P. v. Ayala






Filed 9/20/11 P. v. Ayala CA2/2






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. DAVID AYALA, Defendant and Appellant.

B225253 (Los Angeles County Super. Ct. No. KA088740)

APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. Affirmed as modified.

Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.



* * * * * *
Appellant David Ayala appeals from a conviction of two counts of attempted second degree robbery (Pen. Code, §§ 664/211),^[1] and as to both counts that he used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). Appellant was sentenced to state prison for five years (three years on count 1, plus one year for the weapon enhancement, and eight months on count 2, plus four months for the weapon enhancement). Appellant was awarded 207 days of actual custody credit and 31 days of conduct credit, for a total of 238 days of presentence credit.
Appellant contends on appeal that (1) the convictions should be reversed because the trial court erred in denying his motion to suppress evidence (§ 1538.5) obtained through the warrantless entry and search of his home and person; (2) insufficient evidence supported his conviction for the second count of attempted robbery; (3) the trial court abused its discretion in imposing the maximum sentence; and (4) the trial court committed sentencing error in failing to award full actual presentence credit. We modify the judgment to award 312 days of presentence credit. In all other respects, the judgment is affirmed.

FACTS
Prosecution Evidence
On November 15, 2009, at approximately 6:00 p.m., 17-year-old high school students David C. and Lauren K. were walking together on a residential street in Baldwin Park. Appellant was on the other side of the street, standing in front of a house. Appellant crossed the street and walked closely behind David C. and Lauren K. Appellant asked them if they had any “bud” or “weed,” meaning marijuana. David C. and Lauren K. both turned, looked at appellant and both told him they did not have any drugs. Appellant, who smelled of marijuana and appeared to be under the influence of drugs, kept his right hand in his front right pocket. David C. and Lauren K. continued walking and appellant followed them. Appellant warned them not to lie to him and kept asking if they had any bud and “where it was at” stating “I know you got bud on you, come on, give me the bud.”
Appellant ran in front of David C. and Lauren K., drew a knife from his right front pants pocket, and demanded they give him what they had in their pockets. Appellant first pointed the knife at David C., then turned and pointed it at Lauren K. The knife had a silver blade with a dark handle. Lauren K. was scared of appellant because he had a knife and this was the first time that anyone had tried to take something from her. David C. was also scared that appellant might stab him.
David C. and Lauren K. attempted to move away from appellant but he moved towards them and again demanded that David C. empty his pockets. David C. and Lauren K. tried to get assistance from a passing motorist, who initially stopped, which caused appellant to back off, but the motorist then drove away. When appellant took a few steps towards them, David C. took out his cell phone and told appellant he was calling the police. Appellant backed away, then jogged across the street to the driveway of the house where he had been standing earlier.
David C. and Lauren K. went to a nearby gas station and while on hold for the 911 operator saw Baldwin Park Police Officer Todd McAvoy at a nearby convenience store. They told him that a Hispanic male around their age, wearing a gray sweater, gray hoodie, and a dark hat possibly with an “L.A.” logo, had brandished a knife at them and demanded they turn over their possessions to him. David C. went with Officer McAvoy and showed him where the incident had occurred and where he last saw appellant.
Officer McAvoy accompanied by three other officers went to the residence identified by David C. The front door was partially open but a screen door was closed and locked. Through a front window, Officer McAvoy observed that a television set was on, and he saw the lower portion of a person lying on the floor of the living room. Using his flashlight, Officer McAvoy banged on the screen door but got no response. The person lying on the floor did not move. Officer McAvoy tried without success to obtain a telephone number for the residence through his dispatch. He then yelled through the screen door identifying himself as a police officer, but still got no response.
Officer McAvoy walked to the rear of the house, opened an unlocked back door, and having gotten no response when he yelled into the residence that he was a police officer, proceeded to enter the house. Appellant, lying face down in the living room, was unresponsive to Officer McAvoy’s questions. When Officer McAvoy roused appellant he detected a strong odor of marijuana and alcohol. Appellant was wearing a black baseball cap with an “L.A.” logo. Officer McAvoy observed a gray sweater next to appellant and a blue pocketknife on the floor. A silver pocketknife was recovered from appellant’s front pants pocket during a pat down search for weapons.
David C. and Lauren K. were brought in separate police cars to take part in a field showup. David C. immediately identified appellant as the person who had attempted to rob him and Lauren K. He was “positive” it was appellant because during the attempted robbery appellant was approximately a foot away and he had gotten a clear look at his face. At first, Lauren K. was not sure if appellant was the person who held the knife and pointed it at her, but after appellant put on the black baseball cap and sweatshirt, she made a positive identification.

