California Court of Appeals, First District, Fourth Division
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.
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). 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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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.”
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.
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.
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
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.
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.”
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.
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.
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.
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)).
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.
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 ...