P. v. Hall



















Filed 4/19/13 P. v. Hall CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT




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THE PEOPLE, Plaintiff and Respondent, v. DOREMAN NICHOLS HALL, Defendant and Appellant.

H037560 (Santa Clara County Super. Ct. No. CC962143)

Defendant
Doreman Nichols Hall appeals from a judgment
of conviction entered after a no contest plea to two counts of href="http://www.fearnotlaw.com/">failing to properly register as a sex
offender (Pen. Code, § 290.011, subd. (b)),href="#_ftn1" name="_ftnref1" title="">[1]
one count of being a felon in possession of
a firearm (former § 12021, subd. (a)(1)) and one count of href="http://www.mcmillanlaw.com/">possessing a short-barreled shotgun
(former § 12020, subd. (a)(1)).href="#_ftn2"
name="_ftnref2" title="">[2] The trial court sentenced defendant to the
lower term of 16 months in prison, with each count running concurrently. On appeal, defendant contends the trial court
erred in denying a section 1538.5 motion to suppress evidence obtained in the
warrantless search of his bedroom.
Finding no error, we will affirm the judgment.

I.
Procedural
and Factual Backgroundhref="#_ftn3"
name="_ftnref3" title="">[3]

Defendant
is a convicted sex offender with a lifetime registration requirement. He was charged in counts one and two of a
seven-count information with failing to change his transient registration
status within five days of establishing a residence (§ 290.011, subd. (b)); in
counts three and four with failing to inform law enforcement of his new address
within five days (§ 290, subd. (b)); and in count five with failing to update
his transient registration within five days of his birthday (§ 290.011, subd.
(c)). Count six charged defendant with
being a felon in possession of a firearm (former § 12021, subd. (a)(1)); and
count seven with possession of a short-barreled shotgun (former § 12020, subd.
(a)(1)).

The
superior court heard defendant’s motion to suppress evidence on February 26,
2010. The prosecution presented
testimony from Sergeant Linden, Officer Coker, and Officer Johnson of the San
Jose Police Department; defendant did not call witnesses. Officer Johnson testified that at
approximately 6:30 p.m. on November 21, 2009, he was dispatched to an apartment
complex at 808 Opal Drive in San Jose.
As Officer Johnson arrived on scene, witnesses told him of “a
disturbance involving weapons going on,” and directed him to a vehicle parked
in space No. 4. The witnesses described
“two black males, one older, one younger,” involved in the disturbance; and,
that “the older one” was smashing the windows of the car with a bat or similar
instrument. The witnesses indicated that
the vehicle may have belonged to the male smashing its windows. Other witnesses told the officer that the
person who had smashed the car’s windows went into the apartment associated
with the space it was parked in.

After
speaking to the witnesses, Officer Johnson approached the vehicle parked in
space No. 4, which appeared to correspond with apartment No. 4, and saw that
the car windows were smashed. He ran the
vehicle’s license plate number through police dispatch who confirmed that
Doreman Hall was the vehicle’s registered owner. He also asked the dispatcher to search the
Criminal Justice Information Center (CJIC) for any information regarding
Doreman Hall. Officer Johnson then heard
what “sounded like people in a verbal argument, things breaking, crashing, . .
. possibly somebody in a physical fight” coming from the opposite side of the
apartment complex. He moved closer to
the noise and determined it was coming from the “upper unit” of the apartment
complex, the same apartment witnesses had described the defendant going
into. Sergeant Linden and Officer
Jolliff joined Officer Johnson at the base of the stairs to apartment No. 4,
which was later identified as defendant’s apartment.

Dispatch
responded with two birthdates associated with the name Doreman Hall. The first birth date was August 26, 1962, and
the second was October 27, 1985. The
officers learned that the younger Hall (later identified as defendant’s son and
referred to here as “Hall Jr.”) had an active felony arrest warrant and was on
parole from the California Youth Authority.
Dispatch also confirmed that the older Hall was required to register as
a sex offender pursuant to section 290.

