Opinion
B307794
01-31-2022
THE PEOPLE, Plaintiff and Respondent, v. EDWARD SOLORZANO, Defendant and Appellant.
Robert A. Werth, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA475762 James R. Dabney, Judge. Reversed and remanded for further proceedings.
Robert A. Werth, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent. 1
EDMON, P. J.
After the trial court denied his motion to suppress evidence, defendant and appellant Edward Solorzano pled no contest to being a felon in possession of a firearm. He appeals, arguing that evidence guns were discovered in his apartment during warrantless searches by officers should have been suppressed, and he should therefore be allowed to withdraw his plea. He also contends that his probationary term must be modified in light of Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill 1950). We conclude Solorzano's Fourth Amendment claim, as it regards officers' second entry into his apartment, has merit. Accordingly, we reverse the court's denial of the suppression motion and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
1. The suppression motion
Police officers found a revolver and rifles during two warrantless entries into and searches of Solorzano's apartment. He was charged with a single count of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)), based on his possession of the revolver. Solorzano moved to suppress all evidence obtained in the searches pursuant to section 1538.5. At the suppression hearing, the People presented the testimony of civilian witness J.A., a transcript of J.A.'s 911 call, the testimony of five police officers, and video footage of events derived from officers' body-worn cameras. Harmonizing these sources, and viewing the record in the light most favorable to the trial court's ruling (People v. Davis (2005) 36 Cal.4th 510, 528-529), the evidence showed the following. 2
All further undesignated statutory references are to the Penal Code.
At approximately 12:30 a.m. on March 9, 2019, J.A. was in his third-floor Los Angeles apartment with his girlfriend, W.E. J.A. called 911 to report that a girl in apartment 15, the unit across the hall from his, was crying and screaming, "Let me go! Let me go!" and "Don't touch me!" Concerned, J.A. knocked on the apartment door. A tall, heavyset Latino male in his mid-30's, later identified as appellant Solorzano, answered. J.A. observed a young girl crying and trying to push past Solorzano and exit the apartment. J.A. asked what was going on, and Solorzano said the girl was his 13-year-old cousin. Solorzano said, "Take her," or similar words. J.A. returned to his apartment and he and W.E. decided they should notify police. J.A. told the 911 dispatcher that Solorzano was wearing a black T-shirt, and the girl was wearing "maybe a striped shirt." He did not see any weapons.
The 911 dispatcher transmitted the following information in a radio dispatch to the responding officers. "[Party reporting] heard female screaming 'let me go' and 'don't touch me' from [apartment] 15. [Party reporting] knocked on door and neighbor [male Hispanic] 30 years tall heavyset [black] T-shirt stated that it is only his niece. [Party reporting observed] female [Hispanic 13 [years] stripped [sic] shirt crying [attempting] to push past male at door. No weapons seen."
Los Angeles Police Department Officers, including Francisco, Daniel Rodriguez, Pedro Aguila, Anthony Herrera, and Frank Vidaure arrived at apartment 15 in response to the call. Officer Francisco knocked on the door and announced, "Los Angeles Police Department open up!" There was no response from inside. He knocked and announced again, with the same 3 result. When Officer Francisco knocked a third time, the door- which was apparently unlocked-swung slightly open. The officers entered the apartment to do a welfare check and safety sweep to ensure no one was in distress or hurt. Officer Vidaure immediately observed a revolver on the stove, in plain view, and announced, "Gun." He initially assumed the gun was "fake," but upon examination, the officers determined it was real. No one was inside the apartment. Because, at that point, the gun was not evidence of a crime, the officers did not seize it.
Officer Francisco's first name is not reflected in the record.
Less than two minutes after the entry into the apartment, and while the other officers were still inside, Officer Aguila knocked on J.A.'s apartment door and spoke to him and W.E. Aguila asked whether the people in apartment 15 had left, because no one appeared to be inside. J.A. replied, "I think they might've. . . . [T]his girl was crying, saying 'Let me go. Let me go. Don't touch me.' I don't know, kind of screaming . . . ." He reiterated what he had told the 911 operator, and added that Solorzano was "all trying to block her not going and then I think she finally kinda does go and then he follows her I think. . . ." W.E. added, "It sounded like there was some like thumping and moving around and she was like crying a lot and everything" and "so we were just concerned there's something happening there." Officer Aguila asked whether they had seen the girl before and J.A. responded, "yeah. She was trying to open the door once." He stated, "Maybe she lives here, too. I don't know." Officer Aguila told the couple that "until they come back, we can't really do much," but advised them to notify police if they heard anything suspicious. J.A. and W.E. went back into their apartment.
