a search warrant and seized the evidence described above.
As mentioned, defendant filed a motion to suppress evidence pursuant to section 1538.5. The motion was heard concurrently with the preliminary hearing and denied. The magistrate found that entry into defendant's back yard was justified by the hot-pursuit doctrine. He explained: "This was an accident that happened on the freeway. The officers did -- there's nothing to indicate they delayed in taking care of the matter as expeditiously as they could. And they weren't in sight of the fleeing perpetrator at the time, but they acted as reasonably properly as could be expected. [¶] They had been told the driver had been driving very rapidly before he hit the victims in the case, and also [were] told by the victims they had been injured, they felt some pain. And so it was reasonable for [officers] to pursue the perpetrator on the basis that it was a possible felony hit and run." The officers also knew that "defendant was driving very erratically, bounced off the guardrail and ran into these two people who said they had been injured, [so] there was also a possibility of [charging defendant with] driving under the influence with injury." After learning of defendant's identity and address from searching the car, the officers drove to his house as soon as they had cleared the freeway. The magistrate described this as "a very logical progression" of events that fell within the hot-pursuit doctrine at least to the extent of justifying entry into the back yard.
Once the officers were in the back yard, the magistrate explained, they had two independent bases to enter the house. First, they saw a broken window with blood on it and defendant lying on a mattress in the kitchen. This fit the evidence at the accident scene because defendant left his keys in the car and probably could not get into the house "unless he broke a window or something like that." In light of the blood on the window and defendant's apparent inability to respond to commands, "a reasonable person seeing those circumstances would be worried that [he] needed medical aid." Second, Officer Sweeney could smell the "strong odor of marijuana" coming from inside the house, "which again put together with the information he had from the accident scene suggests that the person driving that Honda was under the influence of marijuana at least." Relying on People v. Thompson (2006) 38 Cal.4th 811 (Thompson), the magistrate found that because "just like alcohol the effects of marijuana dissipate with time," Officer Sweeney had "very good reason to believe" that if he did not act promptly evidence that defendant was under the influence of marijuana would disappear.
Once inside the house, the officers placed defendant under arrest and discovered the handgun, which was "in plain view." However, the magistrate found that the protective sweep was unreasonable, explaining: "Now, at that point the officers are confronted with what amounts to a traffic offense committed by a single person, the only person seen in the car was the driver. . . . The officers now have that person in custody. He offers no further threat. I don't think that's right that they had a justification for then going upstairs to check the house for marijuana. [¶] They could clearly smell marijuana, and they certainly had a justification for getting a warrant at that time, but I don't think that the excuse of going up to look for more perpetrators or finding out whether there might be somebody else in the house is justification for searching through the house. [¶] . . . [¶] You can't use protective sweep as an excuse for searching the rest of the house, especially where there's only one perpetrator. It involves a traffic offense. There are no accomplices involved."
After excising all information obtained during the protective sweep from the declaration submitted in support of the search warrant, the magistrate concluded that the warrant would have issued even without this improperly obtained information. He explained: "[T]he officer knows that defendant is driving erratically, he goes to the defendant's house, the defendant is acting as if he is unconscious, the officer smells a strong odor of marijuana, he enters, sees the gun, and smells marijuana very strongly inside the house as well. [¶] That would certainly have been justification to issue a warrant to search that entire house for evidence of the marijuana. And so I think that the search warrant was properly issued based upon that information, even after you eliminate the improper information."
Defendant renewed the suppression motion before the trial court. During the hearing, defense counsel argued that "the crux of the case" was the fact that officers "immediately went into the back yard without any legal reason to do so." Counsel elaborated: "[T]he bottom line is they had no right to be in the back yard to make an observance through the window, to see, hear, or smell anything because they shouldn't have been there in the first place." The trial judge disagreed and denied the ...