People v. Mathews

• Decision Date: 25 May 1994
• Docket Number: No. B068663,B068663
• Citation: 30 Cal.Rptr.2d 330,25 Cal.App.4th 89
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Klee Green MATHEWS, Defendant and Appellant. Crim.

Page 330

30 Cal.Rptr.2d 330

25 Cal.App.4th 89

The PEOPLE, Plaintiff and Respondent, v.Klee Green MATHEWS, Defendant and Appellant.

Crim. No. B068663.

Court of Appeal, Second District, Division 6, California.

May 25, 1994.

Susanne C. Wylie, La Canada, under appointment by the Court of Appeal, for appellant.

Gertrude D. Chern and Soma F. Baldwin, Santa Maria, amicus curiae, for appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Robert Carl Schneider, Asst. Supervising Deputy Atty. Gen., Alison Braun, Deputy Atty. Gen., for plaintiff and respondent.

YEGAN, Associate Justice.

Klee Green Mathews was convicted in a jury trial of exhibiting a firearm in the presence of a peace officer (Pen.Code, § 417 subd. (c), formerly subd. (b)), a lesser and necessarily included offense of assault upon a peace officer with a firearm.(Pen.Code, § 245 subd. (d)(1)).Probation was granted upon certain terms and conditions.Prior thereto, he unsuccessfully brought a motion to suppress evidence pursuant to Penal Code section 1538.5.

He appeals contending: "I.Appellant's Penal Code section 1538.5 motion was erroneously denied in that the officers failed to comply with the knock-notice requirements of Penal Code section 1531 and therefore were not engaged in the performance of their duties.[p] II.The evidence was insufficient as a matter of law to establish the police were engaged in the performance of their duties: Appellant's motion pursuant to section 1118.1 should have been granted.[p] III.Section 417, subdivision (b) is improperly applied to the instant case in that it creates criminal liability for what appellant'reasonably should know' without the requisite underlying criminal conduct.[p] IV.The jury was inadequately instructed on 'reasonably should have known.' "

We reverse the judgment because the trial court erroneously refused to instruct on the defense theory of the case: i.e., appellant was held to the standard of a reasonable person with a similar physical disability in deciding whether he reasonably should have known that he was in the presence of a peace officer.

Facts

At approximately 6:30 p.m. on December 12, 1990, officers from the Santa Maria Police Department, armed with a warrant for the search and seizure of controlled substances, went to 623 East Donavon Street to execute the warrant.The police had probable cause to believe that Robert Donavon, appellant's son, had been selling marijuana from that location.The police knew that Robert Donavon was confined to a wheel chair and lived in the rear portion of the house.They also knew that appellant was elderly and blind.They were unaware of his hearing impairment.

Officer Danny Macagni went to the rear of the house approximately 150 feet from the front door.He heard Officer Larry Vernon knock on the front door and yell "Santa Maria Police Department.We have a search warrant.Open the door."Macagni noticed that movement in Robert Donavon's back bedroom stopped when the first announcement was made.Five seconds later, he heard Officer Vernon repeat the announcement.Approximately 15 seconds thereafter, the officers forced entry with a battering ram.Officer Paul Bonaventure believed that entry had been refused and that evidence was being destroyed.A total of 20 seconds had elapsed from the first knock.During this interval, no occupant came to the door.The only response to the knock and notice was a man who said: "Hey," after the battering ram was used.

Officer Vernon entered with his revolver drawn and went to the rear of the house, passing appellant's bedroom.Meanwhile, appellant secured his shotgun and stood in the bedroom doorway intending to frighten the intruders.Appellant thought that if he exhibited the shotgun, the intruders would "back off."The officers who entered after Vernon, yelled "police" and were confronted by appellant brandishing a shotgun.

Officer Andrew Standley was one of the officers who entered after Vernon.As he entered, he announced, "sheriff's department, search warrant."At that point in time, he heard the "racking of a shotgun" and saw appellant come out of the bedroom with the shotgun.Appellant pointed the shotgun at Standley and actually poked him with the barrel.Standley tried to move the barrel and fired his pistol five times.Appellant was wounded in the shooting.At one point, sparks and debris hit Standley in the face causing him to believe that appellant had fired the shotgun.It was later determined that appellant had not discharged the shotgun.

