Opinion
B230353
02-08-2012
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER BROUSSARD Defendant and Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MA044998)
APPEAL from a judgment of the Superior Court of Los Angeles County. Charles A. Chung, Judge. Affirmed in part and reversed in part.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Christopher Broussard was convicted by a jury of an assault upon a peace officer with a semiautomatic weapon (Pen. Code, § 245(d)(2)); shooting at an inhabited dwelling (§ 246); bringing a firearm into a jail (§ 4574(a)); transportation of a controlled substance (Health and Saf. Code, § 11379(a)); possession of a firearm by a felon (§ 12021(a)(1)); and of an assault upon a second peace officer with a firearm (§ 245(a)(2)). The jury also found two firearm enhancements to be true. Appellant admitted to three prior felony convictions and to having served four prior prison terms. He was sentenced to 30 years, plus 50 years to life in state prison. He appeals from the judgment.
Unless otherwise noted, all further statutory references are to the Penal Code.
FACTS
1. Evidence Presented at the Suppression Hearing
Around 1:00 a.m. on March 2, 2009, Los Angeles County sheriff deputies observed that a car failed to stop at a stop sign and initiated a traffic stop. Appellant was a passenger in the car; he was wearing baggy clothing. The deputies learned that the car had been reported as stolen.
Deputy Justin Holm searched appellant for weapons because usually people in stolen vehicles carry weapons and it was a high crime area. Deputy Holm noticed that appellant wore two vials in a chain around his neck. The vials were an inch to an inch-and-a-half tall and the width of a quarter. By virtue of his training and experience, Deputy Holm knew that such vials were a common method of carrying narcotics. Holm opened the vials and noted that they contained methamphetamine.
The physical evidence showed him to be right; appellant was found to have been in possession of a "usable quantity" of methamphetamine.
Appellant was placed in the back seat of a vehicle used by Deputies Yesenia Castillo and Alex Smith. Deputy Holm normally pats down a person who is put inside a patrol car because of officer safety.
2. Trial Testimony
Deputy Holm testified that appellant wore numerous coats and jackets and that he searched him for weapons but did not find any, nor did he feel any type of "bracing" on appellant's back.
At the jail, appellant told Deputy Castillo that he had a bad back and that he wore a brace under his shirt and jacket. Castillo performed a booking search and then started to place appellant in the booking cell with another male prisoner; she told appellant to remove his jacket and back brace.
Appellant took off his jacket, sat down, and said, "I can't do 25 to life." Castillo, who was standing at the window of the booking cell door, saw appellant reach to his back brace and pull out a silver handgun. Castillo told her partner that appellant had a gun and the deputies crouched down and made for the jailer area. As they were doing so, Castillo heard a gunshot and another one a few seconds later. By the time the second shot was fired, Castillo was in the jailer area.
Castillo and her partner now went to get their guns from the gun lockers. Within seconds, four or five sheriff's personnel arrived. Deputy Smith, who had remained on the scene, told appellant several times to take his hand away from the gun; eventually, he did so. The deputies then subdued appellant.
According to Detective Jeffrey Knittel, who investigated the case, the physical evidence was that appellant fired two bullets that struck the plexiglass window in the front of the booking cell, traveled through the booking area and then struck the bullet proof glass on the far side of the booking area. The bullet proof glass separates the booking area from the main part of the sheriff's station.
A video of these events, which took place just prior to 6:00 a.m., shows appellant placing the gun in his mouth.
The sum of two statements that appellant gave to the police was that he wanted to kill himself because he did not want to back to prison and that he put the gun in his mouth to this end but couldn't go through with it. He said he fired the gun so that the deputies would return fire and kill him. Appellant was inconsistent about his knowledge of the gun, claiming both that he did not know about it and that he put the gun in his back brace and was surprised the deputies searching him did not find it. Appellant also said that if he wanted to kill deputies, he could have done it any time before he was booked. Seven live rounds were found in appellant's gun after the shooting.
DISCUSSION
1. The Search Was Lawful
Appellant contends that Holm merely had a "hunch" that the two vials contained narcotics and that, for this reason, the search was unlawful.
The record does not support this claim. When asked whether, based on his background, training and experience, he became concerned about the contents of the vials, Holm replied: "Yes, sir. It's a common method used to carry narcotics." Holm went on to explain that he has seen numerous investigations "where narcotics have been found in certain small containers such as those." Holm was not airing hunches, he was making statements of fact.
On cross-examination, he put the number as being between 50 and 100.
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Appellant goes on to acknowledge that Holm based his opinion on his experience but appellant claims that small vials could also be used for lawful purposes. But the question is not whether vials have other uses but whether it was probable that they were contraband. "In the context of the plain view doctrine, probable cause is a flexible, commonsense standard, which requires only that the facts available to the officer would warrant a person of reasonable caution in believing that the item may be contraband . . . . No showing is required that such a belief is correct or more likely true than false." (People v. Stokes (1990) 224 Cal.App.3d 715, 719.) A practical, nontechnical probability that incriminating evidence is involved is all that is required. (Ibid.) Given Holm's experience, it was probable that the vials contained contraband. Thus, the search was lawful.
