Opinion
H036145
08-19-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERT TORREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC938905)
After his motion to suppress evidence was denied, defendant Robert Torrez pleaded no contest to possession or purchase of cocaine for sale and possession of marijuana for sale. (Health & Saf. Code, §§ 11351, 11359.) The court suspended sentence and ordered probation under specified conditions. On appeal, defendant seeks review of the order denying his suppression motion, contending that the evidence was obtained as a result of an illegal warrantless entry into his residence. He further contests two of the probation conditions. We will modify the probation order and otherwise affirm the judgment.
Background
At about 9:30 p.m. on March 29, 2009, Deputy Sheriff Todd Hoffman responded to a radio call regarding domestic violence with battery in progress. Just before arriving at the scene, Deputy Hoffman learned from dispatch that the reporting party, the mother of one of the residents, had stated that she had learned by telephone that her daughter was "getting beat up." She herself was on her way there. Three deputies simultaneously arrived at the residence, a small studio behind the main house. Deputy Marcuccillo knocked "very loudly" on the front door several times, announcing that the sheriff's department was there and "demanding entry." Initially there was no response; the deputies heard only a lot of loud banging inside. Then a male voice said, "Who is it? What do you want?" The deputies again identified themselves and demanded entry, but without a response.
Deputy Hoffman went to another door, pounded on it, and again demanded to be let inside. Again the male voice asked who it was and what he wanted, and the deputy answered the same way. There was still more banging. The deputy then tested the doorknob, found the door unlocked, and swung it open so he could see inside. He was confronted by a large Hispanic male in a pair of boxer shorts, blocking the deputy's view of the interior. With his gun drawn, Deputy Hoffman told the man, later identified as defendant, to get on the ground. Defendant at first did not comply, but when he saw the gun, he did so immediately. Deputy Marcuccillo handcuffed defendant and removed him from the residence. Deputy Hoffman then saw a partially dressed female adult, Emily Dominguez, sitting on a couch. She had a laceration on her lip, which was swollen and had fresh blood on it. There was a one-inch laceration along the bridge of her nose, which was swollen and red and had fresh clotted blood on it. She appeared to be "in a state of shock."
The entire apartment was in "disarray," as if a scuffle had taken place there. Deputy Hoffman also noticed a strong odor of marijuana inside. He "took a brief scan around the apartment" and saw in plain view 20 to 30 partially smoked marijuana cigarettes in an ashtray. He also saw a baggie containing what he "knew to be processed marijuana." After ascertaining that Dominguez was all right, the deputy asked if there were any drugs or weapons in the apartment. She indicated the marijuana he had already located. When asked why it smelled so heavily of marijuana, she told the deputy that they had just smoked a "marijuana joint." He asked if she would mind if he searched the apartment; she said she would not. Walking around the apartment, he saw a digital scale on which was a white chalky substance that looked like cocaine or methamphetamine.
Deputy Hoffman went outside to talk to defendant, while Deputy Bergstrom, a fourth deputy who had arrived by then, stayed inside with Dominguez. Deputy Hoffman asked defendant if he had any drugs or weapons in the apartment. Defendant replied that he had some marijuana he had grown for his own personal use. When asked about the white chalky substance, defendant said he had "a little bit of a coke problem," but nothing else was in the apartment. The deputy asked permission to search, and defendant answered, "Go ahead."
After retrieving his "K-9 partner" from the sheriff's vehicle, the deputy brought the dog inside and gave him the command to sniff. The dog alerted to two sources of drugs in addition to the substance on the digital scale. In a black bag at the bottom of a cabinet was a large amount of marijuana. In a cigar box was a baggie containing 14-15 grams of a white crystalline powder which appeared to be cocaine. In a cosmetic bag was a large amount of cash, a plastic container labeled "Mannitol," and a cell phone with several text messages indicating narcotics trafficking.