The
disturbance occurring inside defendant’s apartment could still be heard. Sergeant Linden testified that he heard
“yelling” and “crashing and bashing of things being broken or thrown around or
somebody being beat or thrown around,” and that he “felt that there was a high
potential that somebody’s life or safety was in danger.” Sergeant Linden and Officers Johnson and
Jolliff proceeded up the stairs, knocked and announced their presence. A Black male subject (later identified as
defendant) appeared in a window next to the door and stated: “Come back with a search warrant. I’m not opening the door.” Since only defendant’s upper torso was
visible and his hands could not be seen, Sergeant Linden did not know whether
defendant was armed. Officer Johnson
again commanded defendant to open the door, and when defendant did not comply,
Officer Johnson drew his service weapon and pointed it at defendant through the
window. With his weapon drawn, Officer
Johnson again commanded defendant to open the door, defendant refused, and
Sergeant Linden ultimately kicked the front door open.

Officer
Johnson entered the apartment, pointed his weapon at defendant, and ordered him
to the floor where Officer Johnson handcuffed him. Sergeant Linden approached Hall Jr., who was
found sitting on the couch with his hands in the air. Officers Coker and Frost then arrived on scene.


The
residence was a one-bedroom apartment.
To ensure “that there was nobody needing medical attention or anybody
that posed a threat,” the officers conducted a “protective sweep” of the areas
where another person could be. No
persons other than defendant and his son were found in the apartment. However, while conducting the protective
sweep, Officer Coker observed “the shoulder pad and stock of a long gun” and a
separate gun case that appeared to be full under the bed in the apartment’s
sole bedroom.

Sergeant
Linden returned to Hall Jr. and asked him to identify himself. Hall Jr. complied and stated that he had been
staying in the apartment. The officers
observed a makeshift bed in the living room, and Hall Jr. confirmed that he had
been sleeping there. Hall Jr. also told
the officers that his luggage was in the bedroom closet. Based on Hall Jr.’s statements and Sergeant
Linden’s own observations of men’s clothing, shoes, and toiletries, Sergeant
Linden determined that the apartment belonged to defendant and that he occupied
the apartment’s sole bedroom.

Sergeant
Linden received defendant’s felony history through dispatch, including two
prior convictions for registrable sex offenses (§ 288, subd. (c)), and that
information was at some point conveyed to Officer Coker. Sergeant Linden then directed Officer Coker
to retrieve the firearms found under defendant’s bed because “convicted felons
can’t hold firearms.” While doing so,
Officer Coker observed another shotgun under the dresser, which was “about 2
feet from the foot of the bed.” Officer
Coker retrieved that shotgun as well, and found that it was loaded and less
than 18 inches in length. Officer Coker
also collected mail addressed to defendant that he had observed on top of the
dresser during the protective sweep.

Having
confirmed Hall Jr.’s identity and parolee status, and in light of his staying
and sleeping at the apartment and storing luggage in the bedroom closet,
Sergeant Linden determined that Hall Jr. had access to the apartment’s bedroom
and ordered a parole search. During that
search, Officer Coker found five rounds of .38-caliber ammunition in one of the
dresser drawers located in the bedroom.

II.
The
Trial Court’s Findings and
Disposition

The trial
court delivered its ruling in two parts.
First, the court determined that “there [were] exigent circumstances”
allowing the officers to enter the apartment without first obtaining a
warrant. The court explained that
“objectively speaking, what we have here is an act of very significant
violence, whether it was Mr. Hall’s car or not.
Somebody is smashing a car with a bat or a pipe, it’s a very
significantly violent act. That person
goes to a nearby apartment. Officers
hear multiple voices and sounds of the movement and violence and yelling. I think it’s a perfectly reasonable
possibility that they anticipated someone was or could be getting hurt, given
that just minutes before witnesses had seen a very violent act with a dangerous
or deadly weapon. So, I do believe that
there [were] exigent circumstances. I
don’t think it was appropriate for the officers to have to wait at that time to
get a warrant given that it could take a significant period of time and someone
could be very well committing a crime and/or being injured in that
apartment. So, I find that their entry
was appropriate under exigent circumstances.”


The court
further found that the “protective sweep was certainly appropriate” and that
“the plain view as to the guns was appropriate.” The court explained, “I think checking under
the bed is an absolute requirement for a protective sweep. [The officer] was able to retrieve the guns
by reaching under the bed, therefore indicating that somebody certainly could
have been underneath that bed in a space that was appropriate to be
checked.” The court concluded that “when
[the officer] was retrieving those guns, [he] was in a position that he was
really allowed to be in retrieving those guns, and, therefore, viewing the
other gun in plain view at that time.”
The court took the matter under submission in order to research the
appropriate scope of the parole search.

