P. v. Benavides
Filed 5/7/08 P. v. Benavides CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR P. BENAVIDES, Defendant and Appellant. | D050233 (Super. Ct. No. SCD197977) |
Appeal from a judgment of the Superior Court of San Diego County, William H. Kennedy, Judge. Reversed.
After the trial court denied a motion to suppress evidence (Pen. Code,[1] 1538.5), a jury convicted Arthur P. Benavides of assault with a firearm ( 245, subd. (a)(2); counts 1 & 3), making a criminal threat ( 422; counts 4 & 5), dissuading a witness by force or threat ( 136.1, subd. (c)(1); count 6), possession of a firearm by a felon ( 12021, subd. (a)(1); count 7), and possession of ammunition by a felon ( 12316, subd. (b)(1); count 8). As to count 2, the jury found Benavides guilty of a lesser included offense of brandishing a firearm ( 417). The court found all prior convictions true as alleged. The court sentenced Benavides to a total prison term of 19 years and eight months, with credit for time served of 278 days.
Benavides's sole contention on appeal is that the trial court erred in denying his motion to suppress evidence. He contends any exigent circumstances justifying a protective sweep evaporated once police took him into custody. Benavides further argues his mother did not have apparent authority to consent to a search of the converted garage. We reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND[2]
On April 1, 2006, San Diego police officers responded to a report of a man making threats with a loaded gun at the 850 block of Escuela Street. Witnesses to the incident informed the officers that Benavides had gone into the residence across the street at 851 Escuela Street. About 10 to 12 officers set up a perimeter around that property, which was surrounded by a chain link fence. Officers gained access to the backyard by cutting the lock securing the gate. Then they requested everyone in the house to exit and removed them from the property. An older woman, who officers believed was the owner of the house and was later identified as Benavides's mother,[3]refused to leave the house because she was sick. An officer requested her consent to enter the house, but she would only allow one officer to enter. Officers decided they did not want only one officer entering the house for safety reasons and allowed Benavides's mother to remain inside.
While officers proceeded to clear the backyard, they came to a locked converted garage. While officers discussed how to gain access into the garage, Benavides walked out of the garage. He was taken into custody. Officers did not find any firearms on Benavides, who informed them that his son was also inside the converted garage. His son soon exited the garage and was also taken into custody. He was unarmed as well. The police conducted a protective sweep of the garage to make sure no one else was inside.
Then one of the officers asked Benavides's mother if they could search the house for a weapon. She agreed. At some point during the search, Benavides joined the officers inside the house and directed them to a pellet gun in one of the bedrooms. The officers did not believe the pellet gun was used to threaten the victims. While the officers continued their search, they were informed that an officer found a revolver in the garage.
Before trial, Benavides moved to suppress evidence found in the converted garage In his moving papers, Benavides argued officers violated his Fourth Amendment rights because the police searched the garage without a warrant or consent. At the hearing on the motion, Benavides testified the garage was about 30 feet away from the house in the backyard. He stated that he lived in the garage, which he had converted into a studio apartment. Benavides accessed the converted garage through the gate in the backyard. He also paid between $300 and $400 in monthly rent to his mother. The garage did not have a kitchen or bathroom, and Benavides used the bathroom in his mother's house.
Detective Felix Aguirre testified he was the officer that spoke with Benavides's mother and received her permission to search her house for weapons. He never had discussions with Benavides's mother about searching the converted garage. Detective Aguirre stated he was not aware of whether anyone had obtained consent to search the garage and he himself did not obtain consent.
After the hearing, the court denied the motion to suppress. The court believed this was a classic case of fresh pursuit, which provided the exigency to enter the property in order to contain the suspect and any weapon. In light of the situation, which put people at potential risk, the court found there was sufficient exigency to justify the officers' search for the gun.
DISCUSSION
On appeal, Benavides contends the trial court erred in denying his section 1538.5 motion because any exigent circumstances justifying the protective sweep evaporated once he was placed in custody. He argues no exigent circumstances existed to justify a warrantless search of the converted garage to gather evidence. He further argues the search of his garage apartment was unconstitutional because his mother did not have apparent authority to consent to a search of the garage that was detached from the house.
I
MOTION TO SUPPRESS EVIDENCE
When we review a trial court's ruling on a suppression motion under section 1538.5, we defer to the trial court's factual findings, express or implied, where supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) Once the facts are established, however, in determining whether a search or seizure is reasonable under the Fourth Amendment, we exercise independent judgment. (Ibid.)
It is well settled under the Fourth Amendment that a warrantless search inside the home is presumptively unreasonable unless it falls within one of a few specifically established set of exceptions. (Payton v. New York (1980) 445 U.S. 573, 586.) One such exception is exigent circumstances, in which " ' "the exigencies of the situation" make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.' " (People v. Seminoff (2008) 159 Cal.App.4th 518, 528.) Here, we find, and the Attorney General concedes, exigency ceased once Benavides was taken into custody and the officers conducted a protective sweep of the converted garage.
Another recognized exception to the Fourth Amendment's prohibition against warrantless searches is a search based upon consent. (Illinois v. Rodriguez (1990) 497 U.S. 177, 181.) That consent may be given by the party later challenging the constitutionality of the search. (People v. Superior Court (2006) 143 Cal.App.4th 1183, 1198.) The law also permits a search based upon consent by a person with apparent authority. (Id. at p. 1199.) The prosecution has the burden of demonstrating the reasonableness of the officer's belief in the apparent authority of the person giving consent. (Ibid.)
We recognize the trial court did not expressly make factual findings on whether Benavides's mother had authority to consent to the search of the converted garage. However, in our independent evaluation of the record, nothing gives rise to the mother's apparent authority to consent to the search. Detective Aguirre requested the mother's consent to search her house, not the garage, for weapons. He testified that he never had any discussions with Benavides's mother about searching the converted garage. When asked if he knew whether anyone else had obtained consent to search the garage, Detective Aguirre responded, "I don't know if anybody had. I didn't." The record shows the officer did not believe he obtained Benavides's mother's consent to a search of the converted garage. Therefore, the trial court erred in denying Benavides's motion to suppress the unlawfully seized evidence.
II
THE TRIAL COURT'S ERROR WAS NOT HARMLESS
BEYOND A REASONABLE DOUBT
An admission of unlawfully seized evidence is subject to harmless error analysis. (People v. Kraft (2000) 23 Cal.4th 978, 1036.) The beneficiary of the error must prove beyond a reasonable doubt that the error did not contribute to the verdict obtained, and the reviewing court must be able to declare a belief that the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
Here, the physical evidence of the revolver and the bullets was significant to the prosecution's case. Also admitted into evidence was a pellet gun designed to look like a revolver. While there was testimony that Benavides used a revolver, there was also testimony that the pellet gun and revolver looked the same from a distance. Discrepancies existed as to exactly what the alleged firearm looked like and how it was loaded. Based on the record, we cannot say the unlawfully admitted evidence did not contribute to the verdict obtained. The error in admitting the evidence was not harmless beyond a reasonable doubt.
DISPOSITION
The judgment is reversed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
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[1] Statutory references are to the Penal Code.
[2] Since the issue on appeal is limited to the denial of the motion to suppress evidence, the facts relevant to our discussion are derived from the suppression motion documents and the record of the hearing on the motion.
[3] In the record, Benavides's mother is referred to as the "grandmother" of Jesus, Benavides's son.