The officers left Solorzano's apartment and closed the door behind them. They discussed among themselves that the suspect 4 would have seen them coming from his apartment window; he had left his house keys behind; and he and the girl were "probably running around here somewhere." Officer Rodriguez opined, "We look around, we'll probably find him." Officer Vidaure said, "You know what's crazy is the comments of the call, like, shirt was ripped off." Aguila replied, "Yeah, yeah. That's why I was like, freaking out . . . ."
The officers then canvassed the area, looking for the girl and Solorzano, but did not find either. Additional units and an airship assisted. While searching the building's roof, Officer Aguila and his partner observed a man matching the suspect's description, walking on the street towards the apartment building, alone. But when Aguila returned to apartment 15, he found the door closed as the officers had left it and did not see the man. Aguila proceeded downstairs to the area where the police vehicles were parked on the street. Approximately 20 minutes after the first entry, and as the officers were about to leave the scene, Officer Rodriguez looked up and saw Solorzano standing in apartment 15 at the window, looking down at the officers. The officers had not observed him reenter the apartment.
The officers set up a perimeter around the area. Four officers returned to apartment 15 to "see if we had a possible victim inside the residence with the possible suspect." They knocked on the door and stated, "Police, open up. LAPD, we know you're inside, you gotta open up." They received no response. Some officers continued to monitor the apartment door, while others searched in case Solorzano had escaped out the back and was hiding in the building. A police sergeant arrived and was filled in on what had transpired. 5
Meanwhile, Officer Vidaure knocked on J.A.'s apartment and spoke with him and W.E. Vidaure was aware of what J.A. and W.E. had already told Officer Aguila. Vidaure informed them that there was a loaded gun in Solorzano's apartment. He asked J.A. whether the girl looked "in distress." J.A. responded, "She was crying. In distress." Vidaure then asked whether her shirt was ripped. J.A. said he did not know if it was ripped, but it looked as though the girl and Solorzano had probably been "in a physical tussle." W.E. stated, it "sounded like there was . . . a physical fight. Like it sounded like it was bumping and stuff." The officer also confirmed that the girl was a juvenile. Vidaure directed J.A. and W.E. to go downstairs and talk with other officers who would take their statements. They did so.
While standing in the hallway outside the apartment, Officer Vidaure then said to Officer Herrera, "You hear?" Herrera replied, "I hear, like, tapping." Vidaure said, "I wonder if it's her." Herrera again announced the LAPD's presence and demanded that the suspect open the door, to no avail.
Downstairs, J.A. and W.E. spoke with another officer and confirmed that they had heard the girl screaming, that J.A. observed her crying; and she tried to exit the apartment but Solorzano tried to block her; and Solorzano chased her. Both confirmed they had seen the girl around the apartment before, but gave no specific information regarding how often, and that they had not seen Solorzano with a gun.
Approximately an hour and 10 minutes after officers saw Solorzano at the apartment window, they knocked and announced again, kicked in Solorzano's door (which was now locked), and entered the apartment. Solorzano was in the bedroom, in bed. Officer Vidaure immediately observed that 6 Solorzano appeared to be a member of the Dog Patch criminal street gang. The officers observed that the revolver, which had been on the stove, had been moved. An officer found shotguns in a closet. The officers arrested and handcuffed Solorzano, and escorted him out of the apartment.
Officers then conducted a 10 to 15 minute search of the apartment, during which they looked in drawers, the toilet tank, and various containers. They discovered scales and ammunition. Officer Rodriguez found the revolver in a kitchen cabinet.
While in the apartment, officers opined that Solorzano appeared to be from the Dog Town gang. They discussed conducting a criminal records check on him. When an officer looked in Solorzano's wallet and discovered his identification, he recognized Solorzano as the brother of an individual who had been convicted of attempted murder. Officers also stated that they recognized Solorzano's photograph from those of gang members posted at the police station. An officer opined, "For sure he's a felon." An officer stated that Solorzano had said he was a "two striker" and the officers "just need[ed] to make sure." When an officer mentioned confirming he was a felon, another officer said, "Oh, he is." A records check conducted after Solorzano's arrest, but while officers were at the scene, confirmed that Solorzano was indeed a felon.
