Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 211232
Mihara, J.
After defendant Saul Carrasco Nevarez’s suppression motion was denied, he pleaded no contest to one count of manufacturing a controlled substance (Health & Saf. Code, § 11379.6, subd. (a)) and one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378). He admitted that the quantity involved in the manufacturing offense exceeded three gallons of liquid (Health & Saf. Code, § 11379.8, subd. (a)(1)) and that the quantity of methamphetamine involved in the possession offense exceeded four kilograms by weight (Health & Saf. Code, 11370.4, subd. (b)). His pleas and admissions were entered in exchange for a court offer of six years in state prison. The trial court imposed the lower term of three years for the manufacturing count, a consecutive three-year term for its enhancement, and a concurrent two-year term for the possession count. The court struck the punishment for the enhancement attached to the possession count.
On appeal, defendant contends that his suppression motion should have been granted. He claims his Fourth Amendment rights were violated when a police officer, who arrived at the residence in response to a neighbor’s call regarding a possible burglary of the residence, pushed further open the open front door of the residence and made observations through the doorway. He also contends that his Fourth Amendment rights were violated when, based on the first police officer’s observations through the open door, a second officer conducted a brief safety inspection of the residence. In addition, defendant claims that his trial counsel was prejudicially deficient in failing to elicit testimony at the suppression hearing regarding a second call from the neighbor. Defendant also challenges his sentence on the ground that the trial court erred in imposing an unstayed concurrent term for the possession offense rather than staying that term under Penal Code section 654. We conclude that the trial court did not err in denying defendant’s suppression motion because the first police officer’s actions fell within the community caretaking exception to the Fourth Amendment and the second police officer’s actions were justified by exigent circumstances. Defendant has failed to show that his trial counsel was prejudicially deficient. However, we find that the trial court erred in failing to stay the concurrent term under Penal Code section 654, and we modify the judgment to stay that term.
I. Evidence Presented At Evidentiary Hearing on Suppression Motion
On August 10, 2007, at about 4:55 a.m., San Jose Police Officer Daniel Corral was dispatched to a house at 7291 Taranga Court in response to a call. The caller, who lived next door to that house, had stated that he had seen four men coming out of that house carrying bags. The caller had “said they might have been stealing items” from the house. The caller also reported that there was a dark-blue or black vehicle parked in front of the house.
Corral and a second officer approached the front door of the house. The house was a single-story home with a fence “all the way around the front of the house.” Corral approached the house on a “little entryway” opening in the fence that led to the house’s front door. He found the front door open “[m]aybe a foot.” Corral could not see into the house through this opening. There were no lights on inside the house. Corral called out “ ‘San Jose Police. Is anyone home?’ ” He received no response, heard no sound, and saw no movement in the house. Corral then pushed the front door open to “make sure everything is okay.” Corral did not enter the house, but “my hand did.” He shined his flashlight inside the house, and immediately saw numerous indications that the house was a drug lab. Corral saw a large plastic tub containing a dark liquid. He also saw four fans, which were on, and were directed toward the fireplace and chimney. A “big can” labeled “Acetone” was sitting on top of a table. The windows were “blacked out.” The sliding glass door had a curtain drawn over it. One of the windows was open.
Corral believed that the house posed a health hazard, and he decided to “back out.” He contacted his sergeant and asked for additional units and narcotics officers to be summoned. Corral and the other officer walked around to the back of the house and confirmed that all of the house’s windows were covered.
Special Agent Gabriel Escobedo, who was employed by the California Department of Narcotic Enforcement, arrived at the house at 6:40 a.m. in response to Corral’s request for assistance. Escobedo specialized in investigating drug labs. His role was to “enter the residence to assure that there is no immediate danger to the officers at the scene or the neighborhood.” Escobedo learned of Corral’s observations. He and a fellow agent then entered the house to “assure that there was no immediate danger.” They wanted to ensure that there were no fumes or fire hazards from chemicals inside the house. Both of them donned safety gloves and air purifier respirators before they entered the house. Escobedo made additional observations inside the house that confirmed that the house was a clandestine methamphetamine “ice conversion” lab. The two agents walked through the entire single-story home in about 15 minutes. The bedrooms contained no beds or clothing.
