Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F09126.
SIMS, J.
Defendant Alex Shchurov appeals following his conviction of two counts of forcible spousal rape (Pen. Code, § 262, subd. (a)(1)), forcible penetration by a foreign object (§ 289, subd. (a)(1)), and assault with a deadly weapon (a frying pan) and by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). Defendant contends the trial court erred in denying his motion to suppress evidence found in his home after sheriff’s deputies entered without a warrant. We conclude that exigent circumstances excused the warrant requirement, and therefore affirm the judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL BACKGROUND
We set forth the facts based on the evidence introduced during the hearing on the motion to suppress because defendant’s sole issue on appeal challenges the denial of his motion.
On October 18, 2006, the victim and her husband, the defendant, were having a dispute when Sacramento County Sheriff deputies arrived at their residence. Before leaving, the officers handed a Women Escaping a Violent Environment (WEAVE) pamphlet to the victim.
Later that evening, defendant grew angry when the victim’s cellular phone rang. Defendant grabbed the phone out of her hand and threw it to the floor where it broke into pieces. Defendant was further angered when he discovered the WEAVE pamphlet left by the deputies.
Defendant took the victim to his bedroom. He occupied a bedroom separate from the victim, who rented the master bedroom.
Defendant tied the victim’s hands and feet to the headboard and foot boards of his bed. In doing so, defendant used a pink dog leash, socks, and white duct tape to restrain her. He also had a kitchen knife next to him on the nightstand.
Defendant sexually assaulted the victim. During the sexual assault, the victim had to use the bathroom. Defendant untied her and accompanied her to the bathroom to prevent her from escaping. After the victim used the bathroom, defendant made her return to his bed. He tied her up again. Defendant ejaculated onto the WEAVE pamphlet.
The next morning, while defendant slept, the victim removed the tape and socks binding her, and placed them on his nightstand. She fled by climbing out through her bedroom window. The victim went to work.
Sometime between noon and 1:00 p.m., defendant drove to the victim’s workplace and parked his car in front of the building. He blared music and revved the engine. The victim’s manager called the sheriff. Sheriff’s deputies arrived shortly after 1:00 p.m.
The victim told the officers that defendant had sexually assaulted her during the prior evening. To corroborate her story, the victim told deputies that they might find a WEAVE pamphlet with defendant’s ejaculate at the residence along with duct tape residue on the headboard and footboard of his bed. She gave the deputies her consent to search the residence.
The deputies proceeded to the residence. Shortly before arriving, the deputies received a call informing them that defendant had telephoned the victim’s workplace telling her that he was at the residence. The deputies arrived at the residence about 45 minutes after they finished speaking with the victim.
Defendant’s car was parked in the driveway. The deputies set up a perimeter around the house, and then knocked on the door announcing themselves. Receiving no response, the deputies again knocked and announced themselves. Believing defendant was inside, the deputies tried to look into the windows to see if they could spot any movement. An officer saw a finger pull one of the blinds down to look through it. The deputies informed their dispatcher that they observed movement and were going to force entry into the residence.
An officer kicked the door, which flung open and hit the defendant. The deputies arrested defendant, and proceeded to clear the house to ensure that no one else was inside. In plain view, the officers saw a roll of white duct tape and a kitchen knife on the dresser in defendant’s room. To make sure no one was hiding, an officer opened defendant’s closet door and saw a pink dog leash on the shelf. Also in defendant’s bedroom, the deputies found duct tape residue on the headboard and footboard of his bed.
In the victim’s bedroom, they located the clothes that she had described wearing during the assault. In the trash can in her bedroom, the officers found fragments of the cellular phone.
In the kitchen, the officers found a garbage can containing numerous pieces of white duct tape, and socks wrapped with the same tape. The garbage can also contained a part of a WEAVE pamphlet. The rest of the pamphlet was found in an outside garbage can.