The girl was not located, and no further information about her was provided to the court at the suppression hearing.
Solorzano moved to suppress, inter alia, all items of evidence and all statements he made during the searches, and the results of any Department of Motor Vehicles or other records check. He argued that because he was detained, seized, 7 searched, and arrested without a warrant, the officers' actions were presumptively unlawful.
Based on the totality of the circumstances, the trial court denied the motion to suppress. It summarized, "The woman scre[am]ing, leaving the apartment, they do the sweep, and he's back in the apartment. They don't know who is in the apartment. They just saw him." The trial court did not otherwise elaborate on its ruling or make further findings of fact.
2. The charges, plea, and sentence
Solorzano was charged with a single count of being a felon in possession of a firearm, the revolver (§ 29800, subd. (a)(1)). The information also alleged that he had suffered two prior serious or violent felonies (§§ 667, subd. (d), 1170.12, subd. (b)) and had served a prior prison term within the meaning of section 667.5, subdivision (b).
After denial of the suppression motion, Solorzano pled no contest to the charged offense pursuant to a negotiated plea. He also admitted suffering the two prior "strike" convictions alleged. The trial court suspended imposition of sentence. It struck the prior conviction allegations and placed Solorzano on formal probation for a period of three years.
Solorzano filed a timely notice of appeal.
DISCUSSION
1. Denial of the suppression motion
Solorzano contends that the searches of his apartment violated the Fourth Amendment because no articulable facts supported application of the exigent circumstances exception to the warrant requirement, and there was no evidence his possession of the gun was illegal when the second entry occurred. 8 We conclude that the first entry and search was constitutionally permissible, but the second was not.
a. Applicable legal principles and standard of review
Both the federal and state Constitutions prohibit unreasonable searches and seizures by law enforcement personnel. (U.S. Const., 4th Amend.; Cal. Const., art. I, § 13; People v. Ovieda (2019) 7 Cal.5th 1034, 1041.) The" 'ultimate touchstone of the Fourth Amendment is "reasonableness." '" (Lange v. California (2021) ___ U.S. ___ [141 S.Ct. 2011, 2017; Ovieda, at p. 1041.) A warrantless entry into a home is presumed to be unreasonable, and the prosecution bears the burden of demonstrating a legal justification for it. (People v. Rogers (2009) 46 Cal.4th 1136, 1156; People v. Troyer (2011) 51 Cal.4th 599, 606.)" '[T]he "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed."' [Citations.]" (Ovieda, at p. 1041; Lange, at p. 2018.)
In California, issues relating to the suppression of evidence derived from governmental searches and seizures are reviewed under federal constitutional standards. (People v. Troyer, supra, 51 Cal.4th at p. 605; People v. Ovieda, supra, 7 Cal.5th at p. 1041.) We defer to the trial court's express or implied factual findings if they are supported by substantial evidence, but exercise our independent judgment to determine whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment. (Ovieda, at p. 1041; People v. Suarez (2020) 10 Cal.5th 116, 151.)"' "[W]e consider the correctness of the trial court's ruling itself, not the correctness of the trial court's reasons for reaching its decision." '" (Suarez, at p. 151.) We view the evidence in the light most favorable to the trial court's ruling. (People v. Davis, supra, 36 Cal.4th at pp. 528-529.) 9
"' "A long-recognized exception to the warrant requirement exists when 'exigent circumstances' make necessary the conduct of a warrantless search."' [Citation.]" (People v. Ovieda, supra, 7 Cal.5th at p. 1041; People v. Suarez, supra, 10 Cal.5th at p. 151.) The exception "applies when 'the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.' [Citation.] The exception enables law enforcement officers to handle 'emergenc[ies]'-situations presenting a 'compelling need for official action and no time to secure a warrant.' [Citations.]" (Lange v. California, supra, 141 S.Ct. at p. 2017.)