“Ice conversion” refers to the process by which powder methamphetamine is purified into “glass shards.” These shards are referred to as “ice.”
Escobedo reported his observations to San Jose Police Officer Rafael Varele. Varele prepared an affidavit and applied for and received a search warrant for the house. The search warrant was issued at about noon. Varele spoke with a neighbor who provided Varele with the license number of a car that he had seen in the house’s driveway. The license plate number was provided to San Jose Police Officer Robert Williams, who was assigned to “perimeter security” while the house was being processed.
At 2:35 p.m. that afternoon, Williams saw a white Honda Accord approach the south end of the street at “a pretty rapid rate.” The Honda’s license plate number matched the license plate number provided by the neighbor. The Honda “began to veer towards” Williams, who was parked on the same street as the house, but then the Honda “continued straight.” Williams followed the Honda in his patrol car, and he observed the Honda fail to stop at two stop signs. He activated his lights and siren, and the Honda pulled over.
Defendant was driving the Honda, and he consented to a search of the car. Williams found a gas mask, rubber gloves, and wool or cotton gloves in the trunk of the car. The rubber gloves had a chemical substance on them. Williams also found receipts in the car for “Acetoner.” Defendant’s pocket contained keys to the front door of the house in which the drug lab had been found.
II. Procedural Background
Defendant was charged by indictment with one count of manufacturing a controlled substance (Health & Saf. Code, § 11379.6, subd. (a)) and one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378). It was further alleged that the quantity involved in the manufacturing offense exceeded three gallons of liquid (Health & Saf. Code, § 11379.8, subd. (a)(1)) and that the quantity of methamphetamine involved in the possession offense exceeded four kilograms by weight (Health & Saf. Code, 11370.4, subd. (b)).
Defendant filed a motion to traverse the search warrant and suppress the evidence. Corral, Escobedo, Varele, and Williams testified at the evidentiary hearing on defendant’s motion. Defendant’s trial counsel argued that Corral had made a warrantless entry into the house when he pushed the door further open. He also argued that there were no exigent circumstances when Escobedo made his safety inspection because a long period had passed since Corral’s observations, and the police had not warned neighbors of any danger. The prosecutor argued that Corral’s actions were justified as community caretaking and Escobedo’s actions were justified by exigent circumstances.
The trial court found that Corral “did not enter the residence....” It concluded that the officers’ actions “were reasonable and lawful under the exigent circumstances doctrine” and “were also lawful as a part of their community caretaking functions.” The court denied defendant’s motion.
At a change of plea hearing, defendant pleaded no contest to both counts and admitted the enhancement allegations. His trial counsel asserted that Penal Code section 654 precluded punishment for both counts. During the plea colloquy, the court advised defendant that “both sides agree that count two [the possession count] is subject to the prohibition against double punishment under 654....” Defendant’s pleas and admissions were entered in exchange for “an offer by the court” of a six-year state prison term, to which the prosecution objected.
At the sentencing hearing, the court imposed the “stipulated” three-year lower term for the manufacturing count, a consecutive three-year term for the enhancement on that count, and a concurrent “stipulated” two-year term for the possession count. The court struck the punishment for the enhancement on the possession count under Penal Code section 1385 “to effectuate the negotiated disposition of six.” Defendant’s trial counsel did not object to the court’s imposition of an unstayed term for the possession count. Defendant filed a timely notice of appeal.
III. Discussion
A. Suppression Motion
Defendant makes three separate contentions regarding his suppression motion. First, he claims that Corral’s actions cannot be justified by either exigent circumstances or community caretaking. Second, he contends that his trial counsel’s failure to elicit further testimony about a second call was prejudicially deficient. Third, defendant maintains that Escobedo’s actions cannot be justified by exigent circumstances.
