P. v. Kemblowski

Filed 8/13/08 P. v. Kemblowski CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Jr., Judge.

James F. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant, Mark Calvin Kemblowski, pled no contest to four counts of being a felon in possession of a firearm (counts 1-4/Pen. Code, 12021, subd. (a)(1)), three counts of being a felon in possession of ammunition (counts 5-7/Pen. Code, 12316, subd. (b)) and one count of being a felon in possession of body armor (count 8/Pen. Code, 12370, subd. (a)). Kemblowski also admitted allegations that he had three prior convictions within the meaning of the three strikes law (Pen. Code, 667, subds. (b)-(1)).

On August 16, 2007, the court struck two of Kemblowskis prior convictions and sentenced him to an aggregate 10-year term, the upper term of six years on count 1, a consecutive 16-month term on counts 2, 3, and 4, and concurrent four-year terms on counts 5 through 8. On appeal, Kemblowski contends the court erred when it denied his motion to suppress. We will affirm.

FACTS

On June 17, 2006, Kern County Sheriff deputies were summoned to Kemblowskis house in Rosamond by his wife, Ann Higashiyama, who reported that Kemblowski was walking around naked and vandalizing their residence. The deputies arrested Kemblowski and, after receiving permission from Higashiyama, searched the residence and found ammunition, a body armor vest, and several firearms.

On July 31, 2006, Kemblowski filed a motion to suppress.

On August 16, 2006, at a hearing on the motion, Higashiyama testified that on June 17, 2006, she called sheriff deputies to report circumstances involving Kemblowski. She told the deputies who responded that she thought some firearms were located in the master bedroom where Kemblowski had been sleeping. She also told them that she and Kemblowski were having marital problems and that Kemblowski slept in the master bedroom and she slept in another room. Nevertheless, Higashiyama had access to the garage and entire house, including the master bedroom and she kept many personal items and clothing in that bedroom and in the master bathroom. Higashiyama gave the deputies permission to search the residence including the garage.

Kemblowski kept his personal property in the master bedroom, in another bedroom, and in the garage. Although Higashiyama told the deputies that Kemblowski locked himself in the master bedroom, he did not do it often and he did not keep his property locked in there.

Approximately 15 to 30 minutes after the deputies arrived, while Higashiyama was talking to the deputies, Kemblowski came out of the house onto the porch. The deputies asked him to step out of the house and he refused.

Sheriffs Deputy Richard Garrett testified that he searched Kemblowskis residence. Garrett located two nine-millimeter handguns in the master bedroom, a .45-caliber handgun and a military style body armor vest in another room, and a .22-caliber rifle on the porch. In the garage, Garrett found a magazine of ammunition for one of the guns and two gun cleaning kits. Higashiyama told Garrett that Kemblowski slept in the master bedroom and she slept in another room. She also told him that he had locked himself in the master bedroom.

While the deputies were there, Kemblowski came out on the porch unarmed and yelled a profanity. Two deputies drew their guns and took Kemblowski to the ground. They then handcuffed him and placed him in a patrol car. Higashiyama consented to a search of the house after the deputies placed Kemblowski in the patrol car. Higashiyama told Garrett she wanted him to remove anything that was illegal from the house.

On August 28, 2006, the court issued an order denying Kemblowskis suppression motion.

DISCUSSION

Kemblowski contends his wifes consent to search his residence did not authorize the deputies to search the master bedroom and garage because the People did not meet their burden of showing that his wife had actual or apparent authority over these two locations. He also contends the deputies prevented him from expressly objecting to the search of the house by placing him in the back of a patrol car. Thus, according to Kemblowski, the court erred when it denied his motion to suppress. We will reject these contentions.

An appellate courts review of a trial courts ruling on a motion to suppress is governed by well-settled principles. [Citations.] [] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] The [trial] courts resolution of each of these inquiries is, of course, subject to appellate review. [Citations.] [] The courts resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, ... is also subject to independent review. (People v. Ayala (2000) 23 Cal.4th 225, 255.)

Warrantless searches are presumptively unreasonable absent exigent circumstances. (United States v. Karo (1984) 468 U.S. 705, 707; People v. Bravo (1987) 43 Cal.3d 600, 609.) The Fourth Amendments prohibition against the warrantless search of a home does not apply where proper consent to the search has been given. Consent is a recognized exception to the warrant requirement. (Illinois v. Rodriguez (1990) 497 U.S. 177, 181; People v. Oldham (2000) 81 Cal.App.4th 1, 9.)

Where a residence is occupied by more than one person, a search is reasonable if consent is given by one of the joint residents who possess common authority or other sufficient relationship to the premises or effects to be inspected. (United States v. Matlock (1974) 415 U.S. 164, 171.) The authority justifying third party consent does not rest upon the law of property, but rather on mutual use of the property by persons having joint access or control for most purposes. (Id. at p. 171, fn. 7.) Co-occupants with joint access or control to property assume the risk police may be permitted to search by a co-occupant sharing the property. (People v. Bishop (1996) 44 Cal.App.4th 220, 237.)