The United States Supreme Court has recognized several such exigencies. An officer may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. (Lange v. California, supra, 141 S.Ct. at p. 2017; Kentucky v. King (2011) 563 U.S. 452, 460; Brigham City v. Stuart (2006) 547 U.S. 398, 403; People v. Ovieda, supra, 7 Cal.5th at pp. 1041-1042; People v. Troyer, supra, 51 Cal.4th at p. 602.) This type of exigency, sometimes denominated as the emergency aid exception, is "a well-recognized part of the exigent circumstances exception" (Ovieda, at p. 1048) and requires that officers have an objectively reasonable basis to believe an occupant is seriously injured or is in imminent danger of such injury. (Troyer, at pp. 602, 605; People v. Rubio (2019) 43 Cal.App.5th 342, 349.) An officer may also make a warrantless entry to ensure his or her own safety, to prevent the imminent destruction of evidence, to forestall a suspect's escape, to prevent serious damage to property, when in hot pursuit of a fleeing suspect, or when the officer has probable cause to believe a crime has been committed but there is 10 insufficient time to seek a warrant. (Lange, at p. 2017; Ovieda, at p. 1041; People v. Suarez, supra, 10 Cal.5th at p. 151.) Exigent circumstances situations "may arise when officers are responding to or investigating criminal activity and when there is a need for emergency aid, even if unrelated to criminal conduct." (Ovieda, at p. 1042.)
Officers may" 'seize any evidence that is in plain view during the course of their legitimate emergency activities.'" (People v. Ovieda, supra, 7 Cal.5th at p. 1042.) However, the "scope of a warrantless search 'must be "strictly circumscribed by the exigencies which justify its initiation."' [Citation.]." (People v. Troyer, supra, 51 Cal.4th at p. 612.) Once the "exigency has abated and the premises vacated, a subsequent warrantless entry or search is not justified." (Ovieda, at p. 1052.)
" '" 'There 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.]" (People v. Ovieda, supra, 7 Cal.5th at p. 1041.) If there is a legitimate reason for a search or seizure, an officer's subjective motivation is generally irrelevant. (Id. at p. 1052; Kentucky v. King, supra, 563 U.S. at p. 464; Whren v. United States (1996) 517 U.S. 806, 813.)
b. Discussion
The officers' first entry into the apartment was justified under the exigent circumstances doctrine because the facts known to them supported an objectively reasonable belief the girl was imminently threatened with injury. The officers knew that a neighbor heard a 13-year-old girl crying and screaming "Let me go," and "Don't touch me," and that a large, much older man blocked her path when she attempted to leave the apartment. 11 When officers knocked on the door shortly after the 911 call, they received no reply from inside the apartment, making the situation more concerning. Officers could reasonably infer the girl was being held against her will and forced to keep silent.These circumstances gave rise to a reasonable inference that the girl was potentially in danger of being the victim of some kind of physical violence, which could have resulted in serious injury. (See Schreiber v. Moe (6th Cir. 2010) 596 F.3d 323, 329-331 [despite the absence of girl's physical injuries, officer had objectively reasonable basis for believing she was in imminent danger where an anonymous caller reported hearing screaming and thought the girl was being beaten by her parents; when the officer arrived, he heard a male shouting, indicating "some kind of altercation"; the father reacted with hostility to the officer's arrival; and the girl's visibly distraught demeanor showed she was in distress]; People v. Ovieda, supra, 7 Cal.5th at p. 1042 [" 'officers may enter a home without a warrant . . . to protect an occupant from imminent injury' "; intervening in a physical altercation or crime in progress is one type of exigent circumstance].)
Until speaking with J.A., the officers also appear to have been operating under the belief that the girl's shirt was ripped, based on the misspelling of the word "striped" in the radio transmission. While this circumstance would have bolstered their conclusion that exigent circumstances existed, we do not consider it in our calculus.
Upon entering the apartment, the team of officers conducted only a brief sweep geared to see if the girl was inside and in peril. The gun was in plain sight, on the stove. For safety reasons, it was permissible for the officers to examine it. (See 12 People v. Suarez, supra, 10 Cal.5th at pp. 151-152.) Because, at that point, the officers did not know the gun was possessed by a felon, they did not seize it as evidence of a crime. (See People v. Ovieda, supra, 7 Cal.5th at p. 1043 ["[P]ossession of legal firearms in a home is generally lawful."].) The officers then left the apartment and closed the door. Their entry and walkthrough of the apartment was appropriately circumscribed to fit the exigency at hand, and no Fourth Amendment violation is apparent.
