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The People v. Maury David Moore

January 18, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MAURY DAVID MOORE, DEFENDANT AND APPELLANT.



(Super. Ct. No. 08F03884)

The opinion of the court was delivered by: Nicholson , Acting P. J.

P. v. Moore

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Police officers conducted a protective sweep after they arrested defendant pursuant to a warrant and secured him in a police vehicle. During that sweep, they found a rifle. Defendant was charged with possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1))*fn1 plus allegations of a prior strike conviction (§§ 667, subds. (b)-(i); 1170.12) and service of three separate prior prison terms (§ 667.5, subd. (b)).

Following the denial of defendant's suppression motion (§ 1538.5), he pleaded no contest to the firearm possession charge and admitted the prior strike conviction in exchange for the dismissal of the prior prison term allegation and an effective term of 16 months (eight-month midterm doubled because of the strike) to run consecutive to a 14-year sentence defendant was then serving.

On appeal, defendant contends (1) the trial court erred in denying his suppression motion, and (2) the evidence is insufficient to support the trial court's finding the rifle was in plain view during the protective sweep.

We conclude that the entry into his residence cannot be justified as a protective sweep and, therefore, his suppression motion should have been granted. Because the observation and seizure of the rifle were the products of the illegal search, we need not address defendant's contention regarding the rifle being in plain view.

FACTS FROM SUPPRESSION HEARING

On April 26, 2008, Sacramento City Officer Derick Cannedy responded to a domestic violence with injuries call at defendant's apartment. There, Cannedy was met by Giselle Moore, defendant's wife, whose face was swollen and cut and bloody. There was also blood on the floor. Giselle said defendant attacked her and then drove off in a white Ford Expedition. Giselle told Cannedy that she, her daughter, and defendant resided at the apartment.

On May 14, 2008, Officers John Gresham, Ben Spencer, and Johnny Lopez went to defendant's apartment to execute a felony arrest warrant for defendant based upon his attack on Giselle. At that time, Officer Gresham knew that defendant had prior convictions for manslaughter and felon in possession of a firearm, and that he drove a white Ford Expedition.

Officer Gresham knocked on the front door while other officers circled around the apartment. After "several minutes" Giselle answered the door and identified herself. Officer Gresham told Giselle he wanted to speak with defendant and asked if defendant could come to the front door. Giselle replied that "nobody was home" and "[s]he was the only one there." Officer Gresham knew this was not true because while Officer Gresham was waiting for someone to answer the front door, Officer Spencer had told him that he had observed two people in a back bedroom of the apartment, one of whom looked like defendant.

Defendant eventually came to the door and was taken into custody outside the apartment within "[a]pproximately an ...


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