Defendant was charged with one count of purchase or possession of cocaine for sale (Health & Saf. Code, § 11351) and one count of possession of marijuana for sale (Health & Saf. Code, § 11359). After unsuccessfully moving to suppress evidence under Penal Code section 1538.5, he pleaded no contest to both counts. On August 19, 2010, the trial court suspended imposition of sentence and placed defendant on probation for three years, conditioned on service of six months in county jail.
Discussion
1. Motion to Suppress Evidence
"In California, issues relating to the suppression of evidence derived from governmental searches and seizures are reviewed under federal constitutional standards." (People v. Troyer (2011) 51 Cal.4th 599, 605.) It is the government's burden to show that a warrantless entry was justified by the need to protect or preserve life or avoid serious injury. (Michigan v. Fisher (2009) ____ U.S. ____, ____ .) However, "[w]here, as here, the police are called upon to respond to a crime reported to be in progress, we recognize that the police judgments should be afforded an extra degree of deference." (Reardon v. Wroan (7th Cir. 1987) 811 F.2d 1025, 1029.)
"In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court's resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review." (People v. Saunders (2006) 38 Cal.4th 1129, 1133-1134.) "On appeal we consider the correctness of the trial court's ruling itself, not the correctness of the trial court's reasons for reaching its decision." (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145 [italics omitted].)
Defendant's primary contention on appeal is that the trial court should have granted his motion to suppress all of the evidence collected in the search of the apartment because there was no justification for the initial warrantless entry into defendant's residence. Defendant clearly articulates the principles and rules governing such searches. As our Supreme Court explained in People v. Troyer, supra, 51 Cal.4th at page 602, " '[T]he "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." ' (Payton v. New York (1980) 445 U.S. 573, 585 . . .].) Thus, 'searches and seizures inside a home without a warrant are presumptively unreasonable.' (Id. at p. 586 . . . .) 'Nevertheless, because the ultimate touchstone of the Fourth Amendment is "reasonableness," the warrant requirement is subject to certain exceptions.' (Brigham City v. Stuart (2006) 547 U.S. 398, 403 . . . .) In particular, 'law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.' (Ibid.)" This is a specific application of the "exigent circumstances" exception to the warrant requirement for entry into a residence. "In this context, 'exigent circumstances' means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. 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." (People v. Ramey (1976) 16 Cal.3d 263, 276.)
The United States Supreme Court has repeatedly provided guidance on the "emergency aid" exception, cautioning that it "does not depend on the officers' subjective intent or the seriousness of any crime they are investigating when the emergency arises. [Citation.] It requires only 'an objectively reasonable basis for believing' . . . that 'a person within [the house] is in need of immediate aid.' " (Michigan v. Fisher, supra, 130 S.Ct. at p. 548, quoting Mincey v. Arizona (1978) 437 U.S. 385, 392.) Thus, "[a]n action is 'reasonable' under the Fourth Amendment, regardless of the individual officer's state of mind, 'as long as the circumstances, viewed objectively, justify [the] action.' [Citation.] The officer's subjective motivation is irrelevant." (Brigham City, Utah v. Stuart (2006) 547 U.S. 398, 404.)
Destruction of evidence is another recognized basis for finding exigent circumstances. Recently the United States Supreme Court refused to preclude the exception when the police are said to have "created the exigency" by knocking loudly on the door, prompting the occupants to begin destroying evidence. (See Kentucky v. Supreme Court (2011) ____ U.S. ____ .)
