People v. Ovieda

• Decision Date: 17 January 2018
• Docket Number: 2d Crim. No. B277860
• Citation: 228 Cal.Rptr.3d 67,19 Cal.App.5th 614
• Parties: The PEOPLE, Plaintiff and Respondent, v. Willie OVIEDA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

19 Cal.App.5th 614

228 Cal.Rptr.3d 67

The PEOPLE, Plaintiff and Respondent,

v.Willie OVIEDA, Defendant and Appellant.

2d Crim. No. B277860

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

Filed January 17, 2018

Law Offices of Elizabeth K. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Andrew S. Pruitt, Deputy Attorney General, for Plaintiff and Respondent.

YEGAN, J.

Over 50 years ago, wise and prescient Chief Justice Phil Gibson planted the judicial seed for what we now call the "community caretaking" exception to the Fourth Amendment. We apply it here. ( People v. Roberts (1956) 47 Cal.2d 374, 379-380, 303 P.2d 721 ( Roberts ); see also People v. Ray (1999) 21 Cal.4th 464, 471, 88 Cal.Rptr.2d 1, 981 P.2d 928 ( Ray ).)

Willie Ovieda appeals his conviction by plea to manufacturing concentrated cannabis ( Health & Saf. Code, § 11379.6, subd. (a) ) and possession of an assault weapon ( Pen. Code, § 30605, subd. (a) ), entered after the trial court denied his motion to suppress evidence ( Pen. Code, § 1538.5 ). Pursuant to a negotiated plea, probation was granted with 180 days county jail and outpatient mental health treatment.

Appellant contends his Fourth Amendment rights were violated when officers, in responding to a 911 call that he was about to shoot himself, made a "cursory search" of appellant's residence to make sure no one was hurt and no firearms were lying about.¹ The trial court factually found that the search was a reasonable exercise of the officers' community caretaking duty. We affirm because there is no reason to apply to the exclusionary rule. As we shall explain, the instant entry and "cursory search" had nothing to do with the gathering of evidence to support a criminal prosecution. This is, of course, the lynchpin for application of the exclusionary rule. When a person unsuccessfully attempts suicide in his residence with a firearm, and thereafter comes outside, the police may enter the residence to perform a "cursory search" pursuant to their "community caretaking" duty.

Facts and Procedural History

On the evening of June 17, 2015, appellant's sister told a 911 operator that appellant was threatening to kill himself and had attempted suicide before. Santa Barbara Police Officer Mark Corbett responded to the 911 call. A second officer telephoned Trevor Case inside the house. Case was appellant's friend. Case went outside and reported that appellant had threatened to commit suicide and tried to grab several firearms in his bedroom. Case and his wife had to physically restrain appellant to keep him from using a handgun and a rifle to kill himself. Case's wife pinned appellant down as Case searched the bedroom for other firearms. Case moved a handgun, two rifles, and ammunition to the garage but did not know whether appellant had additional firearms or weapons in the house.

Appellant agreed to come outside, was detained, and falsely denied having made suicidal comments or that he had any firearms. Appellant said he was depressed because a friend committed suicide the week before. Officer Corbett described the situation as "emotional and dynamic." He believed a cursory search was necessary because it was unknown how many more weapons were in the house, whether the weapons were secure, and whether anyone inside the house needed help. It was a concern because the person who made the 911 call, appellant's sister, was not at the scene and the officers did not know anything for sure. Officer Corbett believed he was "duty bound" to make a safety sweep to make sure no one inside was injured or needed medical attention. A second officer, Officer Daniel Garcia, agreed a safety sweep was necessary to confirm that; 1. there were no other people in the house; 2. nobody else was hurt; and 3. there were no dangerous weapons or firearms left out in the open.

Officer Corbett and a second officer made a cursory sweep of the house and saw, in plain view, a rifle case, ammunition, magazines, and equipment to cultivate and produce concentrated cannabis.

There was a large, industrial drying oven with tubes, wires, and ventilation ducts that led to the garage, as well as marijuana and concentrated cannabis in plain view. Based on 15 years in narcotics-related investigations, Officer Corbett believed the marijuana lab posed an immediate danger because manufacturing concentrated cannabis is "a volatile process that involves heat and when mistakes are made explosions and fires can occur."

