Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 050507905
SIMONS, Acting P.J.
OPINION
Defendant Kenneth Silva appeals his conviction by no contest plea to possession of methamphetamine for sale (Health & Saf. Code, § 11378), possession of a sawed-off shotgun (Pen. Code, § 12020, subd. (a)(1)) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a).) His sole contention on appeal is that the magistrate erroneously denied his motion to suppress evidence (Pen. Code, § 1538.5, subd. (m).) We reject the contention and affirm.
The background facts are derived from the preliminary hearing at which defendant’s motion to suppress was litigated.
Simmons’s Testimony
In December 2003, Contra Costa Sheriff’s Sergeant Chris Simmons was a detective with the Special Investigations Unit, Narcotics Unit, investigating codefendant Joehary Armad. Simmons had received information from a confidential informant that Armad was involved in selling or transporting narcotics and drugs out of an El Sobrante residence. Thereafter, Simmons conducted surveillance at the residence about six times over a one to two week period. Armad appeared to be living at the residence and Simmons learned that Armad was on probation subject to a search condition.
At 11:11 a.m. on December 2, 2003, Simmons and nine other officers “were staged” to conduct a probation search at the residence. At that time they had no information about defendant. Simmons knocked on the door and announced “Sheriff’s Office.” Simmons could hear noise inside, but no one answered the door. The officers continued knocking and eventually forced entry through the metal screen door covering the front door. At that point, defendant came to the front door trying to hold back one of two aggressive dogs that were trying to advance toward the officers. Sergeant Mahone used “OC spray, pepper spray” on the other dog that was “aggressing” toward the officers. Defendant was inadvertently exposed to the spray, but continued to hold the dog. Defendant’s girlfriend, Kristen Phelps, who was inside the residence, and defendant were able to confine the dogs and the officers entered the residence. Defendant was detained in the front room and handcuffed. He said he did not need medical treatment as a result of his exposure to the spray, but was permitted to wash his face in the kitchen.
After the house was secured, Simmons advised defendant of his Miranda (Miranda v. Arizona (1966) 384 U.S. 436) rights and defendant responded, “Oh, yeah, I’ll tell you everything that’s going on here.” Defendant consented to the officers searching “anywhere in the residence.” At least two or three officers were in the vicinity while Simmons was talking with defendant. Subsequently, while Simmons and another officer were present, defendant signed a consent form for the residence.
A probation search of Armad’s bedroom and bathroom turned up methamphetamine, marijuana, and counterfeit money. Armad later admitted the drugs were his.
A search of defendant’s second story bedroom turned up indicia that defendant resided there and a baggie of suspected methamphetamine. A search of the downstairs turned up a loaded sawed-off shotgun in an unlocked gun safe. Michael Leuoma, another resident of the house, told Simmons that defendant purchased the shotgun in conjunction with some stolen stereo equipment, and defendant sawed off the shotgun. Simmons, who qualified as an expert in methamphetamine possession and possession for sale, opined that the methamphetamine found in defendant’s bedroom was a usable quantity and was possessed for sale.
At the scene, defendant initially told Simmons he was not a “big time” methamphetamine user, and gave drugs to his friends. Eventually, he told Simmons he was “forced” to sell methamphetamine “to make ends meet.” Defendant first told Simmons he did not know anything about the shotgun. Eventually he admitted the shotgun was stolen and that he had sawed it off a week or two before.
Phelps’s Testimony
Phelps testified that defendant, while holding a barking pit bull, answered the door when the officers knocked. Phelps said the officers entered the residence with their guns drawn and immediately sprayed the dog. Defendant was inadvertently sprayed in the face, causing his eyes to water. The police took defendant into the kitchen to wash his eyes. After defendant washed his eyes, Phelps heard the police ask him for consent to search the house. Defendant initially refused but consented after Simmons told him that if there was nothing to hide he should cooperate.
Defendant’s Testimony
Defendant testified he first heard Simmons saying the police were going to enter, and grabbed his dog. Seconds after the dog was sprayed, defendant stood up, was sprayed, and the spray hit his shoulder and went into his eyes. Police threatened to shoot the dog if defendant did not hold onto it. About ten minutes after being sprayed defendant calmed the dog down and was permitted to put it in the bathroom. Defendant said the spray caused his eyes and skin to burn and the pain was “excruciating.” Twenty or thirty minutes after being sprayed, he was allowed to wash his eyes out in the kitchen sink. After his eyes were washed out they still hurt. The officers told him to sit down and relax and the pain would go away. Defendant repeatedly asked if there was anything they could do because his handcuffs were tight and his skin was burning.
After defendant flushed his eyes, but while they were still burning and he remained handcuffed, an officer asked for his consent to search the house. After three or four times refusing to consent to a search, the officers kept “browbeating” him and eventually he agreed to cooperate by giving his consent to search his room. Police then escorted defendant outside where he again flushed his eyes with a hose.