Solorzano makes several arguments in support of his contention that no exigency existed. First, he argues that the officers possessed too little information to conclude a crime was being committed, or the girl was injured. In his view, the "few facts" the officers knew "were subject to a variety of interpretations most of which lead to an innocent conclusion" and "[j]ust because a teenager was upset does not mean nefarious activity is occurring . . . ." But the circumstances J.A. reported were not particularly consistent with an argument about attending a party, as Solorzano suggests, or some other typical teenage controversy. J.A. reported hearing screams of "let me go" and "don't touch me," indicating something more serious than a benign argument. Instead, the circumstances more readily suggested that Solorzano was employing some type of bodily force against the girl. Officers could not be certain the much older Solorzano was actually the girl's uncle, and even if he had been, this would not have established that there was no exigency. The officers were not obliged to invent or assume an innocent explanation for the girl's screams. "The People's burden under the Fourth Amendment is to identify an objectively reasonable basis for believing that someone inside was in need of immediate 13 aid-not to eliminate every other reasonable inference that might also have been supported by those facts." (People v. Troyer, supra, 51 Cal.4th at p. 613.)
Solorzano further argues that J.A. did not "say the girl was injured" and did not report seeing "blood or bruises." But "[b]loodstains . . . 'are not prerequisites to a finding of exigency, '" nor are signs of a struggle. (People v. Troyer, supra, 51 Cal.4th at p. 612; see Schreiber v. Moe, supra, 596 F.3d at p. 331 [evidence of blood, broken objects, or gunfire, "are not prerequisites to a finding of exigency."].) Officers need not have" 'ironclad proof of "a likely serious, life-threatening" injury to invoke the emergency aid exception' to the warrant requirement." (Troyer, at p. 602.) Here, the exigency was not that the girl was already injured and in need of medical attention; it was that she was imminently threatened with injury. "The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties . . . ." (Brigham City v. Stuart, supra, 547 U.S. at p. 406.)
Solorzano further argues that when the officers arrived they heard no noises or screams, which should have alerted them that the girl was no longer in the apartment and any exigency had ceased to exist. And, in his view, the officers should have spoken with J.A. when they arrived, prior to entering the apartment; had they done so, they would have learned that the girl had left, obviating any need for them to enter the premises.
But J.A. did not state, during the 911 call, that the girl had left the apartment; he told the dispatcher that the man had blocked her path. Thus, at the time officers made the first entry, they had every reason to believe the girl was still inside the apartment. (See People v. Ovieda, supra, 7 Cal.5th at p. 1043 14 [the reasonableness of an officer's conduct depends upon the existence of facts available to him at the moment of the search or seizure].) The absence of continued screams could just as well have indicated that the girl had been silenced or was incapacitated. Even had the officers spoken to J.A. before making entry, they could not have been sure the girl was no longer in the apartment. J.A.'s statements were uncertain; he said Solorzano was "all tryin' to block her not going and then I think she finally kinda does go. And then he follows her, I think . . . ." And, it was a reasonable inference that even if the girl had fled, Solorzano could have caught her and forced her back to the apartment while J.A. was inside his apartment making the 911 call.
The same cannot be said, however, about the officers' warrantless second entry into the apartment, which we conclude was not justified under the exigent circumstances doctrine.
After making the first entry into the apartment, officers knew that neither the girl nor Solorzano was still inside. There were no circumstances reasonably suggesting Solorzano had forcibly returned her to the apartment. Officer Aguila saw a man matching Solorzano's description walking back toward the apartment building within approximately fifteen minutes of the first entry, but the man was alone. Solorzano managed to enter the apartment without the officers' knowledge, but they saw only him-not the girl-in the window. Although officers thereafter remained just outside the apartment, guarding the door until the second entry transpired, there was no evidence they heard screams, yelling, or voices indicating the girl was still inside. Officers Vidaure and Herrera heard tapping, but there was no basis for them to believe she was the source. In short, there was 15 no reason for officers to believe the girl had been forcibly returned to the apartment.