On March 5,
2010, the court delivered the remainder of its ruling. The court found that the ammunition retrieved
from the bedroom dresser drawer was properly seized pursuant to Hall Jr.’s
parole search condition. The court
reasoned that Hall Jr. was “staying” at defendant’s apartment, and since the
officers confirmed that Hall Jr.’s luggage was in his father’s bedroom closet,
where he said it would be, it was reasonable for the officers to infer that
Hall Jr. had access to his father’s bedroom.
The court also concluded that the collection of defendant’s mail as
indicia of his residency was proper because it was found in the bedroom in
plain view.

After the suppression
motion was denied, defendant pleaded no contest to failing to properly register
as a sex offender (§ 290.011, subd. (b)) (counts one & two), possession of
a firearm by a felon (former § 12021, subd. (a)(1)) (count six), and possession
of a short-barreled shotgun (former § 12020, subd. (a)(1)) (count seven). By agreement, the trial court sentenced
defendant to 16 months in state prison concurrent for each count, and the
remaining counts were dismissed.

Defendant
filed a timely notice of appeal of the denial of the motion to suppress. The denial of a suppression motion may be
challenged by an appeal from the judgment entered after a guilty or no contest
plea. (§ 1538.5, subd. (m); >People v. Lilienthal (1978) 22 Cal.3d
891, 896.)

III.
Discussion

Defendant
contends that the trial court erred in denying his motion to suppress “because
the protective sweep of [his] residence was not justified and the search of
[his] exclusively controlled bedroom was not reasonably justified by his son’s
parolee status.” Defendant also argues
that “[t]he inevitable discovery doctrine does not apply because the evidence
would not have been discovered under the search incident to arrest
doctrine.” Lastly, defendant contends
that should any of his arguments be deemed forfeited, defense counsel rendered
ineffective assistance of counsel.

The
Attorney General argues that the trial court’s denial of defendant’s motion to
suppress was supported by the exigent circumstances doctrine and the protective
sweep exception to the warrant requirement, and that any evidence initially
observed in plain view was properly seized.
The Attorney General further argues that the parole search of
defendant’s bedroom was proper since Hall Jr. shared access to the bedroom, as
was evidenced by the storage of Hall Jr.’s luggage in the bedroom closet. Finally, the Attorney General asserts that
pursuant to the inevitable discovery doctrine, the search of defendant’s
bedroom was “warranted as a search incident to arrest.”

A.
Standard
of Review

“
‘The standard of appellate review of a trial court’s ruling on a name=SearchTerm>motion
to suppress is well established. We defer to the trial court’s factual
findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found,
the search or seizure was reasonable under the href="http://www.fearnotlaw.com/">Fourth Amendment, we exercise our
independent judgment.’ ” (People
v. Weaver (2001) 26 Cal.4th 876, 924, quoting People v. Glaser (1995) 11 Cal.4th 354, 362.) “And where, as is the case here, there is no
controversy concerning the underlying facts, our task is simplified: The only issue is whether that rule of law,
as applied to the undisputed historical facts, was or was not violated. This is an issue for our independent
review. (See People v. Thompson (2006) 38 Cal.4th 811, 818.)” (People
v. Werner (2012) 207 Cal.App.4th 1195, 1203-1204 (Werner).)

B.
Applicable Search and Seizure Principles

The federal
and state Constitutions prohibit unreasonable searches and seizures by the
government, and a warrantless entry into a home is presumptively
unreasonable. (U.S. Const., 4th &
14th Amends.; Cal. Const., art. I, § 13; Payton
v. New York (1980) 445 U.S. 573, 587.)
California law requires that the reasonableness of searches and seizures
undertaken by the police be reviewed under federal constitutional
standards. (People v. Rogers (2009) 46 Cal.4th 1136, 1156, fn. 8 (>Rogers).)

