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People v. Rubio

California Court of Appeals, First District, Fourth Division

July 18, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
ADAN RUBIO, Defendant and Appellant.

          San Mateo County Super. Ct. No. 16-SF-012681-A Honorable Steven L. Dylina and Donald J. Ayoob

          Counsel for defendant and appellant: Gordon S. Brownell, under appointment by the Court of Appeal

          Counsel for plaintiff and respondent: Xavier Becerra, Attorney General Gerald A. Engler, Chief Assistant Attorney General Jeffrey M. Laurence, Senior Assistant Attorney General Catherine A. Rivlin, Supervising Deputy Attorney General Bruce M. Slavin, Deputy Attorney General

          POLLAK, P. J.

         Defendant Adan Rubio appeals his conviction by plea to possession of a controlled substance with a firearm (Health & Saf. Code, § 12305), a plea entered after the trial court denied his motion to suppress the evidence found in his apartment (Pen. Code, § 1538.5).[1] Police had forcefully entered the apartment after responding to the scene where 11 gunshots had just been fired and officers were concerned that a shooting victim or suspect might be inside. We agree with the magistrate and the lower court that under the circumstances the warrantless entry was justified under the so-called community caretaking exception to the Fourth Amendment warrant requirement, and that the suppression motion was properly denied. We shall therefore affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         On October 19, 2016, at approximately 10:40 p.m., East Palo Alto Police Department Sergeant Clint Simmont received an alert on his “ShotSpotter” application that shots had been fired near 2400 Gonzaga Street. ShotSpotter triangulates the location of gunfire via microphones placed throughout the city. ShotSpotter notified Sergeant Simmont of two separate bursts of gunfire. First came five rounds from the edge of the garage driveway area of 2400 Gonzaga, then one minute later came six rounds at “the edge of the driveway, near the sidewalk.” Sergeant Simmont testified that 2400 Gonzaga is located in “Da Vill, ” known as a high-crime neighborhood. He further testified that he had responded to more murders within a block of that location than anywhere else in East Palo Alto.

         Sergeant Simmont and a team of four other officers arrived near the location of the shots and parked 60 to 70 feet from the edge of the driveway. Officers Andrea Dion and Rock Stilwell spoke with persons nearby and asked if they had heard gunfire. Two individuals pointed towards a boat in the driveway of 2400 Gonzaga and stated that they saw flashes coming from the other side of the boat. As the officers approached the house with their guns out, they found a spent shell casing on the ground at the top of the driveway near the garage. Sergeant Simmont believed the casing was a.45 caliber round and may have come from a semiautomatic weapon.

         Approximately one minute after the officers found the spent shell casing, a man identified as Joshua Bazan walked through the wooden gate of a fence that separated the front and back yards of the house. Sergeant Simmont recognized Bazan from prior contacts and testified that Bazan frequently drinks and yells at police. Sergeant Simmont also testified that Bazan did not reside at 2400 Gonzaga. As he came through the gate, Bazan began yelling obscenities at the officers and assumed a combative position. The officers arrested Bazan and placed him in a patrol car.

         After Bazan's arrest, Officer Dion located two additional spent casings behind the open gate that Bazan had passed through. Sergeant Simmont concluded the gunfire had come from near the gate, although he could not testify from which side. Sergeant Simmont testified that he was “investigating whether or not we had a victim or a shooter [who] was hiding out.”

         Sergeant Simmont pounded loudly on a door attached to the side of the garage and announced police presence four or five times. No one responded, but Sergeant Simmont heard what sounded like someone inside the garage pushing items against the door, and he noticed that the door appeared to be flexing. Sergeant Simmont believed someone was attempting to barricade the door. As Sergeant Simmont was knocking on the door, a man later identified as Sergio Castillo came to a window next to the garage. Sergeant Simmont ordered Castillo to open the door. Castillo indicated that the door was not the door to the garage, but instead was a door to a separate room.

