Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 722899
DAVIS , J.
A jury found defendant Stacey Victoria Scott guilty of one count of first degree burglary (Pen. Code, § 459) and two counts of receiving stolen property (Pen. Code, § 496).
On appeal, defendant contends her trial lawyer rendered ineffective assistance of counsel by failing to renew her suppression motion before the trial court after it was denied at the preliminary hearing. Because the suppression motion was properly denied, defendant was not denied effective assistance of counsel. Accordingly, we will affirm the conviction.
Facts and Procedural History
We summarize the facts in the light most favorable to the trial court’s ruling. (People v. Jenkins (2000) 22 Cal.4th 900, 969.)
On August 24, 2004, Placer County Sheriff’s Department detectives Michael Lyke and David Hunt and child social welfare workers Amy Englund and Kathy Tanner went to defendant’s home to conduct a follow-up welfare check on defendant’s two-year-old daughter. The follow-up check was prompted by a need to confirm that chemicals found within the child’s reach during an August 3d visit had been secured as promised by defendant and the child’s father, and a report that the father had bailed defendant out of jail two days earlier after she was arrested for assault with a deadly weapon and child endangerment involving her child and another child.
Both Detective Lyke and social worker England had been to the house on August 3d in response to a domestic violence incident in the home on July 25. During the visit on the 3d, they observed chemicals within the child’s reach and discussed the need to secure them. Defendant and the father stated they would do so. During the visit the father stated that defendant was “manic” and that he had concerns about her mental health. Defendant refused services and demanded that the social worker and officer leave.
When the officers and social workers arrived on August 24, defendant, her daughter, and the child’s father came outside onto the porch. A neighbor, Terri Staub, walked over to the house. The child was crying hysterically until Staub, with the consent of Detective Lyke, took the child into the house. Defendant was verbally hostile, agitated, “cussed” at social worker Englund in the presence of her daughter, and yelled at them to leave. The same chemicals seen on August 3d were on the porch where a child could reach them. The father attempted to cooperate by inviting them into the home, but defendant repeatedly told him to shut up and not to cooperate.
Defendant’s agitated and argumentative state, and her defensiveness and refusal to converse with either him or the social workers, led Lyke to believe that defendant was paranoid.
After calling and consulting with someone from the county counsel’s office, Lyke and the social workers concluded that defendant’s behavior and the condition of chemicals on the porch created an exigent circumstance requiring them to detain the child.
Since the child was inside the home, the detectives entered to take custody of the child. Once inside, Detective Hunt observed what he identified as stolen property hanging in plain sight on defendant’s wall. Defendant was arrested for possession of stolen property. A felony complaint was filed charging two counts of first degree residential burglary and two counts of receiving stolen property.
Defendant moved to suppress evidence on the ground that the detectives’ warrantless entry was unreasonable under the Fourth Amendment. The motion was heard at the preliminary hearing. After hearing argument and allowing both sides to present witnesses, the magistrate, Commissioner Trilla Bahrke, denied defendant’s suppression motion and held defendant to answer on all four counts charged in the complaint.
Represented by new counsel, defendant proceeded to jury trial. Trial counsel did not renew defendant’s motion to suppress in the superior court. A jury found defendant guilty of one count of first degree residential burglary and both counts of receiving stolen property. Defendant was sentenced to four years in state prison. The trial court suspended imposition of sentence and placed defendant on probation for five years.
On appeal, defendant contends her suppression motion should have been granted because the detectives’ warrantless entry into her home violated the Fourth Amendment. Acknowledging that her motion to suppress was not raised in the superior court after it was denied by the magistrate, defendant invites us to review the merits of her Fourth Amendment claim because her trial counsel’s failure to renew the suppression motion constituted ineffective assistance of counsel. We disagree and will affirm the judgment.
Discussion
I
A. Introduction
Generally, if a magistrate has denied a motion to suppress evidence, the defendant must raise the issue again in the superior court to preserve it for review on appeal. (People v. Lilienthal (1978) 22 Cal.3d 891, 896-897.) However, a defendant’s failure to preserve a Fourth Amendment claim for appeal will not preclude appellate review of the merits of the Fourth Amendment argument if the defendant asserts on appeal, as defendant has here, that her trial counsel was constitutionally ineffective for failing to preserve the argument. (People v. Hart (1999) 74 Cal.App.4th 479, 486 (Hart); People v. Terrell (1999) 69 Cal.App.4th 1246, 1252-1254 [no ineffective assistance shown].) “Like pouring alkali on acid, raising the issue of ineffective assistance of counsel neutralizes Lilienthal waiver and requires appellate review of the legality of the search.” (Hart, supra, 74 Cal.App.4th at p. 486.)
To prevail on an ineffective assistance of counsel claim, a defendant must show “that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney and that counsel’s deficient performance resulted in prejudice to defendant.” (People v. Kipp (1998) 18 Cal.4th 349, 366, italics added.) Thus, to establish her ineffective assistance claim here, defendant must show “that the Fourth Amendment claim had merit” (People v. Frye (1998) 18 Cal.4th 894, 989) and that there was no tactical justification for trial counsel’s actions (Hart, supra,74 Cal.App.4th at p. 486). We turn first to the merits of defendant’s Fourth Amendment claim.
II
Defendant Suffered No Prejudice Since the Suppression Motion Was Properly Denied
A. Standard of Review
Appellate review of a trial court ruling on a motion to suppress is governed by well-settled principles. (People v. Loewen (1983) 35 Cal.3d 117, 123.) In reviewing such a ruling, we defer to the express or implied factual findings of the trial court if they are supported by substantial evidence. We then exercise our independent judgment to determine whether, on the facts found, the search was reasonable under the Fourth Amendment. (People v. Rege (2005) 130 Cal.App.4th 1584, 1588.)