It is settled that "911 calls reporting an emergency can be enough to support warrantless searches under the exigent circumstances exception, particularly where, as here, the caller identified [herself]. [Citations.] A 911 call is one of the most common — and universally recognized — means through which police and other emergency personnel learn that there is someone in a dangerous situation who urgently needs help. This fits neatly with a central purpose of the exigent circumstances (or emergency) exception to the warrant requirement, namely, to ensure that the police or other government agents are able to assist persons in danger or otherwise in need of assistance." (United States v. Richardson (7th Cir. 2000) 208 F.3d 626, 630; see also People v. Jenkins (7th Cir. 2003) 329 F.3d 579, 581-582 [911 call regarding assault "possibly in progress," combined with hearing noise inside as if someone were standing up and falling down, was enough to cause a reasonable officer to fear for the safety of someone inside, thus justifying entry after identification].) In the same vein, courts have recognized "the combustible nature of domestic disputes, and have accorded great latitude to an officer's belief that warrantless entry was justified by exigent circumstances when the officer had substantial reason to believe that one of the parties to the dispute was in danger." (Tierney v. Davidson (2d Cir.1998) 133 F.3d 189, 197; accord, U.S. v. Brooks (9th Cir. 2004) 367 F.3d 1128, 1136.) "We do not suggest that domestic abuse cases create a per se exigent need for warrantless entry; rather, we must assess the total circumstances, presented to the law officer before a search, to determine if exigent circumstances relieved the officer of the customary need for a prior warrant." (U.S. v. Brooks, supra, 367 F.3d at p. 1136.)
Defendant minimizes the degree of exigency the deputies faced. He notes that the noises inside were like "furniture being moved"; yet he avoids mentioning that the reason the deputies were there in the first place was a 911 call which prompted a dispatch for an "in progress domestic violence battery." And the sounds coming from inside were not just furniture being moved, but a "loud movement and banging . . . like . . . furniture being moved around rapidly, which is hard to tell if, you know, somebody is being thrown into furniture or furniture is being moved . . . it sounded like furniture being overturned." Deputy Hoffman "didn't know what was going on, if somebody was being thrown around, being held down." These facts demonstrate that the officers were not acting from "mere speculation of injury" but from an objectively reasonable concern that violence with injury might be taking place as they stood outside the door, knocking to no avail.
Defendant protests that the facts underlying the entries in Michigan v. Fisher, Brigham City, and People v. Troyer involved more violence than occurred here. His observation is accurate. In Fisher the officers saw blood on a car outside and violent behavior inside, as well as a cut on the defendant's hand; in Brigham City officers saw a fight occurring, including a punch in the face which drew blood; and in Troyer there were injured victims outside and blood on the front door, suggesting the possibility of an injured person inside. But the United States Supreme Court has cautioned that investigating officers need not have "ironclad proof of 'a likely serious, life-threatening' injury" in order to apply the emergency aid exception to the warrant requirement, but need only an objectively reasonable basis to believe that medical assistance is needed, or that someone inside is in danger. (Michigan v. Fisher, supra, 130 S. Ct at p. 549.)
Defendant further attempts to distinguish People v. Higgins (1994) 26 Cal.App.4th 247 from the facts presented here. In Higgins, as in the present case, officers were responding to a report of physical domestic violence. The victim was frightened, but she had injuries which she minimized and she denied that anything was wrong. The officers nonetheless acted reasonably in entering, as they knew that a domestic violence victim often lies about having been harmed, and they were concerned that she was at risk of further harm. (Id. at pp. 254-255.)
That the circumstances presented to the sheriff's deputies here did not as plainly indicate ongoing violence as in the cases defendant distinguishes does not make the deputies' entry necessarily unreasonable. The deputies were not obligated to stand in front of the residence comparing the reported events and their observations with those of past cases. "[T]he business of policemen and firemen is to act, not to speculate or meditate on whether the report is correct. People could well die in emergencies if police tried to act with the calm deliberation associated with the judicial process." (Wayne v. United States (D.C. Cir. 1963) 318 F.2d 205, 212.)
We thus conclude that the circumstances before the sheriff's deputies would have indicated to a reasonable officer that entry into the apartment was necessary to render emergency aid to a person inside. Defendant does not dispute that "the police 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; Kentucky v. King, supra, ____ U.S. at p. ____, 131 S.Ct. at p. 1852.) He further does not question the validity of the ensuing consent given by either him or Dominguez, except as it was "tainted by the illegality" of the unlawful entry. In light of our conclusion that the entry was not proscribed by the Fourth Amendment, the trial court properly denied defendant's suppression motion.