Defense Evidence
Giovanna Ramirez, appellant’s older sister lived in the rear house located on the property, with her boyfriend, his mother and his sister. Appellant lived alone in the front house at the same address. Ramirez was having a barbecue on November 15, 2009 between 6:00 and 7:00 p.m. Ramirez’s mother called around 5:15 p.m. and asked Ramirez to check on appellant, and at 5:15 p.m. and 5:30 p.m. appellant was at his house. At 6:15 p.m. appellant went to the back house and told Ramirez that their mother was on the phone and wanted to speak with Ramirez. At 6:30 p.m. Ramirez took a hamburger to appellant, who was lying on the couch watching television, and drinking a 40-ounce bottle of “Bud Light.” Around 7:00 p.m., Baldwin Park police officers told Ramirez that appellant had been arrested for attempted robbery. Ramirez testified that she had seen appellant at their home at 5:00 p.m., 5:15 p.m., 5:30 p.m., 6:15 p.m., and 6:30 p.m., that he only had one beer, and that he did not leave the property during that period of time. Ramirez also testified that she had never seen appellant with the knives recovered by Officer McAvoy.

Motion to Suppress
At the Penal Code section 1538.5 hearing, defense counsel moved to suppress all items seized from appellant and all observations and fruits of the search, because the police entered appellant’s home without a warrant. The People argued that the entry was justified by the community caretaking exception to the warrant requirement based on the circumstances existing at the time. Those circumstances were: Officer McAvoy was shown by one of the victims that the perpetrator of a serious felony had gone to the residence; the front door was locked and through a front window of the residence Officer McAvoy could see a portion of a body lying face down on the floor; Officer McAvoy knew that a knife was involved in the attempted robbery but from his vantage point could not see any blood or knife wounds; there was no response from anyone in the residence to Officer McAvoy’s yelling and banging on the door; attempts to get a telephone number for the residence were unsuccessful; the back door was unlocked; after identifying themselves and getting no response, Officer McAvoy and other officers entered the residence. Upon entering, the officer observed that appellant appeared unconscious and was disoriented when the officers attempted to rouse him; appellant was wearing a black baseball cap with an “L.A.” logo and a gray hooded sweatshirt was next to him; and while examining the sweatshirt Officer McAvoy observed a knife on the floor.
The trial court denied the motion. The court found that Officer McAvoy’s actions were objectively reasonable based on the information known or available to him at the time of the entry. He observed the body from appellant’s front porch, a place he had a right to be because it was open to the public. Given that the television was on, the front door was open, but nobody was responding to the loud yelling and banging on the screen door, further investigation on Officer McAvoy’s part was reasonable. He did not kick in the door, but instead tried to obtain a phone number for the address. Failing that, he walked down the driveway without having to go through any gates or fences and found an unlocked back door. Having gotten no response to the announcement of his presence, Officer McAvoy entered, roused appellant, and saw items connected to the attempted robbery.