1. Corral’s Actions
The critical question is whether Corral’s actions can be justified as being pursuant to his community caretaking functions rather than law enforcement activities. The seminal case on community caretaking is the California Supreme Court’s plurality opinion in People v. Ray (1999) 21 Cal.4th 464 (Ray).
In Ray, the police received a report in the afternoon that the door to a residence had been open all day “ ‘and it’s all a shambles inside.’ ” (Ray, supra, 21 Cal.4th at p. 468.) The reporting party did not believe that anyone was inside the residence. (Ray, at p. 468.) When the officers arrived, they found the front door open about two feet. (Ray, at p. 468.) Looking through the opening, the officers could see that the inside of the residence had been “ransacked.” They knocked and announced their presence, but there was no response. The officers decided to enter the residence to see if there was anyone inside who needed assistance and to determine if a burglary had been committed or was in progress. (Ray, at p. 468.) After entering the residence, they observed a large quantity of cocaine inside the residence and thereafter obtained a search warrant for the residence based on these observations. (Ray, at pp. 468-469.) The trial court granted the defendant’s suppression motion. (Ray, at p. 469.) The Court of Appeal reversed, and the California Supreme Court granted review. (Ray, at pp. 469-470.)
The three-justice plurality lead opinion concluded that the officers’ entry was justified by the community caretaking exception, while the three-justice concurring opinion reasoned that the officers’ entry was justified by exigent circumstances. (Ray, supra, 21 Cal.4th at pp. 478 (Brown, J., lead opinion), 480-482 (George, C. J., concurring).) The plurality opinion began by distinguishing between the exigent circumstances exception to the warrant requirement and the community caretaking exception. (Ray, at p. 470.) “ ‘When the police act pursuant to the exigent circumstances exception, they are searching for evidence or perpetrators of a crime. Accordingly, in addition to showing the existence of an emergency leaving no time for a warrant, they must also possess probable cause that the premises to be searched contains such evidence or suspects. [Citations.] In contrast, the community caretaker exception is only invoked when the police are not engaged in crime-solving activities.’ ” (Ray, at p. 471.) “ ‘[T]he defining characteristic of community caretaking functions is that they are totally unrelated to the criminal investigation duties of the police.’ [Citation.] Upon entering a dwelling, officers view the occupant as a potential victim, not as a potential suspect.” (Ray, at p. 471.)
“ ‘Community caretaking activities are varied and are performed for different reasons.’ [Citation.] Each variant must be assessed according to its own rationale on a case-by-case basis. ‘Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place.’ ” (Ray, supra, 21 Cal.4th at p. 472.) “Under the community caretaking exception, circumstances short of a perceived emergency may justify a warrantless entry, including the protection of property, as ‘where the police reasonably believe that the premises have recently been or are being burglarized.’ [Citation.] ‘Although the case law attaches slightly greater weight to the protection of persons from harm than to the protection of property from theft, many of the cases involving possible burglaries or breakings and enterings stress the dual community caretaking purpose of protecting both. [Citations.]’ [Citation.] Of necessity, officers may enter premises to resolve the situation and take further action if they discover a burglary has occurred or their assistance is otherwise required.” (Ray, at p. 473.)
“ ‘When the police cross a threshold not in their criminal investigatory capacity but as part of their community caretaking function, it is clear that the standard for assessing the Fourth Amendment propriety of such conduct is whether they possessed a reasonable basis for doing what they did.’ ” (Ray, supra, 21 Cal.4th at p. 476, fn. omitted.) “The appropriate standard under the community caretaking exception is one of reasonableness: Given the known facts, would a prudent and reasonable officer have perceived a need to act in the proper discharge of his or her community caretaking functions? Which is not to say that every open door—even in an urban environment—will justify a warrantless entry to conduct further inquiry. Rather, as in other contexts, ‘in determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or “hunches,” but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific and articulable facts from which he concluded that his action was necessary.’ ” (Ray, at pp. 476-477.)