2. Probation Conditions
Defendant challenges two of the conditions imposed by the trial court as a condition of probation. The first states, "The defendant shall not possess or consume alcohol or illegal drugs, or knowingly be anywhere illegal drugs are used or sold or alcohol is the major item of sale." Defendant objected to this condition, noting that alcohol "was not involved in the facts of this case at all" and that unlike illegal drugs, "alcohol is completely intertwined with American culture. It's served at every concert, every sporting event, every family gathering." The trial court, however, expressed the belief that "the ban on alcohol aids in his rehabilitation, because alcohol, although widespread in use, can lead to poor decision-making by people, and so that's why it's in there . . . ."
Penal Code section 1203.1 specifically states that in granting probation, the court is to determine what conditions are "fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer." (§ 1203.1, subd. (j).) Defendant acknowledges that the trial court has broad discretion to select appropriate probation conditions in an individual case, those aimed at promoting rehabilitation and the protection of public safety, as expressed in Penal Code section 1203.1. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) He nonetheless argues that the alcohol prohibition constitutes an abuse of that discretion.
"The trial court's discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, we have interpreted Penal Code section 1203.1 to require that probation conditions which regulate conduct 'not itself criminal' be 'reasonably related to the crime of which the defendant was convicted or to future criminality.' " (Id. at p. 1121, quoting People v. Lent (1975) 15 Cal.3d 481, 486.) Accordingly, a probation condition "will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .' [Citation.]" (People v. Lent, supra, 15 Cal.3d at p. 486.) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. . . . As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (People v. Olguin (2008) 45 Cal.4th 375, 379-380.)
In this case the record contains no indication that alcohol was involved in defendant's offenses, and alcohol possession and use are legal for someone defendant's age. The only issue, therefore, is whether the no-alcohol condition forbids conduct that is not reasonably related to future criminality. The analysis is highly fact-specific. (People v. Lindsay (1992) 10 Cal.App.4th 1642, 1644.)
Some courts have found alcohol-related conditions reasonable where the record reveals a factual basis to find that the defendant abused alcohol. For example, in People v. Lindsay, supra, the defendant had an " 'alcohol problem' " as well as an " 'addictive personality,' " and his crime involved selling drugs to support his addiction. (10 Cal.App.4th at pp. 1644-1645.) The addiction to drugs, combined with the defendant's alcohol problem, created a nexus between the potentially impaired judgment resulting from alcohol use and an increase in the potential for a drug abuse relapse in the future. (Id. at p. 1645.) The alcohol use prohibition was therefore reasonably related to future criminality. Similarly, in People v. Balestra (1999) 76 Cal.App.4th 57, the defendant smelled of alcohol at the time she committed elder abuse on her mother. The trial court commented at the plea hearing that the defendant " 'need[ed] treatment for what everybody appears to agree is an alcohol problem . . . .' " (Id. at p. 62.)
Other courts have imposed a no-alcohol condition even when the defendant had no history of alcohol abuse. In People v. Smith (1983) 145 Cal.App.3d 1032, the court concluded that a no-alcohol condition was reasonably related to the defendant's conviction for PCP possession and to his future criminality, because he had an "extensive involvement with drugs," was "emotionally unstable," and had "a poorly integrated personality." (Id. at pp. 1034-1035.) "Given the nexus between drug use and alcohol consumption," the court held, "we find no abuse of discretion in the imposition of the condition of probation relating to alcohol usage." (Id. at p. 1035.)