DISCUSSION
I. The Trial Court Properly Denied Appellant’s Suppression Motion
Appellant contends the trial court erred in denying his suppression motion because the “community caretaking function” discussed in People v. Ray (1999) 21 Cal.4th 464 (Ray) did not justify the warrantless entry and search of his residence. He makes a number of arguments that the evidence seized was inadmissible under the Fourth Amendment of the United States Constitution.
In ruling upon a motion to suppress, the trial court judges the credibility of the witnesses, resolves any conflicts in the testimony, weighs the evidence, and draws factual inferences. (People v. Williams (2006) 145 Cal.App.4th 756, 761.) We will uphold the trial court’s express or implied findings on such matters if they are supported by substantial evidence, but we independently review the application of the relevant law to the facts. (People v. Alvarez (1996) 14 Cal.4th 155, 182.)
The key inquiry under the Fourth Amendment is the reasonableness of the officer’s actions. (People v. Wilson (1997) 59 Cal.App.4th 1053, 1063.) A warrantless entry into a residence is presumptively unreasonable. (People v. Bennett (1998) 17 Cal.4th 373, 384.) The prosecution bears the burden of justifying the search by proving the search fell within a recognized exception to the warrant requirement and thus was reasonable. (People v. James (1977) 19 Cal.3d 99, 106.) “Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place.” (New Jersey v. T. L. O. (1985) 469 U.S. 325, 337.)
Contrary to appellant’s contention, this case is governed by Ray, supra, 21 Cal.4th 464, and we conclude that Officer McAvoy’s entry into appellant’s residence was justified under the community caretaker exception to the warrant requirement. The officer in Ray received a dispatch that there was an open door at a certain address and the person reporting (PR) “‘says that the door has been open all day and it’s all a shambles inside. It’s unknown if anyone’s home but the PR doesn’t think so. The PR can be contacted if necessary.’” (Id. at p. 468.) When the officers arrived, the front door was open approximately two feet and, looking inside, the front room looked ransacked. The officers knocked and loudly announced their presence but received no response and “[i]ncreasingly concerned, they entered to conduct a security check ‘to see if anyone inside might be injured, disabled, or unable to obtain help’ and to determine whether a burglary had been committed or was in progress. They found no one inside but did observe a large quantity of suspected cocaine and money in plain view.” (Ibid.) The officers left, obtained a search warrant, and pursuant to the warrant seized evidence that defendant possessed more than 10 kilograms of cocaine. (Id. at p. 469.) The trial court found no exigent circumstances and granted the motion to suppress, but the Court of Appeal reversed, finding the warrantless entry was justified by a reasonable suspicion, if not probable cause, to support exigent circumstances. (Id. at pp. 469–470.)
The Supreme Court affirmed the judgment of the Court of Appeal. The lead opinion in Ray, supra, 21 Cal.4th at pages 467 through 480, signed by three justices, justified a warrantless search of the residence as a reasonable exercise of the “community caretaking functions” performed by police officers, in this case rendering emergency aid. The concurring opinion, signed by three different justices, justified the search based on the “exigent circumstances” exception to the warrant requirement finding the police officers’ actions were justified “because they reasonably believed that a burglary was in progress or that a burglary had occurred and there might be occupants in need of assistance inside the residence.” (Id. at p. 481.) Both exceptions permitted police officers to enter a home without a warrant to see if residents needed assistance given the possibility of a burglary.
At the time Officer McAvoy and his colleagues entered appellant’s residence, they were aware of the following information: the perpetrator of a reported crime involving a knife was last seen entering the yard of the residence; Officer McAvoy was unsuccessful in getting the attention of anyone in the residence despite banging loudly on the front door and yelling through the screen door; and a body was observed through a front window lying on the floor, unresponsive to his banging and yelling. These “specific, articulable facts indicating the need for ‘“swift action to prevent imminent danger to life”’” justified Officer McAvoy’s entry without a warrant to render emergency aid and assistance to a person he reasonably believed to be in distress and in need of that assistance. (Ray, supra, 21 Cal.4th at pp. 470, 472, 473.)
The trial court here did not distinguish the exigent circumstances doctrine from the community caretaking exception and focused on the reasonableness of the officer’s conduct.^[2] The appellate court reviews the judgment of the trial court, not the rationale. (People v. Mason (1991) 52 Cal.3d 909, 944.) As a general rule, if the result reached below was correct on any theory, the appellate court will affirm the judgment, whether the trial court’s reasons were correct or not. (People v. Zapien (1993) 4 Cal.4th 929, 976.)
Appellant contends that Officer McAvoy’s actions were unreasonable because he made no effort to contact appellant’s sister at the rear house. But we disagree based on the facts known to Officer McAvoy when he entered the residence. (People v. Panah (2005) 35 Cal.4th 395, 465.) The key inquiry here is not whether Officer McAvoy did everything he possibly could have done short of entering the residence, but whether his conduct was reasonable. It was reasonable for Officer McAvoy to enter the residence upon seeing someone in an unresponsive state who could have been a victim of the person armed with a knife seen entering the immediate area, or who required aid for an unrelated reason. As the trial court noted: “Obviously the officer . . . was unable to tell whether the individual was alive or the individual was dead. Did not see any wounds, but could only see half of the body. An officer would be terribly derelict in his duty, presented with what appears to be a dead body on a floor, if he said, okay, well, nobody is answering the door, so I’m going to go back to the station . . . . That would be a horrible dereliction of duty. He needed to further investigate to try and find out what condition this possible victim is in.” Officer McAvoy did not need “ironclad proof” of a likely serious life-threatening injury to invoke the emergency aid exception to the warrant requirement, but merely “‘“an objectively reasonable basis for believing”’” that medical assistance was needed, or persons were in danger. (People v. Troyer (2011) 51 Cal.4th 599, 602.)
Appellant’s assertion that a person should be safe from unreasonable official intrusion into their home simply because they fell asleep on the floor as opposed to a couch is similarly unavailing because the “solicitude for privacy in the home” is balanced with “the need for effective law enforcement.” (People v. Camacho (2000) 23 Cal.4th 824, 826.) Appellant overlooks the key facts that Officer McAvoy could not ignore, namely, a knife wielding suspect was seen in the immediate area and the person within was totally unresponsive to all attempts to get his attention. “The possibility that immediate police action will prevent injury or death outweighs the affront to privacy when police enter the home under the reasonable but mistaken belief that an emergency exists. [Citation.]” (People v. Troyer, supra, 51 Cal.4th at p. 606.)
Appellant contends that seizure of the knife was illegal because it was not in plain view until Officer McAvoy lifted up the sweatshirt. But this ignores how the situation evolved. Officer McAvoy properly entered appellant’s home under the community caretaker exception to assist appellant. He resolved the potential emergency by reviving appellant and determining no further aid was required. At that point, Officer McAvoy noticed that appellant’s physical description and clothing matched that of the attempted robbery suspect—appellant was around 18 to 21 years of age, Hispanic, and was wearing a black baseball cap with the logo “L.A.” on it, and a gray sweatshirt was nearby. The sweatshirt and baseball cap, items of evidence linking appellant to the attempted robberies were in “plain view” and properly seized. (People v. Rogers (2009) 46 Cal.4th 1136, 1156.) The physical act of lifting and securing the properly seized sweatshirt revealed the presence of the knife on the floor. “It would be absurd to say that an object could lawfully be seized and taken from the premises, but could not be moved for closer examination.” (Arizona v. Hicks (1987) 480 U.S. 321, 326.) The seizure of items in plain view is authorized where the searching officers observe the object from a lawful vantage point and the object’s incriminating nature is “immediately apparent.” (Horton v. California (1990) 496 U.S. 128, 136.) Having lawfully entered the residence to render aid to appellant and seized the sweatshirt, the incriminating nature of the knife observed from a “lawful vantage point” was immediately apparent to Officer McAvoy and its seizure was also authorized.