“[T]wo aspects [are] critical to maintaining the essential constitutional balance. First, the authority granted law enforcement is narrowly delimited by the known facts viewed in light of the rationale for the exception. ‘The privilege to enter to render aid does not, of course, justify a search of the premises for other purposes. [Citation.] To the contrary, the warrantless search of a dwelling must be suitably circumscribed to serve the exigency which prompted it. [Citations.]’ [Citation.] ‘The officer’s post-entry conduct must be carefully limited to achieving the objective which justified the entry—the officer may do no more than is reasonably necessary to ascertain whether someone is in need of assistance [or property is at risk] and to provide that assistance [or to protect that property].’ [Citation.] [¶] Second, ‘courts must be especially vigilant in guarding against subterfuge, that is, a false reliance upon the [personal safety or] property protection rationale when the real purpose was to seek out evidence of crime.’ [Citations.] ‘The entry cannot be made on the pretext to search for contraband or illegal activity rather than to look for [burglary] suspects and to preserve an occupant’s property. [Citation.]’” (Ray, supra, 21 Cal.4th at p. 477.)
The facts before us even more strongly support application of the community caretaking exception than did the facts in Ray. In each case, police officers arrived at a residence in response to a caller who expressed concern about the residence. In Ray, as here, the police officers found the front door partially open. In Ray the police officers encountered this situation in the afternoon, while Corral encountered an open door just before 5:00 a.m. An open residence door is far more alarming in the wee hours than it is in the midst of the day. The officers in Ray were able to see into the residence through the partially open door, but their observations only confirmed what the caller had told them. Here, Corral was aware from the caller that a group of men had recently left the residence carrying bags. The ransacked nature of the residence in Ray indicated that a burglary had taken place, just as the caller’s report indicated here. The caller in Ray had indicated that the residence’s door had been open all day, while here the caller’s report, combined with the officers’ observation of the partially open front door, suggested that the door had recently been left in this condition. This fact made the situation facing Corral far more emergent than the situation that faced the officers in Ray. The officers in Ray, like Corral, announced themselves and received no response. Finally, the officers in Ray entered the residence and walked through it, while Corral’s intrusion into the house was limited to pushing the partially open door further open.
Corral’s actions were a carefully circumscribed and reasonable response to specific and articulable facts which indicated that the house had just been burglarized. This type of action is precisely what is permitted under the community caretaking exception. (Ray, supra, 21 Cal.4th at pp. 471, 473.) While we recognize that Ray was a plurality opinion, it was a three-justice opinion, and the three-justice concurring opinion found that those same facts supported application of the exigent circumstances exception. The facts are considerably stronger here than they were in Ray, and the situation faced by Corral was more emergent and troubling than the one in Ray. Consequently, it is clear that we are bound by the California Supreme Court’s holding in Ray that either the community caretaking exception or the exigent circumstances exception applies to these facts (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and Corral therefore did not violate defendant’s Fourth Amendment rights in pushing further open the open front door of the house.
2. Ineffective Assistance
Defendant contends that his trial counsel was prejudicially deficient in failing to adduce evidence at the evidentiary hearing that the caller had called a second time to report that the men were leaving the house in a vehicle.
Varele testified at the evidentiary hearing, on cross-examination by defendant’s trial counsel, that he recalled a conversation with Corral about a subsequent call indicating that the men were driving away from the residence in a vehicle. Varele testified that Corral had not provided him with “the full details of how the call came out from dispatch.” Defendant’s trial counsel did not call any witnesses at the evidentiary hearing, and he did not attempt to recall Corral after Varele gave this testimony.
When a defendant challenges his conviction based on a claim of ineffective assistance of counsel, he must prove that counsel’s performance was deficient and that his defense was prejudiced by those deficiencies. (People v. Ledesma (1987) 43 Cal.3d 171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” (Strickland, at p. 687.) “Judicial scrutiny of counsel’s performance must be highly deferential... a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Strickland, at p. 689.)