A defendant has the burden at trial of establishing a legitimate expectation of privacy in the place searched or the thing seized. [Citations.] The prosecution has the burden of establishing the reasonableness of a warrantless search. [Citations.] The state may carry its burden of demonstrating the reasonableness of a search by demonstrating that the officer conducting the search had a reasonable belief that the person consenting to the search had authority to do so; it is not required that the state establish that the person consenting to the search had actual authority to consent. [Citations.] (People v. Jenkins (2000) 22 Cal.4th 900, 972.)

Higashiyama testified that she had access to the entire house including the garage and that she kept some of her clothes and other personal items in the master bedroom and master bathroom. Thus, her testimony established that she shared access and use of the master bedroom. Further, although there was no evidence that she actually used the garage, the officer could reasonably believe from the fact that she lived at the house, her access to the garage, and the absence of any evidence to the contrary that she also used the garage and had the authority to consent to it being searched. (Illinois v. Rodriguez, supra, 497 U.S. at pp. 188-189 [Law enforcement officials need to conduct further inquiry of a third partys assertion of authority only when it is conceivable that a reasonable person would doubt the truth of such assertion and would not act without further inquiry].)

In Georgia v. Randolph (2006) 547 U.S. 103, the United States Supreme Court held that the warrantless search of a home based upon the consent of one co-occupant was invalid as to the defendant, where the defendant was present and expressly refused to allow police entry. (Id. at pp. 114-115.) The court also stated that an express refusal to consent was required [s]o long as there is no evidence that the police removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection. (Id. at p. 119.) Kemblowski contends that he did not have to expressly refuse consent to search his house because the following circumstances indicate the deputies handcuffed and placed him in a patrol car to prevent him for doing so: 1) Higashiyama told the deputies that Kemblowski had exclusive use of the master bedroom; 2) Higashiyama told the deputies that Kemblowski had locked himself inside the master bedroom but did not tell them she had a key to the room; 3) by locking himself in his room, Kemblowski indicated that he wanted to keep everyone, including the deputies, out of his room and arguably the rest of the house; 4) Kemblowski appeared on the porch cursing the whole world with his profane language, indicating that he would probably never consent to a search of his home or master bedroom; and 5) Kemblowski was unlawfully detained.

Kemblowski appears to cite the first four circumstances to show that: 1) the deputies were aware he would have refused consent to search the house if he were present when the deputies asked Higashiyama for permission to search the house; and 2) this is what apparently motivated them to place him in the patrol car. Kemblowski is wrong.

Kemblowskis appellate counsel misrepresents the record when he repeatedly states that Higashiyama told the deputies that Kemblowski had exclusive use of the master bedroom. Although Higashiyama told the deputies that Kemblowski slept in the master bedroom, appellate counsel repeatedly ignores her testimony that she had access to the master bedroom and kept clothing and other personal belongings in there and in the master bathroom.

The record also refutes Kemblowskis assertion that he came out on the porch cursing the whole world. Deputy Garrett testified that when Kemblowski came out on the porch, he uttered one profanity, which he directed at the deputies. Moreover, it does not follow from Kemblowskis utterance of one profanity at the deputies that this would necessarily cause the deputies to believe Kemblowski would not consent to a search of his house. As noted by the court in Randolph, a substantial number of suspects who are asked for permission to search actually consent, albeit imprudently. (Georgia v. Randolph, supra, 547 U.S. at p. 122.)

Nor does the record support Kemblowskis assertion that he was unlawfully detained and arrested. At the hearing on Kemblowskis suppression motion, the People did not have to produce any evidence justifying Kemblowskis detention and/or arrest because Kemblowski did not claim in the trial court that he was unlawfully detained or arrested. Thus, the Peoples failure to produce evidence justifying Kemblowskis detention does not mean that they did not have a lawful reason for removing him from the porch.

Further, the record discloses circumstances that support the deputies actions in handcuffing Kemblowski and placing him in the back of a patrol car. Higashiyama called sheriff deputies because of circumstances involving Kemblowski. When the deputies arrived they found a .22-caliber rifle on the porch and Higashiyama informed them there were other firearms in the house. When Kemblowski appeared at the doorway he acted aggressively towards the deputies, uttering a profanity and refusing to obey their command to step outside of the house. These circumstances justified the deputies in arresting him for delaying, obstructing or resisting an officer in the performance of his duties and for disturbing the peace.

Additionally, although not part of the suppression hearing record, other information in the record indicates Higashiyama told the deputies that Kemblowski was a felon. Coupled with the information that there were guns in the master bedroom and the discovery of a rifle on the porch the deputies had enough information to at least detain, if not arrest, Kemblowski for being a felon in possession of firearms and it explains why the defense did not challenge the detention and/or arrest of Kemblowski. Accordingly, we reject Kemblowskis contention that the above discussed circumstances indicate that the deputies placed him in the patrol car to prevent him from expressly refusing to consent to a search of the house he shared with his wife. We also conclude that the court did not err when it denied Kemblowskis motion to suppress.

DISPOSITION

The judgment is affirmed.

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^*Before Wiseman, Acting P.J., Cornell, J., and Gomes, J.