California Court of Appeals, Fourth District, Second Division
APPEAL from the Superior Court of Riverside County No. RIF10006447. Charles J. Koosed, Judge.
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Jill M. Klein, 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, Scott C. Taylor and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
HOLLENHORST Acting P. J.
This case raises important questions about how police should react when they encounter someone in front of a house engaged in suspicious activity. Here, police officers contacted and detained not only an individual in the driveway in front of a house, whom they observed stripping copper wire from an air conditioner, but also the occupant of the house, suspecting that “maybe possibly” a burglary was in progress. The officers were aware of no facts particular to the occupant of the house suggesting that he was a burglar, rather than a resident. And they made no reasonable attempt to ascertain such facts until after he was detained. It was later determined he was in fact a resident.
The Fourth Amendment does not countenance warrantless intrusion by police into a private home and detention of a resident under the circumstances of this case. The police had no probable cause with respect to the resident of the house—who is the defendant in this case—so suspected exigent circumstances do not justify the officers’ actions. As such, the detention was unlawful, and defendant’s motion to suppress the fruits of that unlawful detention should have been granted.
Defendant Ricardo Lujano pleaded guilty to charges of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 3), receiving stolen property (Penal Code,  § 496, subd. (a); count 4), and possession of a firearm by a felon (former § 12021, subd. (a)(1); count 5). A jury found him guilty of robbery (§ 211; count 1), and found true an enhancement for personally using a firearm during the commission of the robbery (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8)). The trial court sentenced defendant to 14 years 4 months in prison, as follows: a three year term on count 1, plus a consecutive 10-year term for the firearm enhancement; eight-month consecutive terms on counts 3 and 4; and a concurrent two-year term on count 5.
On appeal, defendant contends the trial court erred by (1) denying his motion to suppress evidence obtained in an allegedly illegal search and seizure, (2) denying his motion to sever the robbery charge from other charges, (3) denying his motion in limine to allow him to present evidence and argument that third parties were responsible for the robbery, and (4) failing to stay punishment on count 5, pursuant to section 654.
The People concede, and we agree, punishment on count 5 should have been stayed. Additionally, we reverse the trial court’s denial of defendant’s
suppression motion, and vacate the judgment of conviction with respect to count 1 and the firearm enhancement. We affirm the judgment in all other respects.
II. FACTUAL AND PROCEDURAL BACKGROUND
On the night of December 19, 2010, a liquor store in Riverside was robbed by two men wearing black hooded sweatshirts, gloves, and masks, one of whom was brandishing a handgun. The store was equipped with multiple surveillance cameras, which captured the robbery from various angles. One of the men—the one brandishing the firearm—appeared to be about six feet tall and to weigh about 300 pounds, while the second man was shorter (5 feet 8 inches, or 5 feet 9 inches tall) and thinner. From the surveillance video, police officers later identified the gun used in the robbery, which was never recovered, as a.38-caliber or.357 hammerless revolver. During the robbery, the two victims of the robbery—the store manager, and a friend who was at the store—were both sprayed in the face with pepper spray. Neither victim was able to identify either of the robbers.
On the afternoon of December 28, 2010, two Riverside police officers on patrol, Henry Park and Bryan Galbreath, observed a man in the driveway in front of a house stripping copper wire from an air conditioning unit that may have come from the residence. The officers approached and spoke with the man, Albert Vargas, who said he was there visiting a friend named “Rick.” Though Vargas did not know his last name, “Rick” was eventually identified as defendant. Vargas also admitted to being on probation “for narcotics.” He explained he was stripping copper wire from the air conditioner because it no longer worked.
A side door that led from the driveway into the house was ajar—partially open, but not enough to walk through. Officer Galbreath approached the door and leaned inside, identifying himself as a police officer and commanding anyone in the house to come to the door. Defendant responded, coming out from
the bedroom area of the house into Officer Galbreath’s view, and then following Officer Galbreath’s instructions to turn around and walk backwards out of the door, onto a concrete step. At that point, Officer Galbreath did not handcuff defendant, but took physical control of him (“had hands on him”) and required defendant to keep his hands clasped behind his back. Officer Galbreath asked defendant for consent to search his person; defendant gave his ...