B. An Exigency Justified the Warrantless Entry
“It is axiomatic that the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’” (Welsh v. Wisconsin (1984) 466 U.S. 740, 748 [80 L.Ed.2d 732].) Fourth Amendment jurisprudence is based on the notion that warrantless searches and seizures inside the home are presumptively unreasonable. (Ibid.) Warrants are required unless the exigencies of the situation make the needs of law enforcement so compelling that the warrantless search is objectively reasonable. (Mincey v. Arizona (1978) 437 U.S. 385, 393-394 [57 L.Ed.2d 290] (Mincey).) An exigent circumstance is an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property (People v. Ormande (2006) 143 Cal.App.4th 282, 292), or to forestall the imminent escape of a suspect (United States v. Santana (1976) 427 U.S. 38, 42-43 [49 L.Ed.2d 300]), or to prevent destruction of evidence (Ker v. California (1963) 374 U.S. 23, 40-41 [10 L.Ed.2d 726]). The compelling exigency at issue here has been called the “‘emergency aid doctrine’” or exception. (Brigham City v. Stuart (2006) 547 U.S. ___ [164 L.Ed.2d 650, 656] (Brigham City).)
To qualify for the emergency aid exception, officers must have “an objectively reasonable basis for believing that an occupant [of a home] is seriously injured or imminently threatened with such injury.” (Brigham City, supra, 547 U.S. at p. ___ [164 L.Ed.2d at p. 656], italics added.) The inquiry with respect to the reasonableness of an officer’s actions under the Fourth Amendment is an entirely objective one. (E.g., id. at p. ___ [164 L.Ed.2d at p. 658].)
Both parties dedicate much of their argument to the subjective intent of the officers when they entered defendant’s home. Despite language to the contrary in People v. Ray (1999) 21 Cal.4th 464, 477 (Ray),the United States Supreme Court has recently reiterated that a Fourth Amendment analysis has “nothing to do with discerning what is in the mind of the individual officer conducting the search.” (Brigham City, supra, 547 U.S. at p. ___ [164 L.Ed.2d at p. 659].) Since California has expressly elected to follow federal constitutional standards of Fourth Amendment analysis (see People v. Camacho (2000) 23 Cal.4th 824, 830), the United States Supreme Court standard is controlling.
Therefore, the only relevant inquiry here is into the facts known to the detectives at the time the threshold of defendant’s home was breached. Consequently, the entry was justified only if the facts known to the officers supported an objectively reasonable belief that the child faced an imminent threat of serious bodily injury. (See Brigham City, supra, 547 U.S. at p. ___ [164 L.Ed.2d at p. 656].) The facts support such a conclusion.
The chemicals on the front porch posed an imminent threat of serious bodily injury to defendant’s daughter absent the toddler being in the custody of a parent willing and able to protect her from them. Such was clearly not the case here. The threat the chemicals presented was immediate and continuing. Stepping inside the home over the heated objections of defendant and taking custody of the child was an action that had to be taken to eliminate the threat.
Not only was it objectively reasonable for the officers and social workers to conclude that the chemicals posed an imminent danger to the toddler, it was equally reasonable for them to conclude that defendant and the father were unwilling and/or incapable of protecting the child from consuming or otherwise coming in contact with the chemicals. This conclusion is supported by the prior behavior of the parents, as well as the way they acted on August 24th.
Detective Lyke and social worker Englund had checked on the child’s welfare on August 3d after receiving a report that a domestic violence incident had occurred at the home on July 25. They learned during that visit that dangerous chemicals were in the toddler’s reach; that the father questioned the mental stability of defendant; that defendant was uncooperative and refused services; and that both parents were willing to make what turned out to be unfulfilled promises to protect the child from the chemicals.
The principle that domestic violence in the presence of a minor is an adequate basis for removal was discussed in In re Heather A. (1996) 52 Cal.App.4th 183, 194-196 and addresses how participation in domestic violence in a minor’s presence is neglect within the meaning of Welfare and Institutions Code section 300, subdivision (b), and how it has a negative impact over time on a minor constituting “secondary abuse.”
Around August 20, defendant was arrested for assault with a deadly weapon and child endangerment involving her child and another child. Two days later the father bailed defendant out of jail.
The negative inferences Lyke and Englund could reasonably draw from this prior contact and the information known to them were confirmed when they checked on the child’s welfare on August 24th. Both parents had failed to secure the chemicals as they said they would. The father facilitated defendant’s reentry into the home by bailing her out of jail two days earlier after she had been arrested for assault with a deadly weapon and child endangerment involving her child and another child and then by deferring to defendant’s demands not to cooperate. The father’s previously expressed concern about defendant’s mental condition was corroborated by defendant’s verbal hostility, her paranoid and agitated state, her “cussing” at social worker Englund in the presence of her daughter, and yelling for them to leave.
Defendant’s adamant refusal to even converse with the detectives and social workers, her countermanding her husband’s invitation to enter, and her insistence that the authorities leave, negated the possibility of securing the child without entering and taking physical custody of her. Such action was the safest and most reasonable way to protect the child from the threat the chemicals continued to pose.
The emergency aid exception is reserved for situations requiring immediate and swift action to prevent injury. (Ray, supra, 21 Cal.4th at pp. 472-473, citing People v. Duncan (1986) 42 Cal.3d 91, 97.) The instant situation required such action. It was accordingly lawful for the detectives to enter defendant’s home and the suppression motion was properly denied. Defendant was therefore not prejudiced by her trial counsel’s decision not to renew the motion.
Since the entry was justified by exigent circumstances, we will not reach the Attorney General’s claim that the entry was authorized by a “community caretaking” exception to the warrant requirement.
Disposition
The judgment is affirmed.
We concur: SCOTLAND , P.J., BUTZ , J.