In the case
of a warrantless search of a home, the prosecution bears the burden of establishing
that the search “was justified by some exception to the warrant
requirement.” (People v. Camacho (2000) 23 Cal.4th 824, 830.) As recently explained by the California
Supreme Court, “ ‘[T]he “physical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed.” ’ [Citation.]
Thus, ‘searches and seizures inside a home without a warrant are
presumptively unreasonable.’
[Citation.] ‘Nevertheless,
because the ultimate touchstone of the Fourth Amendment is “reasonableness,”
the warrant requirement is subject to certain exceptions.’ ” (People
v. Troyer (2011) 51 Cal.4th 599, 602.)

The exigent
circumstances doctrine provides an exception to the warrant requirement. (Rogers,
supra, 46 Cal.4th at p. 1156.) “ ‘[E]ntry
into a home based on exigent circumstances requires probable cause to
believe that the entry is justified by one of these factors such as the
imminent destruction of evidence or the need to prevent a suspect’s escape.’ ” name="SDU_755"> (People v. Thompson (2006) 38 Cal.4th 811, 818, quoting >People v. Celis (2004) 33 Cal.4th 667,
676 (Celis).) Additionally, “[a]s relevant here, the
exigent circumstances doctrine constitutes an exception to the warrant
requirement when an emergency situation requires swift action to prevent
imminent danger to life.” (>Rogers, supra, at p. 1156.) “ ‘ “ ‘[T]here
is no ready litmus test for determining whether such circumstances exist, and
in each case the claim of an extraordinary situation must be measured by the
facts known to the officers.’ ” ’ [Citation.]
Generally, a court will find a warrantless entry justified if the facts
available to the officer at the moment of the entry would cause a person of
reasonable caution to believe that the action taken was appropriate.” (Id.
at p. 1157.)

“One
recognized exigent circumstance that will support the warrantless entry of a
home--the risk of danger to police or others on the scene--also provides the
justification for a ‘protective sweep’ of a residence under the high court’s
decision in [Maryland v.] Buie [(1990)] 494 U.S. 325.” (Celis,
supra, 33 Cal.4th at pp. 676-677.)> “The
Fourth Amendment permits a properly limited protective sweep in conjunction
with an in-home arrest when the searching officer possesses a reasonable belief
based on specific and articulable facts that the area to be swept harbors an
individual posing a danger to those on the arrest scene.” (Maryland
v. Buie, supra, 494 U.S. at p. 337.)

“As the
California Supreme Court has further explained, ‘[a] protective sweep of a
house for officer safety as described in Buie,
does not require probable cause to
believe there is someone posing a danger to the officers in the area to be
swept. [Citation.] . . . A protective sweep can be justified merely by
a reasonable suspicion that the area
to be swept harbors a dangerous person.
[Citation.] Like the limited pat
down for weapons authorized by Terry v.
Ohio [(1968)] 392 U.S. 1, 21, 27, a protective sweep may not be based on “a
mere ‘inchoate and unparticularized suspicion or “hunch.” ’ ” ’ (People
v. Celis (2004) 33 Cal.4th 667, 678 (Celis);
see also People v. Troyer, >supra, 51 Cal.4th at pp. 606-607.) The test under Buie therefore requires a reasonable suspicion both that another person is in the premises and that that person is dangerous.
(3 LaFave, Search and Seizure (4th ed. 2004) § 6.4(c), p. 377.) The existence of such a reasonable suspicion
is evaluated on a case-by-case basis by looking at the ‘ “totality of the
circumstances” ’ to ascertain whether the police had or whether the officer has
‘a “particularized and objective basis” ’ for his or her suspicion. (United
States v. Arvizu (2002) 534 U.S. 266, 273.)” (Werner,
supra, 207 Cal.App.4th at pp.
1205-1206.)

It was the
People’s burden below to demonstrate the reasonableness of the search under a
recognized exception to the general warrant requirement. (Vale v. Louisiana (1969) 399 U.S. 30,
34; People v. James (1977) 19 Cal.3d
99, 106.) Here, we agree with the trial
court that the officers’ initial intrusion into defendant’s home was proper
pursuant to the exigent circumstances doctrine.
When we view the facts known to the officers at the time of their
warrantless entry into defendant’s home, we conclude that their entry was a
necessary and appropriate response to an emergency situation which required
swift action to prevent imminent danger to life. (Rogers,> supra, 46 Cal.4th at p. 1156.)

