P. v. Harmon

Filed 10/2/07 P. v. Harmon CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Anita H. Dymant, Judge. Affirmed.

________

David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

_________

Shane Harmon appeals from the judgment entered after he pleaded no contest to possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1))^[1] and unlawful possession of ammunition. ( 12316, subd. (b)(1).) He contends that the trial court erred by denying his motion to suppress the evidence found when police conducted a protective sweep of the house where Harmon was arrested. We affirm the judgment.

BACKGROUND

On the evening of August 18, 2005, two police officers on patrol saw Jose Luis Ramos, Jr. illegally drinking beer in public in violation of the Los Angeles Municipal Code. The officers stopped their patrol car near Ramos and called out to him. One officer recognized Ramos from an earlier arrest which resulted in his conviction of illegal possession of a handgun; the officer also knew that Ramos was on parole. When Ramos saw the officer, he dropped his beer and ran toward a nearby residence that the officer knew to be associated with gang activity. Although the officer ordered Ramos to stop, Ramos ran to the house and entered the front door. As he ran, he held his right hand over his pants pocket. As Ramos ran up the stairs to the houses front porch, the officer saw the handle of a handgun protruding from Ramos pocket. Ramos briefly took the gun out of his pocket, then stuck it back in before entering the residence.

The officers kept watch on the house awaiting backup but could not see inside the house through drawn window curtains. Ramos started to exit by a side door but when he saw one of the officers, he abandoned the effort. After police backup arrived, Sacorro Apodaca and her relative, Ernesto Lopez, exited the house. Apodaca told officers that she rented the residence and lived there, that she had given Harmon permission to stay in the back bedroom about a month earlier, and that she still had furniture and clothing stored in that bedroom. When asked who was still in the house, Apodaca identified four individuals, including Harmon. Using a patrol cars loudspeaker, police ordered everybody out of the house in both English and Spanish. Although people peeked out from behind the curtains, and one occupant opened and closed the front door twice without emerging, no one came out. Using a telephone number that Apodaca provided, a police sergeant spoke with someone in the house and told other officers that several individuals would soon emerge. After a further wait and a second phone call, six people exited the house, including Ramos and Harmon. Ramos was wearing different clothing than when he had entered the house. The police searched them all for weapons but found none.

Harmon told officers that no one else was in the house and that he stayed in the back bedroom of the house. Police officers, still concerned that someone might be inside, announced their presence, asked anyone in the house to come out and, when no one emerged, entered to search for additional persons. The police limited their search to areas where someone might be concealed. They found no more people but in the back bedroom in plain view they found the .380-caliber semiautomatic handgun that Ramos had been carrying, a loaded magazine, ammunition for a nine-millimeter handgun, and a revolver. In the front bedroom, police found a pellet gun under the bed.

After police completed their initial search, Apodaca signed a written consent to a full search of the entire house. In the back bedroom, in addition to what they had seen earlier, police recovered a police scanner and Harmons wallet. In the front bedroom, along with the pellet gun, police recovered a .22-caliber rifle and a bullet-proof vest.

The Los Angeles County District Attorney filed an information charging Harmon with being a felon in possession of a firearm in violation of section 12021, subdivision (a)(1), and with possession of ammunition by a person described in section 12021, in violation of section 12316, subdivision (b)(1). The information included special allegations that the charged offenses were committed for the benefit of a street gang pursuant to section 186.22, subdivision (b)(1)(A); that Harmon had one prior strike conviction for a serious or violent felony pursuant to section 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d); and that Harmon had served four prior prison terms pursuant to section 667.5, subdivision (b). Harmon pleaded not guilty and denied all allegations.

At the preliminary hearing, Apodaca testified that for almost four years she had rented the subject house, and that recently she had let Harmon and Lopez rent the back bedroom. She kept some of her brothers furniture and clothing in the back bedroom but never went into that room after Harmon and Lopez moved in, although she felt she had a right to do so. Without her permission, Lopez allowed numerous people into the house while Apodaca was at work, and Apodaca had complained to him about this. She did not know how many people were in the house at the time of the police searches.