Even assuming the girl had returned to the apartment, at the time of the second entry there was no objectively reasonable basis for officers to believe she was injured, being hurt, or was in danger at that point. There was no evidence the girl had actually been injured, either while in the apartment before police arrived, or after their first entry. Neither J.A. nor W.E. described any actual injury, and no evidence suggested she had been injured thereafter. Officers knew there was a gun in the apartment, but no facts suggested Solorzano had used it against the girl or anyone else. Under these circumstances, we cannot say the belief that the girl was inside the apartment and was in danger was objectively reasonable. (See People v. Troyer, supra, 51 Cal.4th at p. 602.) Absent knowledge that Solorzano was a felon, the gun itself was not evidence of a crime. (See People v. Ovieda, supra, 7 Cal.5th at p. 1043 ["possession of legal firearms in a home is generally lawful [citation], and their presence in an apparently empty home does not, without more, constitute exigent circumstances."].) Entry into the apartment simply to resolve the hypothetical possibility that the girl was inside and needed help is insufficient and "dilutes the appropriate standard for exigency." (Id. at pp. 1048-1049.) We do not doubt that the officers here acted with good intentions and out of concern for the girl. But, "just as an officer's venial motives will generally not undermine an otherwise valid search, a benign intent cannot save an invalid one." (Id. at p. 1052.)
The People argue that the officers were entitled to reenter the apartment to retrieve the gun to prevent its destruction. They are incorrect. As discussed, it is well settled that officers 16 may conduct a warrantless entry to prevent "the imminent destruction of evidence." (People v. Ovieda, supra, 7 Cal.5th at p. 1042.) But, the gun was not, at that point, evidence of a crime. As noted, possession of a firearm is not illegal in and of itself. Until officers entered the second time, they knew neither Solorzano's identity nor his status as a felon. Thus, they had no basis to worry that the gun was evidence of a crime that might be destroyed. For the same reason, their contention that the officers were entitled to reenter the apartment to seize the gun because it was in plain view fails. Certainly, officers may reenter a home "to seize evidence observed in plain view during a lawful entry but not seized initially because the officer was performing a duty that took priority over the seizure of evidence." (People v. Superior Court (Chapman) (2012) 204 Cal.App.4th 1004, 1014.) But as stated, until the officers learned Solorzano's felon status, the gun was not evidence.
Citing People v. Ngaue (1992) 8 Cal.App.4th 896, the People alternatively argue that officers were entitled to reenter the apartment to retrieve the gun due to officer safety considerations. They argue that Solorzano's access to the revolver presented the risk he could use it, endangering his, the girl's, and the officers' lives. But People v. Ngaue bears no resemblance to the facts here. In Ngaue, codefendant Smith lured three men to a residence, where Ngaue robbed or attempted to rob all three at gunpoint. (Id. at pp. 900-901.) Deputies thereafter saw Ngaue outside the house and followed him inside in a hot pursuit. The deputies found Ngaue in the bathroom and observed a gun on the floor. Ngaue was handcuffed and placed in a patrol car; the gun was temporarily left in the bathroom. Smith, meanwhile, verbally abused and scuffled with the deputies, facilitating 17 Ngaue's escape. After the area was secured, one deputy instructed another to go retrieve the gun from the bathroom. (Id. at pp. 901-902.) On appeal, a different panel of this Division concluded the deputy's reentry to retrieve the gun did not violate the Fourth Amendment. (Id. at pp. 899-900.) The initial entry into the house was justified as a hot pursuit, and the reentry was justified for officer safety. (Id. at pp. 903-904.) Until the gun was retrieved, the deputies were at risk. While Ngaue was at large, he could have returned and retrieved the gun; Smith could also have picked it up. (Id. at p. 904.)
In People v. Suarez, supra, 10 Cal.5th 116, a seasonal worker brutally raped his sister-in-law in the trailer in which he lived on a large ranch. When officers arrived, she was bloody and injured, and her two young children, her husband, and her husband's brother were missing. (Id. at p. 130.) Two deputies entered the trailer to look for the defendant but did not find him. During a quick walk-through, they seized two rifles from the trailer for safekeeping, because they were concerned the defendant might return and they did not want him to use the firearms against them or anyone else. (Id. at p 149.) Exigent circumstances authorized the entry: the victim was bloody and injured; the defendant remained at large; and the family members, including two small children, were missing. People v. Suarez concluded the rifles were properly seized to prevent the defendant from returning and using them against the deputies or others. (Id. at p. 151.)