When
Officer Johnson arrived at defendant’s apartment complex, he was flagged down
by multiple witnesses and informed that a male subject was smashing the windows
of a vehicle with a “bat or another weapon.”
The witnesses reported that two individuals involved in the disturbance
went inside a nearby apartment. Officer
Johnson independently verified that the vehicle’s windows were smashed. As he stood by the vehicle, he could hear
what “sounded like people in a verbal argument, things breaking, crashing, . .
. possibly somebody in a physical fight.”
After Sergeant Linden and Officer Jolliff joined Officer Johnson at the
base of the stairs to defendant’s apartment, they continued to hear yelling and
the sound of “things being broken or thrown around or somebody being beat or
thrown around,” coming from the defendant’s apartment. Sergeant Linden “felt that there was a high
potential that somebody’s life or safety was in danger.”

Defendant
argues unpersuasively that any exigency ended once officers entered the
apartment and found both defendant and his son in the living room. Defendant asserts that the witnesses only reported
seeing two males outside smashing the windows of a vehicle, such that once
those two males were found, the urgency no longer existed. However, we view the facts as they were
presented to the officers in order to determine if a warrantless entry was
justified, and we must therefore ask whether those facts would cause a person
of reasonable caution to believe that the action taken was appropriate. (Rogers,
supra, 46 Cal.4th at p. 1157.) In this case, the answer is yes.

Here, the
exigent circumstances did not end upon the officers’ entry into defendant’s
apartment, but rather when the officers completed a protective sweep of the
premises. At the time of their entry,
the officers did not know whether anyone else was inside the apartment, and the
witnesses had not reported whether they believed anyone else was inside. Given that the officers heard “crashing and
bashing of things being broken or thrown around,” it was reasonable for the
officers to search for persons “needing medical attention or anybody that posed
a threat.”

While
defendant acknowledges that that the initial entry into the apartment was
justified by exigent circumstances, he fails to recognize that those same
circumstances created the need for a protective sweep. Since, as we explained above, the higher
standard of probable cause necessary to justify an entry and search pursuant to
the exigent circumstances doctrine was satisfied here, it follows that the
lower standard requiring reasonable suspicion to conduct a protective sweep was
also met.

While
conducting the protective sweep of defendant’s bedroom, Officer Coker observed
a firearm and a gun case under defendant’s bed.
After the officers confirmed defendant’s status as a convicted felon,
Officer Coker retrieved the guns located under the bed. While at the floor level to retrieve those
guns, Officer Coker observed another firearm under a nearby dresser. While conducting the protective sweep, Officer
Coker also observed “a variety of mail and letters” on top of the dresser in
the bedroom. Knowing at that point that
defendant was required to register as a sex offender, Officer Coker collected
defendant’s mail as evidence of indicia of his residency. Since the mail was observed in plain view in
a location where officers were legally allowed to be, the seizure was proper.

“[P]olice
may seize any evidence that is in plain view during the course of their
legitimate emergency activities.” (Mincey
v. Arizona (1978) 437 U.S. 385, 393.)
Indeed, “ ‘in the course of conducting a reasonable search [the police
do] not have to blind themselves to what [is] in plain sight simply because it
[is] disconnected with the purpose for which they entered.’ ” (People
v. Duncan (1986) 42 Cal.3d 91, 99, quoting People v. Roberts (1956) 47 Cal.2d 374, 379.)

In our
view, the entry and search of the apartment were justified by exigent
circumstances. We therefore do not
address defendant’s arguments concerning the applicability of the name=Document1zzF011112020211205>inevitable href="http://www.mcmillanlaw.com/">discovery doctrine. (See Rogers, supra, 46 Cal.4th at p. 1161, fn. 12, [having found
exigent circumstances, no need to consider alternative justification theory of
inevitable discovery]; People v.
Hochstraser (2009) 178 Cal.App.4th 883, 894.)

We need not
reach whether the parole search was appropriate in this case because none of
the evidence seized pursuant to the parole search was used as evidence against
defendant. The only evidence seized
during the parole search was five rounds of .38-caliber ammunition in one of
the dresser drawers located in defendant’s bedroom. However, no charges were brought against
defendant based on that evidence.

IV.
Disposition

The judgment is affirmed.

____________________________________



Grover,
J.











WE CONCUR:











____________________________



Rushing, P.J.















____________________________

Márquez,
J.