Appellant testified that he did not know that his son was selling controlled substances.He claimed that he did not hear the verbal announcements and that he had no idea that the intruders were police officers.In addition to being blind, he was also hearing impaired.¹

The officers seized the loaded shotgun and, contrary to appellant's testimony, found that the safety was in the "off" position.They also seized several baggies of marijuana from Robert Donavon's bedroom as well as scales, a pager, a police scanner, and $860 in cash.As a result of this seizure, Robert Donavan was convicted by plea of violating Health and Safety Code section 11359, possession of marijuana for sale.

Ruling on Suppression Motion

In denying the suppression motion, the trial court said that the house was "... not a large house.From one end to the other, it appears to be 50 to 55 feet....[p] It's a single-family dwelling.It's a small dwelling.And that's borne out not just by the measurements, but by the fact that the people at the back of the house could hear what was being said by the people in the front of the house.[p] Then the door knock was heard all the way through the house.[p] ) Then the boy in the bedroom heard the door--front door knock.We're talking about a small space.[p] ... You know, the whole house isn't too much bigger than the inside of this courtroom.[p] ... The father said to the son, 'there's someone at the door,' expecting him to get it.[p] ... [p][A]t the best, 20 seconds by one of the witnesses, but the thing that struck me is, again, that the length of time seemed to be adequate.[p] ) ... He had time to say to his son, 'hey someone's at the door.'[p]He had time to tell the person he was talking to on the phone, 'just a minute.I'm going to go to the door.'[p]He had time to go to the door....[p]He had time to get to the door.It was his choice when he got to the door to then go and arm himself, so it's clear to me that in the--based on the size of the house, and all of the facts, that the officers did give enough time for someone to answer the door.[p] ) Now, they had information that the person who resided in the house was blind.And they gave extra time for it.[p] ) And it appears to the court that it was a reasonable amount of time...."

"Knock-Notice" and Suppression

Penal Code section 1531 provides: "The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his authority and purpose he is refused admittance."We need not resolve appellant's contention that the officers violated this section.Why not?Because, as we shall explain, whether or not they complied with Penal Code section 1531, evidence relating to the charged offense would not be suppressed.

The premise to appellant's contention is that a determination of unlawful entry would result in suppression of all evidence seen or heard by the officers inside the residence, i.e., all evidence relating to appellant's use of his shotgun, in other words, the charged offense itself.The premise is false.At oral argument, counsel for appellant and amicus counsel went so far as to claim that if there was a violation of Penal Code section 1531, and had appellant shot and killed all of the police officers save one, that he, the lone surviving police officer, would not be permitted to testify that he witnessed the multiple killings.

Crediting appellant's theory would stretch the exclusionary rule beyond the bounds of common sense and public policy.The result would be immunity for a new crime, if there is an antecedent "knock-notice" violation.

The Ninth Circuit has expressly rejected this immunity theory.In United States v. Mitchell(9th Cir.1987)812 F.2d 1250, the defendant was charged with threatening to kill the President of the United States.His theory was that he had been illegally detained and that his detention "... ripened into a de facto arrest without probable cause in violation of the fourth amendment, rendering his statements regarding the President suppressible as the fruit of an illegal arrest."(Id. at p. 1253.)

The Ninth Circuit rejected appellant's theory: "A person who is detained illegally is not immunized from prosecution for crimes committed during his detention.A person does not have a license to kill a police officer merely because the officer arrested him without probable cause....[p] ... Although his argument is cast in evidentiary terms, what Mitchell seeks in reality is immunity from prosecution...."(Id. at p. 1253.)

We agree with the Ninth Circuit.A defendant may not utilize the exclusionary rule to obtain a license to kill a police officer merely because the officer may have entered his residence in violation of Penal Code section 1531." ' "The simple fact is that a homeowner has no right to prevent officers armed with a warrant or proper grounds to make a warrantless entry from entering his home.At the most, the 'refusal of admittance' requirement gives him a few moments to decide whether or not he will open the door himself." '[Citations.]"(People v. Trujillo(1990)217 Cal.App.3d 1219, 1227, 266 Cal.Rptr. 473.)

Since the resident has no right to prevent entry for the service of a search warrant, his forcible resistance thereto should not...