Filed 11/27/13 P. v. Marks CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C071232

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F01025)

         v.

DENA MARKS,

                   Defendant and Appellant.




         After the trial court denied her motion to suppress evidence (Pen. Code,1
§ 1538.5), a jury found defendant Dena Marks guilty of attempted voluntary
manslaughter, aggravated mayhem, and assault with a deadly weapon. The jury also
found true allegations that defendant personally used a knife and personally inflicted




1 Further undesignated statutory references are to the Penal Code.


                                                             1
great bodily injury. The trial court found defendant had one strike and sentenced her to
prison.
          Defendant appeals, contending the trial court erred in denying her motion to
suppress evidence found in a warrantless search of her apartment. We agree that the trial
court erred and the People have not shown the error was harmless beyond a reasonable
doubt. Accordingly, we reverse.
                                      BACKGROUND
                                   The Suppression Hearing
          Evidence Presented
          Sacramento Sheriff’s deputies dispatched to investigate a stabbing at an apartment
complex met the victim, Blancy Adams, at the nearby 7-Eleven. Adams was bleeding
from a fresh cut along his jaw. Witnesses (including Adams) reported that defendant had
stabbed Adams, identifying her by name and describing her as a White female, “about
five-six, around 230, 240 pounds” with a prosthetic leg. Defendant lived in apartment 35
and the stabbing had occurred in apartment 49 of the same complex. At the time of the
stabbing, defendant had been wearing white pajama pants with Mickey Mouse graphics,
and a red T-shirt.
          Deputies Crowley and Croteau went to apartment 35. Defendant’s teenage
daughter opened the door and allowed them inside to talk to defendant. Defendant was
lying on an air mattress in the living room, just inside the front door. She had only one
leg, was not wearing a prosthetic, and was wearing yellow pajamas. Croteau told
defendant they were investigating her involvement in a stabbing that occurred in
apartment 49. Defendant said she had not been “over there.” Deputy Silvey soon arrived
at the scene; he too questioned defendant. Silvey was also walking around the apartment.
          At the hearing, Silvey candidly offered repeatedly that he could not remember the
apartment’s layout, testifying that since the time of the crime, “a year and a half ago,”



                                               2
he had been to “probably 2,000 apartments.” At one point on the evening of the stabbing,
he stood in the part of the living room he was “guessing” was about 25 feet from
defendant, near a short (“probably five, six feet”) hallway leading to the bath and
bedroom. As he looked into the hallway from the living room, he saw that the closet
door at the end of the hallway was open.2 On the floor of the closet, just inside the door,
was a white plastic bag. Silvey testified the bag drew his attention because defendant
was not wearing the clothing described by witnesses, so “I was looking around the
apartment to see if I -- if it was laying out in the apartment.” As he “walked up to the
bag,” Silvey “looked in the bag and there’s Mickey Mouse looking back at me.”
       Silvey pulled the Mickey Mouse pants from the bag, and showed them to
defendant. She denied having worn them. No blood was found on the pants. At some
point--the record is unclear as to precisely when in the sequence of events this particular
sighting occurred--Silvey saw defendant’s prosthetic leg leaning against the wall of the
closet “near the bag of clothing.” Defendant told Silvey she had not been wearing the leg
for at least “the last couple of hours.” Silvey found in the closet, near the prosthetic leg,
a suction liner which is generally worn between inside the prosthetic. The liner was
warm to the touch, from which Silvey concluded the leg had been worn recently.
       Ruling
       It was undisputed that no warrant was obtained, and the trial court found no
consent to search the apartment. However, the court found Silvey was conducting a
protective sweep of the apartment,3 during which he saw the prosthetic in the open closet


2 Silvey sketched the apartment’s layout at the hearing, as well as identified photographs
of the relevant living room, closet, and clothing; these exhibits are in the appellate record
and we have reviewed them.
3 Although not specifically using the term “protective sweep” in its ruling, the trial court
described Silvey’s conduct as walking “around the area where [the deputies] are in just to
make sure that there’s nobody else there or that there’s no other circumstance that would

                                              3
and then noticed the pants in the bag on the closet floor; accordingly, the court denied the
motion to suppress.4
                                         The Trial
       Defendant was charged with attempted murder (count one), aggravated mayhem
(count two), and assault with a deadly weapon (count three). It was also alleged she had
suffered one prior strike conviction.
       People’s Case
       Defendant knew Adams before the stabbing; he was visiting Sacramento and
staying at (defendant’s sister) Diane’s apartment, number 49. Diane, Adams, his brother,
and others were with defendant and her daughter in apartment 49 at the time of the
stabbing. Defendant was wearing her prosthetic leg.
       After defendant and Adams exchanged words which included a reference by
Adams to the “Gangsta bitch” tattoo on defendant’s neck, defendant told Adams: “You
want to see Gangsta bitch, I’ll show you Gangsta bitch,” and walked out of the apartment.
She soon returned, said she was going to kill Adams, and slashed at his neck and cheek
with a knife. Adams fled to the 7-Eleven across the street. He had received a deep stab
wound that sliced his jugular vein and was life threatening. The cut to his face left a scar.
       After her preliminary hearing, defendant told her husband she intended to “run”;
the recorded phone conversation was played for the jury.
       On rebuttal, Silvey testified he found six drops of blood in apartment 49 and saw
no blood in apartment 35.




pose a danger to them” and also as “walking around that front living area just to make
sure there wasn’t anything else he [should be] aware of or be concerned about . . . . .”
4  The trial court added that, even if there were “arguably a [Fourth Amendment]
violation in this case,” Silvey’s conduct was not “so outrageous as to justify suppressing
[the evidence].”

