People v. Rubio, A152455

• Citation: 43 Cal.App.5th 342,256 Cal.Rptr.3d 612
• Decision Date: 12 December 2019
• Docket Number: A152455
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Adan RUBIO, Defendant and Appellant.

43 Cal.App.5th 342

256 Cal.Rptr.3d 612

The PEOPLE, Plaintiff and Respondent,

v.Adan RUBIO, Defendant and Appellant.

A152455

Court of Appeal, First District, Division 4, California.

Filed December 12, 2019

Gordon S. Brownell, St. Helena, under appointment by the Court of Appeal, for defendant and appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Bruce M. Slavin, Deputy Attorney General, for plaintiff and respondent.

TUCHER, J.

If a man lives in a high crime neighborhood and somebody discharges a firearm outside his home, may the police break down his door and enter his apartment when he refuses to invite them in to investigate? The Fourth Amendment answers a resounding "no"—at least not without circumstances, not present here, that would cause a reasonable person to believe that someone in the apartment stood in need of emergency aid, or that some other exception to the warrant requirement applied. The need to render emergency aid justifies warrantless entry only where officers have " ‘ "specific and articulable facts" ’ " showing that an intrusion into the home was necessary. ( People v. Ovieda (2019) 7 Cal.5th 1034, 1043, 250 Cal.Rptr.3d 754, 446 P.3d 262 ( Ovieda ).) It is not enough that officers seek to rule out "the possibility that someone ... might require aid." ( Id . at p. 1047, 250 Cal.Rptr.3d 754, 446 P.3d 262.)

These principles render the warrantless search of defendant Adan Rubio’s garage apartment unconstitutional. Defendant here appeals his conviction by plea to possession of a controlled substance while armed with a firearm ( Health & Saf. Code, § 11370.1 ), a plea entered after the trial court denied his motion to suppress the evidence found in his apartment ( Pen. Code, § 1538.5 ).¹ Because we conclude the evidence was gathered in violation of defendant’s Fourth Amendment rights, we reverse his conviction and remand to allow defendant to withdraw his plea.

FACTUAL AND PROCEDURAL BACKGROUND

On October 19, 2016, at approximately 10:40 p.m., East Palo Alto Police Department Sergeant Clint Simmont received an alert on his "ShotSpotter" application that shots had been fired near 2400 Gonzaga Street. The ShotSpotter system detects and triangulates the location of gunfire via microphones deployed throughout the city. Here ShotSpotter notified Sergeant Simmont of two separate bursts of gunfire. First came five rounds from the edge of the garage driveway area of 2400 Gonzaga, then a minute later six rounds at "the edge of the driveway, near the sidewalk." Sergeant Simmont testified that 2400 Gonzaga is located in a high-crime neighborhood, and that he had responded to more murders within a block of that location than anywhere else in East Palo Alto.

Sergeant Simmont and a team of four other officers arrived near 2400 Gonzaga Street and parked 60 to 70 feet from the edge of the driveway. Two officers spoke with witnesses who had heard gunfire. Pointing towards a boat in the driveway of 2400 Gonzaga, they reported they had seen flashes coming from the other side of the boat. As the officers approached the house with their guns out, they found a spent shell casing on the ground at the top of the driveway, near the garage. Sergeant Simmont believed the casing was a .45 caliber round and might have come from a semiautomatic weapon.

Approximately one minute after the officers found the spent shell casing, a man identified as Joshua Bazan walked through the wooden gate of a fence that separated the front and back yards of the house. Sergeant Simmont recognized Bazan from prior contacts and testified that Bazan frequently drank and yelled at police. Sergeant Simmont also knew that Bazan did not reside at 2400 Gonzaga. As he came through the gate, Bazan began yelling obscenities at the officers and assumed a combative position. The officers arrested Bazan and placed him in a patrol car.

After Bazan’s arrest, officers located two additional spent casings behind the open gate that Bazan had passed through. Sergeant Simmont concluded gunfire had come from near the gate, although he could not testify from which side. Sergeant Simmont testified that he was "investigating whether or not we had a victim or a shooter [who] was hiding out."

Sergeant Simmont pounded loudly on a door attached to the side of the garage and announced police presence four or five times. No one responded, but Sergeant Simmont heard what sounded like someone inside the garage pushing items against the door, and he noticed that the door appeared to be flexing. Sergeant Simmont believed someone was attempting to barricade the door. As Sergeant Simmont was knocking on the door, a man came to a window next to the garage and, when Sergeant Simmont ordered him to open the door, indicated that the door led not to the garage, but instead to a separate room.