DISCUSSION
I. Exigent Circumstances Excused the Fourth Amendment Warrant Requirement for Entry into Defendant’s Residence
“‘The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In conformity with the rule at common law, a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.’” (Devenpeck v. Alford (2004) 543 U.S. 146, 152 [125 S.Ct. 588, 160 L.Ed.2d 537].) When, as here, the arrest occurs in the home, additional principles come into play. “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” (Payton v. New York (1980) 445 U.S. 573, 586 [100 S.Ct. 1371, 63 L.Ed.2d 639].) Indeed, “the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’” (Id. at p. 585 [100 S.Ct. 1371].) The requirement of a warrant “minimizes the danger of needless intrusions of that sort.” (Id. at p. 586 [100 S.Ct. 1371].)
“Yet, as with so much of its Fourth Amendment jurisprudence, the high court has stopped short of erecting a categorical bar. The presumption of unreasonableness that attaches to a warrantless entry into the home ‘can be overcome by a showing of one of the few “specifically established and well-delineated exceptions” to the warrant requirement (Katz v. United States (1967) 389 U.S. 347, 357 [88 S.Ct. 507, 19 L.Ed.2d 576]), such as “‘hot pursuit of a fleeing felon, or imminent destruction of evidence,... or the need to prevent a suspect’s escape, or the risk of danger to the police or to other persons inside or outside the dwelling....’”’” (People v. Thompson (2006) 38 Cal.4th 811, 817-818, quoting Minnesota v. Olson (1990) 495 U.S. 91, 100 [110 S.Ct. 1684, 109 L.Ed.2d 85].) Fourth Amendment jurisprudence refers to justifiable needs for immediate entry by the police as “exigent circumstances.”
“‘“[E]xigent 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. Panah (2005) 35 Cal.4th 395, 465, quoting People v. Ramey (1976) 16 Cal.3d 263, 276, italics added.) In determining whether the potential destruction of evidence excused the warrant requirement, we are guided by the California Supreme Court’s decision in People v. Williams (1989) 48 Cal.3d 1112, in which the court explained: “[T]he following factors [are] relevant to a determination of exigent circumstances: ‘First, that a grave offense is involved, particularly one that is a crime of violence... [¶] Second,... that the suspect is reasonably believed to be armed. Delay in arrest of an armed felon may well increase danger to the community.... [¶] Third, that there exists... a clear showing of probable cause... [¶] Fourth, strong reason to believe that the suspect is in the premises being entered. [¶] Fifth, a likelihood that the suspect will escape if not swiftly apprehended. [¶] Sixth, the circumstance that the entry, though not consented, is made peaceably.’” (Id. at pp. 1138-1139, quoting Dorman v. United States (D.C. Cir. 1970) 435 F.2d 385, 392-393.) Taking into account these considerations, we conclude that exigent circumstances excused the warrant requirement in this case.
Defendant committed a serious and violent offense by tying up the victim and sexually assaulting her. Moreover, in the commission of the offense, he had a weapon in the form of the kitchen knife lying on his nightstand.
The deputies had probable cause to believe that a crime had been committed after they spoke with victim, and it was reasonable to believe that there was a high risk that the evidence would degenerate, or be hidden or destroyed. The imminent disposal of these items constituted an exigent circumstance.
Moreover, the easy destructibility of the WEAVE pamphlet containing defendant’s ejaculate further supports the conclusion of exigent circumstance. The need to preserve an article containing a defendant’s semen was held to give rise to an exigent circumstance in United States v. Davis (8th Cir. 1986) 785 F.2d 610 at page 615. In Davis, the court of appeals held that the police justifiably entered the defendant’s residence without a warrant because “there was cause to believe evidence would be destroyed, and in fact semen was found on the underwear Davis was wearing....” (Ibid.) The evanescent nature of this evidence in a rape case supported the finding of exigent circumstance. (Ibid.) We reach the same conclusion here.
Indeed, objects saturated with bodily fluids constitute a classic type of evidence supporting the exigency exception to the warrant requirement. For example, in People v. Lanfrey (1998) 204 Cal.App.3d 491 at page 509, the court concluded that exigent circumstances existed in a murder investigation because “the amount of blood involved in the stabbings indicated that the suspect's clothing and his knife would be blood stained. An arrest would prevent the suspect from destroying that evidence.”