2. Substantial Evidence Supports the Convictions for Assaults upon the Deputies
Appellant contends that there is no evidence suggesting that he was aware that Deputies Castillo and Smith "were actually present" and that therefore his convictions for assaulting these deputies cannot stand.
Deputy Castillo had just spoken to appellant during the booking process and Smith was also present on the scene. Both Smith and Castillo ducked when the first shot was fired, causing Castillo to say or call out to Smith that appellant had a gun. And if one takes appellant's version of the events at face value that he fired the shots in the hope that the deputies would return fire, appellant clearly knew that the deputies were on the scene.
We must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Lewis (1990) 50 Cal.3d 262, 277.) Castillo had just spoken to appellant and both she and Smith ducked when the first shot was fired. These were facts from which the jury could reasonably conclude that both deputies were assaulted.
3. Detective Knittel Was Qualified to Opine that the Weapon was Semiautomatic
In response to the trial court's question, Detective Knittel testified that appellant's weapon was a semiautomatic Astra nine-millimeter Spanish handgun. The defense objected on the ground that there was no foundation. The court then asked Knittel whether his opinion was "based on your knowledge as a police officer," to which the answer was yes.
If there is one subject on which a police detective can be expected to have knowledge, it is handguns. In any event, Knittel was cross-examined at some length on the subject of the gun, and we see no basis to conclude Knittel's opinion lacks foundation. The record before us tells us more than enough about the basis for Knittel's opinion about the gun.
The fact that Knittel also testified that he had never seen this type of gun before does not detract from the reliability of his opinion. In fact, it buttresses it since the gun stood out for Knittel as unusual "some off-the-wall brand I have never seen before" which meant that he looked at it more closely than he otherwise would have.
In any event, there is no question that Knittel, as a police detective, was qualified to render an opinion about appellant's gun.
4. The Conviction for Bringing a Firearm into Jail Stands
Appellant makes the inventive argument that he cannot be convicted for a violation of section 4574 since he did not bring the gun to jail voluntarily - he was arrested and transported to jail against his will.
The flaw in this argument is that he certainly did not tell the deputies on the scene of the traffic stop, while he was being searched, that he had a gun in his back brace. He did not even disclose this during the booking search. Thus, if one is to look for an element of volition, it is that he made the decision not to disclose that he had secreted a gun in his back brace.
Appellant knew, of course, that he was being searched for weapons, especially on the scene of the traffic stop. His decision to say nothing to the deputies about the hidden gun was deliberate and intentional. Appellant's contention about this offense is without merit.
5. The Conviction for Discharging a Firearm at an Inhabited Dwelling Must Be Vacated
Relying on People v. Stepney (1981) 120 Cal.App.3d 1016 and People v. Morales (2008) 168 Cal.App.4th 1075, appellant contends that he cannot be convicted for violating section 246 since he fired his gun inside and not at a building. Both of these cases held that firing a weapon inside a building does not qualify as a violation of section 246.
Respondent relies on People v. Jischke (1996) 51 Cal.App.4th 552, 556 which held that firing a gun from one apartment to another apartment inside the same building is a violation of section 246. Respondent reasons that in this case the gun was fired inside the booking area toward other sections of the sheriff's station and that this circumstance invokes the ruling and reasoning of the court in Jischke, supra.
The flaw in respondent's theory is that it would apply section 246 whenever a person fired from one room to another. Both Stepney and Morales reject this approach where, respectively, shots fired from one room into the living room (Stepney, supra, 120 Cal.App.3d at p. 1018) and from an attached garage into the kitchen (Morales, supra, 168 Cal.App.4th at pp. 1078-79). There is a distinction between two apartments, on the other hand, because these are separate dwelling places.
We agree with the observation of the court in Stepney that the word "at" is a word of many meanings (Stepney, supra, 120 Cal.App.3d at p. 1019) but it is not infinitely elastic, especially when it is matched against the words "inside" or "within." The shooting here occurred inside or within a building. This is not to say that shooting from one part of a commercial or governmental building into another part could never violate section 246. There may be situations when the shooting involves more than one possessory interest in such a building so that the case resembles Jischke's shooting from one apartment into another apartment setting. But this is not that case.
Appellant's conviction of a violation of section 246 must be vacated and set aside. Since the sentence on count 2, which alleges a violation of section 246, was stayed along with the sentences on counts 4, 5 and 6, appellant's sentence will not be affected. We remand the case, however, with directions to correct the abstract of judgment.
DISPOSITION
The conviction of violation of Penal Code section 246 is reversed and the case is remanded with directions for the trial court to make the appropriate correction in the abstract of judgment vacating the section 246 conviction and to forward the new abstract to the Department of Corrections. With the stated exception, the judgment is affirmed.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.