Harmon moved to dismiss the gang allegations and to suppress the evidence that police gathered in their two searches of Apodacas residence. The trial court dismissed the gang allegations for insufficient evidence but denied Harmons motion to suppress evidence, finding that the officers had specific articulable reasons justifying the protective search and the original entry into the house.^[2] Harmon voluntarily waived his trial rights, pleaded no contest to the charges that he possessed a firearm and ammunition, and admitted a prior conviction. The trial court dismissed the strike allegation in the interest of justice and granted the prosecutions motion to dismiss the prior prison term allegations. The court sentenced Harmon to a total of three years and four months in prison on the two charges and levied various statutorily mandated fines and assessments. Harmon timely appealed. ( 1237, subd. (a).)

DISCUSSION

Harmon contends that the trial court erred when it denied his motion to suppress the evidence of firearms and ammunition that police uncovered in their searches of Apodacas house.^[3] He maintains that the searches violated his constitutional rights. We disagree.

On appeal from a motion to suppress evidence, all presumptions are in favor of the trial courts factual findings, whether express or implied, where supported by substantial evidence in determining whether police officers protective sweep of a defendants home was reasonable under the Fourth Amendment. (People v. Ledesma (2003) 106 Cal.App.4th 857, 862 (Ledesma).) Pursuant to article I, section 28, subdivision (d) of the California Constitution, we evaluate the legality of this police conduct under federal constitutional standards. [Citation.] (Id. at pp. 862-863; see also People v. Woods (1999) 21 Cal.4th 668, 674.) We independently review the trial courts selection of the applicable rule of law and its application of that rule to the facts. (See People v. Ayala (2000) 23 Cal.4th 225, 255.)

Police officers may conduct a protective sweep of an arrestees dwelling if the officers have reasonable suspicion based on articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. (Ledesma, supra, 106 Cal.App.4th at p. 863, quoting Maryland v. Buie (1990) 494 U.S. 325, 334 (Buie).) Police officers have a legitimate interest in taking steps to assure themselves that the house in which a suspect is being, or has just been arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack. (Buie, at p. 333.) The United States Supreme Court has repeatedly held that in determining the existence of reasonable suspicion, courts must evaluate the totality of the circumstances on a case-by-case basis to see whether the officer has a particularized and objective basis for his or her suspicion. [Citation.] (Ledesma, supra, 106 Cal.App.4th at p. 863.) Officers at the scene may draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. [Citations.] (Ibid.) The high court has made clear that reasonable suspicion is an abstract concept, not a finely-tuned standard[.] [Citations.] (Ibid.) The Court has also warned lower courts against unrealistic second-guessing of police officers acting in a swiftly developing situation[.] (Id. at p. 864.)

We find that sufficient evidence supports the trial courts conclusion that articulable facts justified the police officers reasonable suspicion that Apodacas house might still have contained an armed and dangerous individual even after Harmon, Ramos, and the others emerged. Given the uncertainty as to who was in the house together with the record of gang activity at that location, the officers had reasonable grounds for concern that there were still people in the house, that those people might be gang members, and that one of them might have access to Ramos gun. Under these circumstances, the police were justified in conducting the initial search. (See Ledesma, supra, 106 Cal.App.4th at pp. 865-866.)

Harmon cites People v. Celis (2004) 33 Cal.4th 667 (Celis) and People v. Ormonde (2006) 143 Cal.App.4th 282 to support his argument that the officers lacked a reasonable belief based on articulable facts to justify the protective sweep. These authorities, however, do not aid him.

In Celis, the defendant was part of a drug trafficking ring that transported and sold cocaine concealed inside large truck tires. (Celis, supra, 33 Cal.4th at pp. 671-673.) Police followed the defendant to his home and witnessed him rolling a truck tire from his house to a waiting co-conspirator. (Id. at p. 672.) The police detained the defendant, and because a detective had observed that the defendant lived with his wife and possibly a male juvenile, the police entered the defendants home to determine if there was anyone inside who might endanger their safety. (Ibid.) They found no one, but in a wooden box large enough to conceal a person they found wrapped packages of cocaine. (Id. at pp. 672-673.)