Defendant’s contention fails because he cannot show that his defense was prejudiced by his trial counsel’s failure to adduce additional evidence about the second call. The evidence that was adduced at the evidentiary hearing already established that the caller had reported that the men had been seen leaving the house and mentioned a vehicle in the driveway. Additional evidence that Corral was aware that the caller had called again to say that the men had left in the vehicle would have added nothing to the evidence before the court. The critical factors establishing the validity of Corral’s actions were the caller’s report of a possible burglary, the timing of the caller’s observations, and the presence of an open door to the possibly burglarized home at 5:00 a.m. The fact that the suspected burglars had just fled in a vehicle was readily inferable from the caller’s first call and had no significant impact on the justification for Corral’s actions. Defendant has not established ineffective assistance of counsel.
3. Escobedo’s Actions
Defendant maintains that Escobedo’s actions were not justified by 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. Ramey (1976) 16 Cal.3d 263, 276.)
Defendant relies on People v. Baird (1985) 168 Cal.App.3d 237 (Baird). In Baird, an officer smelled ether as he drove along a road and decided that it was coming from a particular address. (Baird, at p. 240.) The first officer summoned two additional officers, and a second officer also smelled ether coming from that address. (Baird, at p. 240.) An hour later, the second officer contacted the district attorney’s office and was told that he did not have enough information to obtain a search warrant or enter the premises. (Baird, at p. 240.) He contacted the fire department and asked that the fire marshal call him. Three hours later, the fire marshal contacted the second officer. The officer told the fire marshal that he wanted the fire marshal to investigate the source of the ether because the officer suspected that there was a clandestine drug lab at that address. (Baird, at p. 240.) Another hour later, a group of law enforcement officers cut a chain on a gate to that address and crossed a bridge over a creek to reach the defendant’s yard. (Baird, at p. 241.) After encountering the defendant in his yard, the officers and the fire marshal entered the house and found evidence of a drug lab inside. (Baird, at p. 241.)
The trial court found exigent circumstances and denied the defendant’s suppression motion. However, the Court of Appeal concluded that the officers had not acted under exigent circumstances because there was no evidence that any of the officers or the fire marshal “believed that the situation posed an imminent danger and required immediate action when they decided to enter the premises.” (Baird, supra, 168 Cal.App.3d at p. 245.) The court noted that five hours had elapsed between the first officer smelling ether and the entry, and, during that period of time, the officers saw a car going over the bridge to the property but did nothing to warn the occupants of the car of any danger. (Baird, at p. 245.)
“[T]here is no absolute rule that can accommodate every warrantless entry into premises housing a drug laboratory. It is manifest that the emergency nature of each situation must be evaluated on its own facts.” (People v. Duncan (1986) 42 Cal.3d 91, 103.) Here, unlike in Baird, there was ample evidence that Corral and Escobedo believed that there was imminent danger and that immediate action was required. Corral saw volatile chemicals inside the home and apparatus that indicated that the house was being used as a drug lab. He believed that the house posed a health hazard, and his actions in immediately backing away from the house after making these observations verified the seriousness of his concern. Corral immediately summoned specialized narcotics officers. Escobedo arrived about an hour and a half later. He determined that it was necessary to enter the house to ensure that there were no fumes or fire hazards from chemicals inside the house that could pose a danger to the officers on the scene or the neighbors. His belief that the house posed a serious danger was demonstrated by the fact that he and his fellow officer donned safety gloves and air purifier respirators before they entered the house.
Here, as opposed to Baird, the evidence reflected that the initial observation was followed by immediate summoning of specialized assistance. While it took over an hour for that assistance to arrive, the scene was secured and monitored throughout that period. No one was allowed to come close to the house, as Corral believed that the house posed a health hazard. Escobedo’s brief entry into the home was intended solely to ensure the safety of the officers on the scene and the neighbors. In contrast to Baird, the house here was in a residential neighborhood with close neighbors. Escobedo’s belief in the danger posed by the house was shown by the precautions that he took before entering. Under these circumstances, the trial court did not err in concluding that Escobedo’s actions were justified by an emergency situation that required swift action to forestall imminent danger to life and property.