In the instant case, in contrast to the foregoing authorities, officers were not in hot pursuit of a fleeing suspect; Solorzano had already left the apartment when the officers arrived. Unlike in Ngaue and Suarez, there was no evidence he had just committed 18 a violent attack causing injury, or had used a gun on a victim, or that the gun was unlawfully possessed. Under the People's theory, officers could always seize any gun in a residence simply because a missing occupant could use it later. We do not think Ngaue and Suarez stand for this proposition.
Because the second entry was not justified under the exigent circumstances doctrine, Solorzano's arrest was not supported by probable cause. Felons may not possess firearms, so once officers knew Solorzano was a felon, the presence of the revolver-which had been in plain sight during the earlier, lawful search-would have provided probable cause for his arrest. (See § 29800 [prohibiting a felon from possessing a firearm]; People v. Bay (2019) 40 Cal.App.5th 126, 131-132; People v. Miranda (2011) 192 Cal.App.4th 398, 410; Horton v. California (1990) 496 U.S. 128, 135-136; People v. Gallegos (2002) 96 Cal.App.4th 612, 623.) But until they entered the apartment the second time, the officers did not know the identity of the person who lived there, or that the occupant was a felon. There was, therefore, a lack of probable cause for the arrest absent information learned in the second entry and search. (See People v. Celis (2004) 33 Cal.4th 667, 673 [to effectuate an arrest, an officer must have either a warrant or probable cause]; People v. Zaragoza (2016) 1 Cal.5th 21, 57; People v. Turner (2017) 13 Cal.App.5th 397, 404-405 [probable cause exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime].) Indeed, it appears the officers arrested Solorzano before they knew he was a felon, immediately upon finding him in bed. Although officers at the scene speculated that Solorzano was likely a felon, none of them testified that they 19 possessed information about his felon status before running a criminal records check after he was arrested.
We also note that the scope of the search conducted during the second entry clearly exceeded that which would have been permissible even had exigent circumstances existed. As noted, the scope of a warrantless search must be strictly circumscribed by the exigencies justifying its initiation. (People v. Troyer, supra, 51 Cal.4th at p. 612.) The search of various areas in the apartment, such as drawers, containers, and the toilet tank, were not justified by the exigent circumstances exception; clearly, the girl could not have been in these locations.
In sum, the trial court should have granted the suppression motion insofar as it pertained to information and evidence gleaned in the second entry into the apartment.
2. Assembly Bill 1950 and the probationary term
The trial court placed Solorzano on probation for a three-year term. When sentencing transpired in July of 2020, this term was permissible. (See former §§ 1203.1, subd. (a).) Effective January 1, 2021, while Solorzano's appeal was still pending in this court, the Legislature passed Assembly Bill 1950. That legislation provides that a felony probation term cannot exceed two years, subject to exceptions not applicable here. (See People v. Quinn (2021) 59 Cal.App.5th 874, 879; People v. Sims (2021) 59 Cal.App.5th 943, 955-956.)
Solorzano contends that Assembly Bill 1950 applies retroactively to his sentence and requires reduction of his probation term, and the People do not contest this claim. Assembly Bill 1950's "limitation on the maximum duration of felony probation terms constitutes an ameliorative change to the criminal law that applies retroactively to cases that were not 20 reduced to final judgment as of the new law's effective date." (People v. Sims, supra, 59 Cal.App.5th at p. 947; see also, e.g., People v. Czirban (2021) 67 Cal.App.5th 1073, 1095; People v. Quinn, supra, 59 Cal.App.5th at p. 883.)
On remand, if Solorzano opts to withdraw his plea, his contention will be moot. In the unlikely event he chooses to let his plea stand, the trial court must resentence him in compliance with the mandates of Assembly Bill 1950. 21
DISPOSITION
The trial court's order denying the suppression motion is reversed and the matter is remanded for further proceedings. On remand, the trial court is to permit Solorzano to withdraw his no contest plea. Should Solorzano decline to withdraw his plea, the probationary term must be modified to comport with Assembly Bill 1950.
We concur: EGERTON, J., VIRAMONTES, J. [*] 22
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.