Our Supreme Court held that the facts in Celis did not create reasonable suspicion of danger to police justifying a protective sweep of the defendants home. The Court reasoned that because officers had not been keeping track of who was in the house, they had no knowledge of the presence of anyone in defendants house, and when they entered the house to conduct a protective sweep, they did so without any information as to whether anyone was inside the house. (Celis, supra, 33 Cal.4th at p. 679.) The Court further noted that there was no indication that the defendant or his co-conspirator were armed when police detained them (ibid.), and that police had found no weapons during earlier investigations of the truck-tire drug trafficking ring. (Id. at p. 672.) Considering all these facts together, the Supreme Court held that the officers had no grounds for reasonable suspicion of the presence of persons who threatened the officers safety.^[4] (Id. at pp. 679-680.)

Taken out of context, language in Celis could be read to indicate that police may not conduct a protective sweep of a home if they have no knowledge of the presence of anyone in that dwelling and no information as to whether anyone was inside the house. (Celis, supra, 33 Cal.4th at p. 679.) The Court made clear, however, that [a] protective sweep of a house for officer safety as described in Buie[ , supra, 494 U.S. at p. 327], does not require probable cause to believe there is someone posing a danger to the officers in the area to be swept[,] but can be justified merely by a reasonable suspicion that the area to be swept harbors a dangerous person. (Id. at p. 678.) As we have discussed, based on the totality of the circumstances in this case and unlike those in Celis, the police had grounds for reasonable suspicion that unknown individuals, potentially gang members, might be in Apodacas home with access to a gun.^[5]

In People vOrmonde, supra, 143 Cal.App.4th at page 294, the court held a protective sweep unconstitutional where police, responding to a domestic violence incident, conducted a protective sweep even though the record did not show that the officer who conducted the sweep actually suspected that a person was inside [the domicile], or that he had any grounds for suspecting as much[.] In addition, the officers only justification for a suspicion of danger was his general experience that domestic violence situations often involve danger. (Id. at p. 286.) Here, by contrast, the police had a particularized basis for suspecting danger in confronting a situation in which an unknown number of persons, possibly gang members, might still be inside a residence which likely contained a gun, possibly loaded.

Harmon also contends that Apodacas consent to the search of her entire home was invalid because it was tainted by the officers protective sweep. Because we have held that the protective sweep was not unlawful, we need not address Harmons arguments regarding Apodacas consent and the second search.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P. J. JACKSON, J.^*

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

^[1] All undesignated statutory references are to the Penal Code.

^[2] As the court summarized police testimony at the preliminary hearing, The officer observes defendant Ramos with a handgun running into the house. He knows Mr. Ramos to be a gang member. He knows him from a prior contact that also involved firearms. He knows its a known gang location. The officers take several steps to get people to come out of the house. [] They are told by Miss Apodaca, who says she is the resident of the house, that theres only four more people in the house after two phone calls, and it was during the second phone call six additional people exit the house. [] So I thinkand they are all searched, and the firearm that [the police officer] had observed is not recovered. So at that point, given all these factors, I think it was reasonable for the officers with information that they had at the time to think that certainly . . . the gun was still in the house, and also it was probable that someone armed and dangerous was still in the house. For that reason I think the first search was justified.

^[3] The Attorney General does not challenge Harmons implicit claim that he has standing to challenge the protective sweep of Apodacas home based upon his rental of the back bedroom.

^[4] The Celis Court expressly declined to determine whether police can make a protective sweep of an arrestees home after the arrestee is arrested outside of his home. (Celis, supra, 33 Cal.4th at p. 679.) In People v. Maier (1991) 226 Cal.App.3d 1670, however, the court held that a sweep after an arrest outside a dwelling deserved no different treatment from a sweep after an arrest inside a dwelling, because [a]n accomplice on another floor is surely no more dangerous than one on the other side of a window, or a door. (Id. at p. 1675.) Nor does Harmon contend that there should be any such distinction.

^[5] We note that although Harmon argues that the police had no reason to suspect that anyone remained in Apodacas home after Harmon, Ramos, and the other four individuals left because Harmon told police there were no more people inside, the peeking through the windows and opening and closing of the front door ceased, and there were no other signs of activity in the house, a person intending harm to police or others at the scene often might lay low for a time to gain the element of surprise. Nor did the police have any strong reason to credit Harmons statement.

^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)