Five minutes after giving consent and flushing his eyes, defendant said he wanted to retract his consent. At that point, defendant believed that the officers had already begun searching his upstairs bedroom. The officer said “no, it’s too late.” About 20 to 30 minutes later, after his room had been searched, defendant was presented with a consent form, which he signed. Defendant said his eyes did not stop burning until the next day when he was taken to the hospital for treatment.
Magistrate’s Ruling
In denying defendant’s suppression motion, the magistrate found the testimony of Simmons and Phelps credible for purposes of the court’s factual findings regarding consent, but found defendant’s testimony inconsistent and lacking in credibility. The magistrate noted that although Simmons said he asked defendant for his oral consent to search, defendant said Simmons was not there when he orally consented to the search. The magistrate also noted that at first defendant said Simmons was present when he orally consented and then said Simmons was not present. The magistrate also noted that Simmons said Silva at first denied sawing off the shotgun and then admitted he had done it.
The magistrate found that even if defendant retracted his consent, the retraction did not invalidate the search because defendant’s own testimony was that the retraction was given after the search was completed. The magistrate also found that although defendant was probably in a lot of pain, given the totality of the circumstances, his consent to search was validly given.
DISCUSSION
Defendant contends his motion to suppress was erroneously denied because his consent to search his bedroom was coerced and involuntary. He concedes the officers could validly search Armad’s room and the areas of the residence over which Armad exercised exclusive or joint control and does not challenge the search of those areas.
Consent is a recognized exception to the warrant requirement. (People v. James (1977) 19 Cal.3d 99, 106.) “ ‘The . . . voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, “The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court’s findingswhether express or impliedmust be upheld if supported by substantial evidence.” ’ ” (People v. Monterroso (2004) 34 Cal.4th 743, 758, quoting People v. James, supra, 19 Cal.3dat p. 107.) When a search is sought to be justified on the basis of consent, the consent must be known or apparent to the searching officer before the search is conducted. (People v. Lazalde (2004) 120 Cal.App.4th 858, 864-865.) In determining “if the prosecution has met its burden of establishing the consent exception to the warrant requirement, the trial court determines whether an officer's belief that he or she had consent to search is objectively reasonable under the circumstances.” (Id. at p. 865.)
Defendant contends the prosecution failed to prove that his consent was unaffected by duress or coercion and was not mere acquiescence to an assertion of police force and the officer’s claim of authority. In determining whether a consent to search was voluntary, a court considers, among other factors, the following: “ ‘(1) whether the person was in custody; (2) whether the arresting officers ha[d] their guns drawn; (3) whether Miranda warnings ha[d] been given; (4) whether the person was told [he or] she ha[d] a right not to consent; and (5) whether the person was told a search warrant could be obtained.’ ” (People v. Ramirez (1997) 59 Cal.App.4th 1548, 1558, quoting U.S. v. Carbajal (9th Cir. 1992) 956 F.2d 924, 930, fn. 3.)
Defendant argues that he consented to the search of his home and bedroom while physically restrained, frightened and in pain. Specifically, he argues that after having his home forcibly entered by ten officers with drawn guns, being sprayed with pepper spray and handcuffed, no reasonable person would believe he or she was free to refuse to consent to a search. He also argues that due to his persistent pain after being sprayed his “senses were clouded and he was distracted,” a state in which “he was particularly vulnerable to coercion.” In addition, defendant argues that after he attempted to refuse consent, the officers “continued to pressure and cajole,” by implying with their words and actions that it would be unwise and futile for him to refuse. He asserts the officers never told him he had the right to refuse consent or that Armad’s probation condition permitted the officers only to search Armad’s bedroom and the areas of the house under Armad’s exclusive and joint control.
Defendant’s assertions that his “senses were clouded and he was distracted,” a state in which he was “particularly vulnerable to coercion,” and that the officers implied by their words and actions that it would be unwise and futile for him to refuse to consent to a search are speculative and unsupported by the record. That defendant was detained and handcuffed at the time of giving consent, and was not told he had a right not to consent were only two factors considered by the magistrate in determining the voluntariness of defendant’s consent. (People v. Monterroso, supra, 34 Cal.4th at p. 758.) Despite the fact that he was likely in pain at the time he gave his consent, he had refused medical treatment. The record neither contains evidence nor permits any inference that the officers used the defendant’s pain to pressure him into consenting to the search by withholding treatment or promising treatment if he consented. In addition, the record neither contains evidence nor permits any inference that the officers by their words or actions coerced defendant into consenting to the search by promises of leniency or threats of punishment. We conclude the record supports the magistrate’s conclusion that defendant’s consent was voluntary. The motion to suppress was properly denied.
DISPOSITION
The judgment is affirmed.
We concur GEMELLO, J., NEEDHAM, J.