Sergeant Simmont and his colleagues spoke with several people at the front door to the residence. When asked whether anyone in the house had been shot, defendant’s father, Francisco Rubio Sr., responded "I don’t think so." He had been asleep until awoken by the sound of gunfire and, getting out of bed to investigate, had seen nobody. Sergeant Simmont testified that he asked Francisco Sr. for permission to search the house, which Francisco Sr. granted, but Francisco Sr. testified that the officers never asked him for permission to enter the house.

Once inside the house, officers asked Francisco Sr. who was inside the garage, and he responded that his son was. Sergeant Simmont then asked for permission to search the garage, and Francisco Sr. responded, "Sure." Attempting to open the door from the house to the garage, Francisco Sr. found that it was locked, but told the officers he would get the key.

As Francisco Sr. was getting the key, defendant emerged from the garage, opening the door "just enough to slide his body out." Defendant closed the door, which automatically locked behind him, and approached the officers with his hands in his pockets, yelling for them to shoot him. Sergeant Simmont repeatedly ordered defendant to show his hands. Defendant eventually took his hands out of his pockets and, as he did so, threw a key ring into the kitchen sink. Officers detained defendant and placed him in a patrol car.

The officers retrieved the key defendant had thrown into the sink and attempted to use it to open the door to the garage. When defendant’s key did not work, Sergeant Simmont and another officer kicked the door open and entered the garage. Sergeant Simmont testified that he was uncertain what was on the other side of the door and that he had no reason to believe anyone had been shot, but he "didn’t have anything to rule that out, either."

Upon entering the garage, Sergeant Simmont observed that the garage was a converted apartment. The officers did not find anyone inside the apartment, but did observe "an explosive device on a shelf." The officers also found and collected an operable .45 semiautomatic Smith & Wesson pistol on the shelf in an open closet. Sergeant Simmont noticed that the door he had knocked on earlier from the outside was barricaded by furniture.

The officers cleared the house of all occupants to secure the scene. At around 5:18 a.m., a search warrant was obtained. The officers reentered the residence and executed the warrant. The officers found an operable .357 Smith & Wesson handgun, twenty .40-caliber bullets, 87 live .357-caliber bullets, a body armor vest, six spent .357 Smith & Wesson shell casings, and a plastic twist-off bindle in a shot glass with a clear, rock-like substance, later identified as methamphetamine. Sergeant Simmont located surveillance equipment with a view of the driveway and a video that showed three people walking down the driveway. Defendant is seen pulling out a revolver and firing six shots into the air. Defendant and two other individuals, Bazan and possibly defendant’s brother, are then seen running back through the gate next to the house.

Following the filing of a five-count felony complaint, defendant filed a motion to suppress evidence. At a hearing on the motion to suppress, the prosecution argued that the warrantless entry into defendant’s garage was justified under multiple theories: community caretaking, emergency aid, exigent circumstances, and consent. The magistrate noted that it was "a very close case" but, citing People v. Ray (1999) 21 Cal.4th 464, 88 Cal.Rptr.2d 1, 981 P.2d 928 ( Ray ), disapproved in part in Ovieda , supra , 7 Cal.5th at p. 1038, 250 Cal.Rptr.3d 754, 446 P.3d 262, denied the motion on the theory that the search satisfied the community caretaking exception.

The San Mateo County District Attorney then filed a six-count felony information, charging defendant with discharge of a firearm with gross negligence (§ 246.3, subd. (a) (count one)), possession of a controlled substance while armed with a firearm ( Health & Saf. Code, § 11370.1, subd. (a) (count two)), unlawful possession of a firearm by a felon (§ 29800, subd. (a)(1) (counts three and four)), unlawful possession of ammunition (§ 30305, subd. (a)(1) (count five)), and possession of an explosive ( Health & Saf. Code, § 12305 (count six)), with a special allegation that defendant is ineligible for probation because of two prior offenses (§ 1203, subd. (e)(4)).

Defendant filed a motion to set aside the information pursuant to section 995, alleging that the evidence presented at the preliminary hearing should have been suppressed pursuant to section 1538.5. Defendant also renewed the original motion to suppress evidence. Citing the emergency aid doctrine of the community caretaking exception, the trial court denied defendant’s motion to set aside the information and denied the motion to suppress.

Following this second denial of his motion to suppress, defendant entered a plea of no contest to violating Health and...