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People v. Lester

California Court of Appeals, Fourth District, Second Division

October 7, 2013

THE PEOPLE, Plaintiff and Respondent,
v.
NICHOLAS DEMARCO LESTER, Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County No. FSB1002367 J. David Mazurek, Judge.

Eric R. Larson, under appointment by the Court of Appeal for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael T. Murphy and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P. J.

A jury convicted defendant, Nicholas Lester, of possessing cocaine for sale (Health & Saf. Code, § 11351) and possessing marijuana for sale (Health & Saf. Code, § 11359). The jury further found that defendant had suffered three strike priors (Pen. Code, § 667, subds. (b)-(i)), four prior convictions for which he served prison terms (Pen. Code, § 667.5, subd. (b))[1] and a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (a)). He was sentenced to prison for 25 years to life, plus 6 years. He appeals, claiming his motion to suppress should have been granted. In supplemental briefing, he also asserts that he is entitled to be resentenced to twice the term for his conviction of possessing cocaine for sale, with a concurrent sentence of twice the term for possessing marijuana for sale. We reject both of his contentions and affirm, while directing the trial court to correct an error in the abstract of judgment.

The facts of this case are not relevant to the appeal.[2]

Issues and Discussion

1. Denial of Motion to Suppress

At the hearing on the motion to suppress, the first officer to arrive at defendant’s apartment testified that he was dispatched at 3:45 a.m. on June 10, 2010 for a disturbance between subjects which the 911 caller believed were going to have a physical fight and there were four to five female subjects near a red car who were yelling and screaming and possibly going to engage in a physical fight.[3] The 911 caller was at 1105 “F” Street, which was a two unit apartment. When the officer arrived after some delay, [4] he saw that there was no red car outside. As the officer and five others walked up to the building, defendant and the codefendant walked out of the more eastern of the two apartments, which turned out to be 1103 “F” Street and which was attached to the apartment at 1105 “F” Street, and walked towards the officers in the driveway. The officer asked the men what was going on. The codefendant said, “There is a problem with my baby mama, but it’s all right now.” The defendant and codefendant were detained by two of the five other officers and sat down at the curb, because it was suspected that they were involved in the disturbance that caused the 911 call. The officer spoke to the 911 caller, who told him that “a large fight had taken place next door at 1103[, ]” but she did not want to say anything else.[5] The officer knocked on the door at 1103, to see if any of the females involved in the disturbance were there, but there was no answer. The officer opened the door, which was not locked, and announced himself, then entered in order to find the females and ensure that there was not a physical fight and they were not injured. He immediately detected the strong smell of marijuana. No one was inside. However, he saw, in plain sight, suspected marijuana and cocaine. The officer returned to the curb, where he overheard defendant tell another officer that defendant was on parole and the apartment at 1103 was his apartment. The officer and another re-entered the house to search due to defendant’s parole status and because contraband had been seen in plain sight.

The trial court suggested that the facts were consistent with “there [being] an argument[, ] then a fight and somebody is inside the apartment hurt... [and]... a reasonable officer would be remiss [in] not further inquiring or investigating.” The trial court denied defendant’s motion to suppress, saying, “[G]iven what confronted these officers, the fact that there was an indication of a problem, ... none of the females were [sic] present, apparently the [red] car was gone, the [codefendant] was exiting an apartment where he had indicated there was a problem with his ‘baby mama[, ] but it was okay now, ’ I think certainly the officers would have been remiss in their duties had they not at least gone in and looked to see if somebody had been hurt[.]... [¶]... [¶] And when they went [back] in to retrieve the... controlled substances, suspected narcotics, and marijuana, they knew that [defendant] was on parole and subject to search....”

In reviewing a ruling on a motion to suppress, we view the record in the light most favorable to the ruling and defer to the trial court’s factual findings, express or implied, when supported by substantial evidence. (People v. Rogers (2009) 46 Cal.4th 1136, 1157.) In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (Ibid.)

Defendant contends that the trial court erred in denying his motion to suppress because the People had not carried their burden of demonstrating that the circumstances created an objectively reasonable basis for believing that a person within the house is in need of immediate aid. (Michigan v. Fisher (2009) 588 U.S. 45 [130 S.Ct. 546, 549]; Brigham City v. Stuart (2006) 547 U.S. 398, 400, 403; People v. Troyer (2011) 51 Cal.4th 599, 606 [Troyer].) “‘“‘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.”’”’ (Troyer, at p. 606.) However, we must approach each case with at least some measure of pragmatism and we recognize that “the police must make split second decisions as to whether someone is in need of immediate aid....” (Ibid.) In making his assertion, defendant merely compares the facts of this case with those of Fisher and Brigham City, wherein the entries were deemed to be reasonable. This is not particularly helpful, as the facts of those cases differed from the instant facts. Far more helpful is a discussion of cases in which the facts are closer to those here.