By contrast, in People v. Kiddoo (1990) 225 Cal.App.3d 922 (disapproved on another point in People v. Welch (1993) 5 Cal.4th 228, 237) the appellate court invalidated a condition prohibiting the defendant from possessing or consuming alcohol following his guilty plea to possession of methamphetamine. The defendant had been selling drugs to support a gambling habit; he had been using drugs and alcohol since he was 14, but he was only "a social drinker." (Id. at p. 927.) The Fourth District, Division Two, found no facts to support the conclusion that the prohibited conduct was reasonably related to future criminality, and it struck the condition.
In People v. Beal (1997) 60 Cal.App.4th 84, on the other hand, the Fourth District, Division One, disagreed with the implicit assumption in Kiddoo that alcohol use and drug abuse are not reasonably related. (Beal, supra, at p. 87.) In Beal the defendant pleaded guilty to possession for sale and simple possession of methamphetamine. Like the defendant in Kiddoo, she described herself as a "social drinker," but she did not view alcohol use to be a problem for her. (Ibid.) She did, however, admit that she suffered from chemical dependency, having used methamphetamine and other drugs for several years. The Beal court expressed the view that "empirical evidence shows that there is a nexus between drug use and alcohol consumption. It is well documented that the use of alcohol lessens self-control and thus may create a situation where the user has reduced ability to stay away from drugs. [Citations.] Presumably for this very reason, the vast majority of drug treatment programs, including the one Beal participates in as a condition of her probation, require abstinence from alcohol use." (Ibid.) The court concluded that the alcohol condition was reasonable because "alcohol use may lead to future criminality where the defendant has a history of substance abuse and is convicted of a drug-related offense." (Ibid.)
In this case, there is no evidence that defendant had any history of alcohol abuse, and his crime did not involve alcohol consumption. Nevertheless, as in Beal and Smith, defendant did admit to having a cocaine "problem," and he accepted a condition of probation that he enter a substance abuse recovery program while in custody. Giving "proper deference to a trial court's broad discretion in imposing terms of probation, particularly where those terms are intended to aid the probation officer in ensuring the probationer is complying with the fundamental probation condition, to obey all laws" (People v. Balestra, supra, 76 Cal.App.4th at p. 68), we cannot say that the no-alcohol condition was unreasonable in the circumstances presented. We therefore follow the reasoning in Beal, Smith, and Balestra and conclude that "alcohol use may lead to future criminality where the defendant has a history of substance abuse and is convicted of a drug-related offense." (People v. Beal, supra, 60 Cal.App.4th at p. 87; see also People v. Lindsay, supra, 10 Cal.App.4th at p. 1645 ["[a] person's exercise of judgment may be impaired by the consumption of alcohol, and . . . this could lead to his giving in to the use of drugs"].)
At the plea hearing defendant also told the court that he had been using marijuana for pain relief since the age of 18, but he had not produced the authorizing paperwork and records by the time of sentencing.
We reach a different conclusion with respect to the second condition defendant challenges. The trial court ordered defendant not to "possess or be involved in the use of a telephone pager device or any other portable communication equipment." Defendant objected on the ground that this condition was "overly broad and vague and essentially untenable in today's modern era." The trial court overruled the objection, however, noting that there was evidence that text messages had been used to "facilitate the sale of cocaine." On appeal the parties agree that conditions of probation must be narrowly drawn, and that the "portable communication equipment" condition is too broad. (Cf. In re Englebrecht (1998) 67 Cal.App.4th 486, 497 [injunction against use of pagers within one-mile area to curb gang activity overbroad and thus violative of First Amendment].) The People propose a modification to prohibit only use of these devices for criminal purposes. Defendant accepts the People's suggestion, and we likewise find it appropriate.
Disposition
The judgment is modified to amend the probation condition prohibiting the use of "a telephone pager device or any other portable communication equipment" to read as follows: "The defendant shall not use any paging device or portable communications equipment for any unlawful purpose, including the sale or purchase of illegal drugs or narcotics." As so modified, the judgment is affirmed.
ELIA, J.
WE CONCUR:
RUSHING, P. J.
PREMO, J.