Here, the deputies had reason to suspect the destruction of evidence upon being informed that defendant was home and seeing a finger separate the window blinds. Observing officers surrounding his house, defendant could have quickly concluded that he needed to erase indicia of the sexual assault. During the time that the deputies would have had to wait to secure a warrant, defendant could have easily flushed the pamphlet, socks, and tape down the toilet. And, he would have had time to remove or obscure the tape residue. Thus, we reject defendant’s contention that the amount of time between the sexual assault and the arrival of the officers at the residence eliminated the possibility of exigent circumstance. The critical time period here began when the defendant had the opportunity to observe the deputies at his door and before they would have been able to secure a warrant.
Three minutes before arriving at the residence, the officers received information that defendant had spoken by phone with the victim. The officers were driving to the residence after hearing the victim tell them about the sexual assault. Not knowing the substance of the conversation between defendant and the victim, the officers could reasonably have concluded that defendant had been tipped off about their arrival and that the destruction of evidence was already underway. The California Supreme Court upheld the validity of warrantless entry in People v. Williams (1989) 48 Cal.3d 1112 at page 1139, explaining that “the possibility that defendant might have learned from friends or family that the police were looking for him and might, as a result, dispose of any blood-stained clothing, stolen property or the murder weapon made arrest all the more urgent.” (Id. at p. 1139.) Similarly, the deputies in this case had reason to worry about the destruction of evidence even as they were arriving at his residence.
Defendant counters that if he “had intended to destroy the evidence, it is likely that he would have done so once [the victim] had left the house... and well before the time that the police arrived at his house.” Defendant’s lack of motivation to destroy evidence prior to the arrival of the officers does not negate his incentive to do so once he had officers knocking on his door.
In People v. Hull (1995) 34 Cal.App.4th 1448 at page 1457, we concluded that “imminent danger of losing vital evidence made immediate entry into the residence reasonable.” Hull involved a police officer who arrived at a residence that he had probable cause to believe contained a stolen stereo. (Id. at p. 1452.) When the officer approached the residences, “[a]n occupant of the residence appeared to see [the officer] outside and moved toward the front of the house.” (Id. at pp. 1452, 1456.) The officer entered without a warrant. (Id. at p. 1452.)
In upholding the lawfulness of a warrantless entry based on exigent circumstances, we explained that “[w]hile the speakers, the main evidence indicating the defendant’s guilt, were not as readily disposable as drugs might be, the occupants of the house, knowing police action was imminent, could have disassembled or destroyed the speakers during the time it would have taken to obtain a warrant to search the residence. They also could have hidden the speakers.” (Hull, supra, 34 Cal.App.4th 1448, 1456, italics added.) Here, too, defendant’s observation of deputies surrounding his house could have impelled him to dispose of or hide the evidence of the sexual assault.
Defendant’s lack of ability to escape from a residence surrounded by sheriff’s deputies does not make a difference in our conclusion because the exigent circumstance in this case is founded on the potential for destruction of evidence rather than flight by the defendant.
That the deputies forced the door open does not negate the exigency. In People v. Fernandez (1967) 255 Cal.App.2d 842 at page 845, police officers knocked on the door of defendants’ residence and saw shadow underneath. Fearing that contraband might be destroyed, they forced the door open. (Id. at p. 844.) The fact that the officers forced the door did not undermine the legality of the entry under exigent circumstances. (Id. at pp. 846-847.)
II. Sentencing
Defendant accepted a negotiated plea agreement in which he pled guilty to counts 1 and 11 for forcible spousal rape (§ 262, subd. (a)(1)), count 2 for forcible penetration by a foreign object (§ 289, subd. (a)(1)), and count 8 for assault with a deadly weapon (§ 245, subd. (a)(1)). As agreed, the trial court sentenced defendant to an aggregate term of 20 years for the counts of conviction.
However, as defendant notes, “[t]he trial court did not dismiss the remaining counts or even address them at the time of sentencing.” The Attorney General concurs. We will correct the oversight. We need not remand this case to the trial court because correcting the error requires no exercise of discretion in selecting sentence terms or conditions. Moreover, the abstract of judgment correctly reflects the terms of the negotiated plea agreement. Accordingly, we dismiss the counts for which defendant was not convicted.
DISPOSITION
The judgment is affirmed as to counts 1, 2, 8, and 11. Counts 3, 4, 5, 6, 7, 9 and 10 are hereby dismissed.
We concur: SCOTLAND, P. J., RAYE, J.