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People v. Williams

California Court of Appeals, Second District, Eighth Division

September 8, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
KEVIN R. WILLIAMS et al., Defendants and Appellants.

         APPEAL from an order of the Superior Court of Los Angeles County No. MA064988, . Eric P. Harmon, Judge. Affirmed.

          Allison H. Ting, under appointment by the Court of Appeal, for defendant and appellant Kevin R. Williams.

          James M. Crawford, under appointment by the Court of Appeal, for defendant and appellant Pauline R. Winbush.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.

          GRIMES, J.

         Pursuant to a plea agreement, defendants and appellants Kevin R. Williams and Pauline R. Winbush were each convicted of one felony count of dog fighting, and one felony count of animal cruelty. The sole issue on appeal is defendants' contention the court erred in denying their joint motion to suppress evidence and to quash and traverse the warrant pursuant to Penal Code section 1538.5.

         We affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         On February 17, 2015, defendants Williams and Winbush were charged by information with 29 separate counts, including four felony counts of possession of fighting dogs (Pen. Code, § 597.5, subd. (a)(1); counts 1-4), and 17 counts of animal cruelty (Pen. Code, § 595, subd. (b); counts 5-21).

         Defendants jointly filed a motion to suppress evidence seized during the search of their residential property on November 26, 2014, and to quash and traverse the warrant pursuant to Penal Code section 1538.5. The People filed opposition. The motion was heard on October 7 and 26, 2015, and concluded on November 18, 2015. We summarize the material facts as reflected in the testimony received at the hearing.

         Just before 3:00 p.m. on October 29, 2014, Ed Callaway, a field officer with the Los Angeles County Department of Animal Control (Animal Control), responded to a report of a loose horse near the 7000 block of West Avenue A-14 in an unincorporated rural area of Los Angeles county, near Lancaster. When he arrived on the scene and saw the wandering horse, he saw a car swerve to avoid hitting it, and several other cars in the vicinity.

         Officer Callaway approached the horse, trying not to frighten it out into traffic, but the horse headed back down Avenue A-14. He followed the horse slowly in his vehicle until the horse stopped at the property located at 7038 West Avenue A-14 (property later determined to be defendants' residence). The horse attempted to reenter the property through a side fence near where there was some sort of corral. Officer Callaway noticed there were several broken or loose boards in the fence, and presumed the horse had gotten loose from there. The horse was unable to get back into the yard.

         As the horse continued to try to push through the fence, Officer Callaway heard several dogs begin to bark. He walked along the outside of the fence toward the horse to try to determine if the dogs were loose and could frighten or injure the horse, or chase it back out onto the street where it would be a serious hazard. Officer Callaway saw that the dogs were confined in “makeshift” kennels of chain link fencing and plywood inside the yard.

         The dogs continued barking, and the horse walked back toward the front of the property. The horse stopped near the driveway that led up to the garage attached to the home. There was an open gate in a chain link fence that abutted the side of the garage. The fence was about three feet high. The horse went through the gate but appeared to have difficulty getting into the back yard due to debris and weeds. It retreated back out to the front yard and began to eat some weeds or spilled hay on the ground near the garage. Officer Callaway moved his vehicle and parked it in a location near the driveway, hoping to block the horse from leaving that portion of the front yard. Officer Callaway then walked through the open gate into the back yard to see if there was a suitable corral, that did not have broken fencing, in which to safely secure the horse. He could not see any suitable corral and returned to the front yard.

         Officer Callaway called Sergeant Rachel Montez-Kemp, also of Animal Control, and told her he needed a trailer to impound a loose horse. While he waited for her to arrive, he yelled into the yard announcing his presence in case the property owner was out back. He also honked the horn of his vehicle. He got no response. Sergeant Montez-Kemp arrived about 20 minutes later with a horse trailer.

         Once Sergeant Montez-Kemp arrived, they haltered the horse and placed it inside the horse trailer. The horse looked “thin.” Sergeant Montez-Kemp had brought a bucket of feed, so they left the horse eating inside the trailer while they attempted to determine if the owner was at home. Sergeant Montez-Kemp has worked for Animal Control for 16 years and the department's normal procedure is to attempt to make contact with an owner of livestock before impounding an animal. Officer Callaway, who had seven years of experience, confirmed that was the department's practice.

         Sergeant Montez-Kemp knocked on the front door of the home. No one answered, but she heard the distinctive sound of puppies barking from inside the home. She also knocked on the front window of the home and the garage door but got no response. Sergeant Montez-Kemp told Officer Callaway to call dispatch to attempt to call the property owners. Dispatch left a message on an answering machine after no one picked up the phone.

         They heard several dogs barking in the back yard, as well as a dog barking and “whining” from inside the garage. There was a strong smell of “excessive” fecal matter. Officer Callaway looked through a broken window in the upper corner of the garage door. There was a dog inside, in conditions that appeared “unhealthful.” Officer Callaway also saw a treadmill and a “slat mill” partially covered by a tarp. A slat mill is a device used in the training of fighting dogs. Officer Callaway said he was six feet one inch tall, but was a couple of inches taller in his work boots, and was able to look into the window of the garage door.[1]

         Sergeant Montez-Kemp thought if the owner was out in the back yard, the noise from the barking dogs could make it difficult to hear them knocking and yelling out front. Both she and Officer Callaway walked through the open gate near the garage into the back yard.[2] Officer Callaway looked into the window at the back of the garage, as did Sergeant Montez-Kemp.

         While in the back yard, Sergeant Montez-Kemp confirmed the corral with the broken boards was not suitable for the horse as it could plainly escape again and get injured or be a danger to motorists. They walked a little further into the back yard toward the kennels. She noticed that all of the dogs on the property in makeshift kennels were pit bulls, the breed most often used in dog fighting. One of the dogs had a missing lip, and another smaller female pit bull had multiple scars on her body. Another kennel contained a dog with a litter of puppies. They saw no one in the back yard.

         Sergeant Montez-Kemp was familiar with defendants' property as she had been called out to the property on prior occasions, including in February 2008 on a report of excessive dogs on the property and “possible dog fighting.” At that time, she found approximately 30 pit bulls on the property but defendants claimed to have the requisite permits or were in the process of obtaining them. No further action was taken. She was also aware that another Animal Control officer had been called to the property in 2010 due to a report regarding horses that were “thin” or in poor condition. The officer who responded to the property in 2010 reported numerous pit bulls were kept in kennels filled with ...


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