Inside the garage, officers saw three rifles and a revolver in a tub. Two rifles were automatic or semi-automatic assault rifles that Officer Corbett believed were illegal. The officers also found four high capacity magazines for an assault style weapon, a firearm silencer, a long range rifle with a scope, more than 100 rounds of ammunition, equipment for a hash oil laboratory, butane canisters, miscellaneous lighters and burners, a marijuana grow, and a bucket filled with marijuana shake. The firearms included a .50 caliber rifle, an Uzi sub-machine gun, a .357 caliber revolver, a pistol-grip 12 gauge shotgun, and a .223 caliber sub-machine gun.

Appellant brought a motion to suppress evidence. The prosecution argued that the entry into appellant's residence was justified under the community caretaking exception and the protective sweep doctrine.² The trial court ruled that the community caretaking exception is "what guides the Court's decision" and denied the motion to suppress evidence. The trial court found the officers' testimony credible as to "what they were concerned about and what they didn't know. And so I [find] it credible that they wanted to remove firearms, they didn't know if there were others in the residence, either victims or other people who might cause a harm." It expressly found that the officers were "not required to accept Mr. Case's word that he removed the firearm that Mr. Ovieda had reached for. ... And I believe under these circumstances that the officers would be subject to criticism, in fact, if anything had occurred that they would be judged neglectful in not entering the residence and doing what was described as quick search, ... looking in closets, looking for other people, and looking for other weapons."

Community Caretaking Exception

Appellant argues that the entry into his residence violated the Fourth Amendment. On review, we defer to the trial court's express and implied factual findings which are supported by substantial evidence and determine whether, on the facts so found, the search was reasonable under the Fourth Amendment. (E.g., People v. Glaser (1995) 11 Cal.4th 354, 362, 45 Cal.Rptr.2d 425, 902 P.2d 729.) The trial court's express factual findings are fatal to this appeal.

In Ray , supra , 21 Cal.4th 464, 88 Cal.Rptr.2d 1, 981 P.2d 928, our Supreme Court stated that the community caretaking exception to the Fourth Amendment permits police to make a warrantless search of a home if the search is unrelated to the criminal investigation duties of the police. ( Id. at p. 471, 88 Cal.Rptr.2d 1, 981 P.2d 928.) "Upon entering a dwelling, officers view the occupant as a potential victim, not as a potential suspect." ( Ibid . ) "Under the community caretaking exception, circumstances short of a perceived emergency may justify a warrantless entry" to preserve life or protect property. ( Id. at p. 473, 88 Cal.Rptr.2d 1, 981 P.2d 928.) Officers are expected to " ‘ "aid individuals who are in danger of physical harm," "assist those who cannot care for themselves," "resolve conflict," ... and "provide other services on an emergency basis." ...’ [Citation.]" ( Id. at p. 471, 88 Cal.Rptr.2d 1, 981 P.2d 928.)

Such is the case here. Officer Corbett responded to the 911 call to help a suicidal person. The cursory search had nothing to do with a criminal investigation and no one claims the 911 call was a ruse or subterfuge to gain entry and search for evidence of a crime. " ‘[C]ommunity caretaking’ ..., [is] ‘totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’ [Citation.]" ( Colorado v. Bertine (1987) 479 U.S. 367, 381, 107 S.Ct. 738, 93 L.Ed.2d 739.)

Appellant argues that Ray has no binding precedential value because it is only a plurality opinion. (See, e.g., People v. Karis (1988) 46 Cal.3d 612, 632, 250 Cal.Rptr. 659, 758 P.2d 1189.) He contends the officers were required to leave when appellant denied that he was suicidal. The argument is premised upon the theory that a suicidal person has the Second Amendment right to possess and bear firearms and that officers responding to a 911 call that someone is threatening suicide must leave when the person comes outside and says there is no problem. We assess the reasonableness of the officer's actions at the time they undertook them.

Officer Corbett responded to a 911 call from a concerned family member that appellant was about to take his life and had attempted suicide before. Appellant's friend, Trevor Case, confirmed that appellant tried to reach for a firearm and shoot himself. Case feared that appellant would try to hurt himself and that there were other weapons or firearms in the house. There was an on-going safety concern because appellant lied about the firearms and his suicidal ideation. Appellant was detained and handcuffed. By his actions, appellant put himself at risk, his friends at risk, and the responding officers at risk. ( Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 271, 80 Cal.Rptr.2d 196 [Police officers providing assistance at the scene of a threatened suicide must concern themselves with more than simply the safety of the suicidal person. Protection of the physical safety of the police officers and other third parties is paramount]; see also ...