Such a case is Troyer. Therein, there was a report of shots fired at a residence and possibly an unidentified male being shot twice. (Troyer, supra, 51 Cal.4th at p. 603.) The suspects were driving a two door Chevy. (Ibid.) When the first officer to arrive got there, there was no such car in sight. (Ibid.) On the front porch, a man was administering first aid to a woman who had been shot multiple times. (Ibid.) Another man on the porch had a wound to the top of his head. (Ibid.) The woman was not able to give the officer any information. There was blood on the front door situated in such a way that it suggested that someone who was bleeding had either entered or exited the house. (Ibid.) The wounded man hesitated and did not answer when the officer first asked him if there was anyone inside; upon second inquiry, he hesitated and said he did not think so, and, upon third inquiry, he hesitated and said no. (Ibid.) The officer was afraid that the man was being untruthful or was inaccurate, the latter, due to his head wound. (Ibid.) The officer felt he had a responsibility to determine if an additional victim or even suspects were inside the house and he could neither see inside nor hear sounds coming from inside, due to the commotion caused by arriving police and medical personnel. (Id. at pp. 603-604.) After announcing their presence, the officer, and others, entered the house to look for victims and suspects. (Id. at p. 604.) Another officer who went upstairs announced himself at the locked door of a bedroom, and, getting no response, kicked the door open. (Ibid.) He smelled a strong odor of marijuana and saw the drug and a scale in plain sight. (Ibid.) The California Supreme Court concluded, “The record amply supported an objectively reasonable belief that one or more shooting victims could be inside the house. Police dispatch stated that shots had just been fired ‘at’ [the house], and... [the officer’s] observations of the blood at the scene indicated that a shooting had occurred ‘mere feet [from] or within the doorway area.’ Bloodstains on the door signaled that a bleeding victim had come into contact with the door, either by entering or by exiting the residence.... [¶] Moreover, the original dispatch report stated that a male victim had ‘possibly been shot twice’—and no such victim had yet been located.... [T]he officer never stated that... he had concluded [the wounded man] must have been the man described in the dispatch report. In any event, a concern that [the wounded man] might have suffered a gunshot wound did not foreclose the reasonable possibility that the male victim described in the original dispatch was still at large. (Causey v. City of Bay City (8th Cir. 2005) 442 F.3d 524, 530 [despite the plaintiffs’ assurances that no one was injured, it was “‘“equally plausible and not unreasonable”’” for the officers to infer that the plaintiffs were concealing an injured victim... [Citation.] [¶]... [The wounded man’s] inconsistent answers [about whether there was anyone inside the residence] raised serious concerns about [the man’s] ability to give accurate and reliable responses. [Citations.]]; State v. Frankel (2004) 179 N.J. 586 [847 A.2d 561, 574] [‘The responding officer is not required to accept blindly the explanation for the 9-1-1 call offered by the resident answering the door... ’]; [Citations].)” (Troyer, at p. 608.) The wounded man gave various answers to the officer’s questions whether there was anyone inside. “[The officer] could not peek inside to verify whether [the wounded man’s] final answer [i.e., ‘No’] was the correct one, nor, given the chaos at the scene, could he hear whether any sounds were coming from inside the [house]. Under these circumstances, and inasmuch as [the officer] did not know who lived at the [house] or who had been the aggressor, an objectively reasonable basis existed to enter the [house] to search for additional victims. [¶] The police entry here was no less justifiable than the police reentry [in] Tamborino v. Superior Court [(1986)] 41 Cal.3d 919.... In Tamborino, police responded to a reported robbery at a particular address, and a neighbor confirmed that an injured person was inside the apartment. After receiving no response to a loud knock and announcement of his presence, the officer kicked in the door and found Tamborino, who seemed to be bleeding from the right side of his face.... [Citation.] The officer, unsure whether Tamborino was a suspect or a victim, brought [him] out of the apartment and handcuffed him. The officer immediately reentered the apartment, based on his concern that there might be other injured persons inside, without even asking Tamborino whether anyone else was there.... [Citation.] [¶]... [W]e explained that ‘the observation of Tamborino, wounded and bleeding, coupled with the earlier report of a robbery, constituted “articulable facts” that reasonably could have led the officer to decide that an immediate, brief search of the apartment was warranted to determine whether additional persons were present.... [The officer] had no prior information indicating that only one victim was involved in the robbery, and in light of the situation he confronted, ordinary, routine common sense and a reasonable concern for human life justified him in conducting a walk-through search truly limited in scope to determining the presence of other victims.’ [Citation.]” (Troyer, at pp. 608-609, italics added and omitted.)

The Supreme Court also concluded that kicking in the door of an upstairs bedroom was justified, despite the absence of blood or signs of a struggle downstairs. (Troyer, supra, 51 Cal.4th at pp. 612-613.) The court reasoned, “Bloodstains... ‘are not prerequisites to a finding of exigency.’ [Citation.] [¶] Nor are signs of a struggle in the interior of a residence. [¶]... [¶]... The People’s burden under the Fourth Amendment is to identify an objectively reasonable basis for believing that someone inside was in need of immediate aid—not to eliminate every other reasonable inference that might also have been supported by those facts. (See State v. Mielke (2002) 257 Wis.2d. 876 [652 N.W.2d. 316, 319] [‘[T]he question is whether the officers would have been derelict in their duty had they acted otherwise.’].)” (Troyer, at pp. 612-613.)

Applying the reasoning in Troyer here, we note that the 911 caller believed the four to five female subjects were going to have a fight and the officer had been delayed in his arrival at the apartment. The four to five females were not present, nor was the car associated with them. However, defendant and the codefendant walked out of the apartment that was the source of the disturbance. The codefendant confirmed that there had, indeed, been a “problem, ” and the officer was free to disbelieve his representation that everything was now all right. The 911 caller confirmed to the officer that a “large fight” had taken place at the apartment. No one answered the door at the apartment and the officer entered to find the females and make sure that ...


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