II. Substantial Evidence Supported the Conviction for the Attempted Robbery of Lauren K.
Appellant contends that the evidence was insufficient to support his conviction of attempted robbery of Lauren K., arguing that there was no “attempted taking” from her.
When a criminal conviction is challenged as lacking evidentiary support, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) We must presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We do not reweigh the evidence and will not reverse a judgment even if a different verdict could reasonably have been reached. (People v. Proctor (1992) 4 Cal.4th 499, 529.) The testimony of a single witness is sufficient to support a conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) An attempted robbery requires the specific intent to commit robbery and a direct yet ineffectual act that went beyond mere preparation toward its commission. (People v. Lindberg (2008) 45 Cal.4th 1, 24.) A defendant’s intent is rarely susceptible of direct proof, and may be inferred from the facts and circumstances surrounding the offense. (People v. Ramos (2004) 121 Cal.App.4th 1194, 1207–1208.)
Substantial evidence supports the jury’s finding that appellant’s actions demonstrated his intent to rob both David C. and Lauren K., and his attempt to do so. The evidence showed that appellant demanded marijuana from both David C. and Lauren K., followed both of them while continuing to demand marijuana, pulled a knife and pointed it at both of them. David C. testified that appellant then made a demand for the contents of their pockets. Lauren K. testified that this was the first time someone tried to take something from her by force. Appellant acknowledges that the element of fear as to Lauren K. was proven but contends that he was merely panhandling. We disagree.
Appellant’s contention that he ignored Lauren K. (foregoing a potential source of marijuana and other loot) and made a conscious decision to rob only David C. at knifepoint is not reasonable because he had made no distinction between David C. and Lauren K. while following them and demanding marijuana. A more reasonable inference that may be drawn from this evidence is that appellant had the requisite intent and took the necessary steps to rob both David C. and Lauren K.