B. Sentencing
Defendant’s final contention is that the trial court erred in failing to stay his sentence for the possession count under Penal Code section 654.
We believe that the trial court’s failure to stay the sentence for the possession count was erroneous because the court had advised defendant at the time he entered his pleas that “both sides agree that count two [the possession count] is subject to the prohibition against double punishment under 654.” At the sentencing hearing, the court provided no explanation whatsoever for its decision to impose an unstayed concurrent term for the possession count other than to characterize that term as “stipulated.” In light of the court’s advisement to defendant at the change of plea hearing, and the absence of any indication that the court subsequently decided that it disagreed with the parties on that point, we are convinced that the trial court’s failure to stay the concurrent term for the possession count under Penal Code section 654 was a mistake that the court did not intend. While a trial court might be able to discern separate intents and objectives for these two counts, this record does not support a conclusion that the trial court in fact made such a finding. In our view, the appropriate disposition is to stay the concurrent term in accordance with the trial court’s advisement to defendant at the time of his pleas.
IV. Disposition
The judgment is hereby modified to stay under Penal Code section 654 the concurrent term imposed for the possession count. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment reflecting this modification and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
I CONCUR: Bamattre-Manoukian, Acting P. J.
McAdams, J.
I concur in the judgment and join all aspects of the majority opinion, except one: I would justify the actions of San Jose Police Officer Daniel Corral under the “exigent circumstances” exception to the warrant requirement, not under the “community caretaking” exception.
The “exigent circumstances” exception was discussed in the three-justice opinion by C.J. George, which concurred with the three-justice lead opinion by J. Brown, in People v. Ray (1999) 21 Cal.4th 464, 480-482 (Ray). This concurring opinion relied on language in the earlier case of People v. Duncan (1986) 42 Cal.3d 91 (Duncan). Like the case before us, the police entry in both Ray and Duncan followed a call to law enforcement indicating a possible burglary in progress. (Ray, at p. 468; Duncan, at pp. 95-96.) Justifying the initial warrantless entry, the Duncan court explained: “We have defined ‘exigent circumstances’ to include ‘an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property....’ [Citation.] The action must be ‘prompted by the motive of preserving life or property and [must] reasonably appear[] to the actor to be necessary for that purpose.’ ” (Duncan, at p. 97.)
Here, just as in Duncan and Ray, the entry by Officer Corral was justified by the exigent circumstances of a possible burglary in progress. (Duncan, supra, 42 Cal.3d at pp. 98-99; Ray, supra, 21 Cal.4th at p. 481.) The officer reasonably believed that a burglary was underway or had occurred moments earlier and there might be people inside in need of assistance. Such imminent danger to persons or property provides sufficient justification for the officer’s actions.
Under the facts of this case, I see no need to rely on the concept of “community caretaking,” described in the Ray lead opinion as a separate exception justifying warrantless entry, applicable to “circumstances short of a perceived emergency.” (Ray, supra,21 Cal.4th at p. 473.) That opinion expresses the view that “the emergency aid doctrine is not a subcategory of the exigent circumstances exception to the warrant requirement.” (Id. at p. 471) That view may not be widely shared today, however. (See, e.g., People v. Rogers (2009) 46 Cal.4th 1136 [holding that the warrantless entry into storage rooms to search for a missing person was justified under the exigent circumstances doctrine]; Brigham City, Utah v. Stuart (2006) 547 U.S. 398, 403 [viewing the rendering of emergency assistance viewed as an “exigency obviating the requirement of a warrant”].)
Since the entry of Officer Corral can readily be justified under the more well-established “exigent circumstances” exception to the warrant requirement, I would rest the decision on that basis.