         Sergeant Simmont, Officer Lee, and Officer Weigand spoke with several persons at the front door to the residence. When asked whether anyone in the house had been shot, defendant's father, Francisco Rubio Sr., stated he did not know. Sergeant Simmont testified that he asked Francisco Sr. for permission to search the house, which Francisco Sr. granted. Francisco Sr. testified that the officers never asked him for permission to enter the house.

         Once inside the house, officers asked Francisco Sr. who was inside the garage, and he responded that his son was. Sergeant Simmont then asked for permission to search the garage, and Francisco Sr. responded, “Sure.” Attempting to open the door from the house to the garage, Francisco Sr. found that it was locked, but told the officers he would get the key.

         As Francisco Sr. was getting the key, defendant emerged from the garage, opening the door “just enough to slide his body out.” Defendant closed the door, which automatically locked behind him, and approached the officers with his hands in his pockets, yelling for them to shoot him. Sergeant Simmont repeatedly ordered defendant to show his hands. Defendant eventually took his hands out of his pockets and, as he did so, threw a key ring into the kitchen sink. Officers arrested defendant and placed him in a patrol car.

         The officers retrieved the key defendant had thrown into the sink and attempted to use it to open the door to the garage. When defendant's key did not work, Sergeant Simmont and Officer Stilwell kicked the door open and entered the garage. Sergeant Simmont testified that he was uncertain what was on the other side of the door and that he had no reason to believe anyone had been shot, but he “didn't have anything to rule that out, either.”

         Upon entering the garage, Sergeant Simmont observed that the garage was a converted apartment. The officers did not find anyone inside the apartment, but did observe “an explosive device on a shelf.” The officers also found and collected an operable.45 semiautomatic Smith & Wesson pistol on the shelf in an open closet. Sergeant Simmont noticed that the door he had knocked on earlier from the outside was barricaded by furniture.

         The officers cleared the house of all occupants to secure the scene. At around 5:18 a.m., a search warrant was obtained. The officers reentered the residence and executed the warrant. The officers found an operable.357 Smith & Wesson handgun, twenty.40-caliber bullets, 87 live.357-caliber bullets, a body armor vest, six spent.357 Smith & Wesson shell casings, and a plastic twist-off bindle in a shot glass with a clear, rock-like substance. Sergeant Simmont located surveillance equipment with a view of the driveway and a video that showed three people walking down the driveway. Defendant is seen pulling out a revolver and firing six shots into the air. Defendant and two other individuals, Bazan and possibly defendant's brother, are then seen running back through the gate next to the house.

         Following the filing of a five-count felony complaint, defendant filed a motion to suppress evidence. At a hearing on the motion to suppress, the prosecution argued that the warrantless entry into defendant's garage was justified under multiple theories: community caretaking, emergency aid, exigent circumstances, and consent. Citing to People v. Ray (1999) 21 Cal.4th 464, the magistrate ruled that the search satisfied the community caretaking exception, but noted that it was “a very close case.” The court denied the motion to suppress.

         The San Mateo County District Attorney then filed a six-count felony information, charging defendant with discharge of a firearm with gross negligence (§ 246.3, subd. (a) (count one)), possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1, subd. (a) (count two)), unlawful possession of a firearm by a felon (§ 29800, subd. (a)(1) (counts three and four)), unlawful possession of ammunition (§ 30305, subd. (a)(1) (count five)), and possession of an explosive (Health & Saf. Code, § 12305 (count six)), with a special allegation that defendant is ineligible for probation because of two prior offenses (§ 1203, subd. (e)(4)).

         Defendant filed a motion to set aside the information pursuant to section 995, alleging that the evidence presented at the preliminary hearing should have been suppressed pursuant to section 1538.5. Defendant also renewed the original motion to suppress evidence. Citing the emergency aid doctrine of the community caretaking exception, the trial court denied defendant's motion to set aside the information and denied the motion to suppress.

         Following this second denial of his motion to suppress, defendant entered a plea of no contest to violating Health and Safety Code section 11370.1, as charged in count two, and admitted the special allegation pursuant to section 1203, subdivision (e)(4). The trial court sentenced him to three years of supervised probation, subject to conditions including nine months in ...


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