III. The Trial Court Did Not Abuse Its Discretion in Sentencing Appellant
Appellant contends that the trial court abused its discretion when it imposed the upper term on count 1, and a consecutive term on count 2. Respondent contends, and we agree, that appellant forfeited his claim by failing to object to the trial court’s ruling. It is well established that the failure to state reasons or the use of improper circumstances for a sentencing decision is not a jurisdictional error and is forfeited by the defendant’s failure to object below. (People v. Brown (2000) 83 Cal.App.4th 1037, 1041–1042, citing People v. Scott (1994) 9 Cal.4th 331, 355 (Scott).) Our Supreme Court held that the forfeiture doctrine applies to “claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.” (Scott, supra, at p. 353.) In Scott, the defendant claimed that the trial court abused its discretion in aggravating his sentence because the factors cited in support of such choices were inapplicable, duplicative, and improperly weighed. In concluding that the defendant had forfeited his claim on appeal, the court noted that “fact-specific errors in the court’s statement of reasons are not readily susceptible of correction on appeal. The reviewing court cannot substitute its reasons for those omitted or misapplied by the trial court, nor can it reweigh valid factors bearing on the decision below.” (Id. at p. 355.) Thus, “complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.” (Id. at p. 356.)
On appeal, appellant essentially disagrees with the trial’s court’s application of aggravating and mitigating factors. Under Scott, supra, 9 Cal.4th at page 356, we are compelled to conclude that appellant has forfeited his argument on appeal.
Notwithstanding appellant’s forfeiture, we are satisfied that the trial court did not abuse its discretion in imposing the upper term. The trial court’s sentencing decision is reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) “The trial court’s sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’” (Ibid.) “[A] trial court will abuse its discretion under the amended scheme if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.” (Ibid.) The trial court may rely on criteria reasonably related to the decision being made. (Cal. Rules of Court, rules 4.408, subd. (a), 4.421, subd. (a).) A single factor or circumstance in aggravation is sufficient to justify imposition of an upper term. (People v. Earley (2004) 122 Cal.App.4th 542, 550.) Similarly, a single factor in aggravation will justify consecutive sentences. (People v. Osband (1996) 13 Cal.4th 622, 728–729.)
Appellant’s contention that the trial court improperly made dual use of the same reasons to impose the upper term in count 1, and a consecutive term in count 2 is unavailing because the trial court properly relied on four aggravating factors that were amply supported by the evidence in the record. First, the crime involved the threat of great bodily harm. (Cal. Rules of Court, rules 4.421(a)(1), 4.425(b).) Second, appellant “stalked” his victims indicating the crime involved planning. (Cal. Rules of Court, rules 4.421(a)(8), 4.425(b).) Third, there were two victims in this case. (Cal. Rules of Court, rules 4.421(c), 4.425(b).) Fourth, appellant had a poor personal history including drug and alcohol use, lack of employment, dropping out of school, and lack of family guidance. (Cal. Rules of Court, rules 4.421(c), 4.425(b).)
The trial court is not required to explain its rejection of a claimed factor in mitigation and appellant’s contention has no merit. (People v. Downey (2000) 82 Cal.App.4th 899, 919.) We find no abuse of discretion in the trial court’s imposition of sentence.

IV. The Judgment Should Be Modified to Credit Appellant with 312 Days of Presentence Custody Credit
Appellant contends that the trial court should have recognized one additional day of actual presentence custody credit, or 208 days of actual credit rather than the 207 that was granted. He also contends that court should have awarded him 50 percent presentence conduct credits of 104 days, rather than the 31 days of conduct credits actually granted under a 15 percent calculation. Respondent agrees.
The failure to award presentence custody credits for actual time served was an unauthorized sentence that is subject to correction on appeal. (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) Defendants are entitled to credit for all days in custody, including partial days. (People v. Browning (1991) 233 Cal.App.3d 1410, 1412.)
Appellant was arrested on November 15, 2009. He was sentenced on June 10, 2010. He was entitled to 208 days of actual presentence custody credit.
Appellant is also entitled to conduct credits pursuant to section 4019. Section 2933.1, subdivision (a) establishes a 15-percent limitation on conduct credits for a person convicted of a violent felony offense set forth in section 667.5, subdivision (c), a provision that does not specifically include attempted robbery. The 15-percent limitation was incorrectly applied in this case.
Accordingly, appellant is entitled to the following custody credits: 208 days of actual custody credit and 104 days of conduct credit for a total of 312 days.

DISPOSITION
The judgment is modified to award appellant 312 days of total presentence custody credits (208 days of actual custody plus 104 conduct days). As modified, the judgment is affirmed. The superior court shall direct its clerk to amend the abstract of judgment to reflect 312 days of total presentence custody credits and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.
DOI TODD
We concur:

____________________________, P. J.
BOREN

____________________________, J.
ASHMANN-GERST








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