                                              4
       Defendant’s Case
       Defendant testified she was never actually inside apartment 49 the night of the
stabbing, although she had an argument with Adams while outside the apartment. She
went home to apartment 35 after the argument. Adams then came to apartment 35 and
argued with her again and insulted her, cursed her, and climbed on top of her after she
refused to give him Oxycontin; he then pulled oxygen tubes out of her nose, and she felt
she couldn’t breathe and he might rape her. She then “cut him” with the scissors.
Although it was only “5 to 15” minutes later that the deputies arrived at her apartment,
she did not call 911 and did not report the incident because she was “confused” and she
had previously been told not to talk to the police without a lawyer present. Defendant
denied that she wore her prosthetic leg at all on the day of the stabbing. She had,
however, often worn the prosthetic’s lining alone for medical reasons.
       Defendant admitted telling her husband she planned to run rather than face trial
because of her poor health. She also admitted a 2004 conviction for residential burglary.
       Defendant’s sister Diane testified that she was sleeping in her bedroom when
Adams was cut somewhere outside her apartment, and she was awoken by Adams’s
screaming.
       Verdicts and Sentencing
       The jury acquitted defendant of the charge of attempted murder. It convicted her
instead of the lesser offense of attempted voluntary manslaughter, as to which it also
found she personally used a knife, and personally inflicted great bodily injury. The jury
also convicted defendant of aggravated mayhem (as to which it found she personally used
a knife), and assault with a deadly weapon (as to which it found she personally inflicted
great bodily injury). The trial court found defendant had suffered one prior strike
conviction, and denied her motion to strike it.
       The court sentenced defendant to a determinate term of six years, plus an
indeterminate term of 14 years to life.

                                             5
                                       DISCUSSION
       Defendant contends the trial court erred in denying her motion to suppress. As we
will explain, we agree with defendant that the trial court’s relevant findings of fact are not
supported by substantial evidence. Further, the good faith exception to the warrant
requirement does not apply. Because the People cannot show the error was harmless
beyond a reasonable doubt, we must reverse the judgment.
                                              I
                                          The Law
       The Fourth Amendment guarantees the right to be free of unreasonable searches
and seizures by law enforcement personnel. (U.S. Const., 4th Amend.) “‘It is a “basic
principle of Fourth Amendment law” that searches and seizures inside a home without a
warrant are presumptively unreasonable.’ [Citation.]” (People v. Thompson (2006)
38 Cal.4th 811, 817, quoting Payton v. New York (1980) 445 U.S. 573, 586, 585 [63
L.Ed.2d 639].) When police conduct a search or seizure without a warrant, the
prosecution has the burden of showing the officers’ actions were justified by an exception
to the warrant requirement. (People v. Camacho (2000) 23 Cal.4th 824, 830; People v.
Chavez (2008) 161 Cal.App.4th 1493, 1499.)
       The “protective sweep” doctrine is a recognized exception to the warrant
requirement for searches and seizures. (See Maryland v. Buie (1990) 494 U.S. 325, 327
[108 L.Ed.2d 276, 281] (Buie).) Officers may conduct a limited, brief search of premises
to ensure officer safety, if they have a reasonable suspicion that the area to be swept
harbors an individual who poses a danger to those on the scene. (Ibid., see also People v.
Ormonde (2006) 143 Cal.App.4th 282, 292.) Officers conducting a protective sweep
who see an item in plain view, which they have probable cause to believe is evidence of a
crime or contraband, may lawfully seize it without a warrant. (Buie, supra, 494 U.S. at




                                              6
p. 330 [108 L.Ed.2d at p. 283]; Arizona v. Hicks (1987) 480 U.S. 321, 325-327 [94
L.Ed.2d 347, 354-355]; People v. Clark (1989) 212 Cal.App.3d 1233, 1238-1239.)
       When reviewing the denial of a suppression motion, we view the record in the
light most favorable to the trial court’s ruling, and defer to the trial court’s express or
implied factual findings if supported by substantial evidence; we exercise our
independent judgment to determine whether, on the facts found, the search or seizure was
reasonable under the Fourth Amendment. (People v. Lenart (2004) 32 Cal.4th 1107,
1118-1119; see People v. Weaver (2001) 26 Cal.4th 876, 924.)
                                               II
                                           Analysis
       A. Protective Sweep
       As we described ante, the trial court impliedly found that the seizure of the pants
and prosthetic was lawful because Silvey was engaged in a protective sweep of the
apartment when he located the items at issue. However, no evidence supports this
conclusion. Our careful review of the record reveals no evidence that Silvey was looking
for dangerous people inside the apartment. Rather, he was talking with defendant and
looking for evidence of the crime. Silvey candidly testified that he was “walking about
the apartment” and “looking around the apartment to see if” the clothing associated with
the crime “was laying out in the apartment.” Silvey testified he never even went into a
bedroom--further evidence that he was not conducting a protective sweep.
       Justifying a protective sweep requires that the People present “articulable facts
which, taken together with the rational inferences from those facts, would warrant a
reasonably prudent officer in believing that the area to be swept harbors an individual
posing a danger to those on the arrest scene.” (Buie, supra, 494 U.S. at p. 334.) The
People admitted the absence of such facts; indeed, when referencing the protective sweep
doctrine (after it was raised by the judge) in his argument at the hearing, the prosecutor
said: “we did not hear evidence of this and I’m not suggesting that we did.” Substantial

                                               7
evidence does not support the trial court’s conclusion that Silvey observed the evidence
while engaged in a protective sweep.
       B. Plain View
       The People posit that Silvey could see both defendant’s prosthetic and the pants
from his position in the living room, an area where he was permitted to be. Even
assuming for the sake of argument that Silvey was legally entitled to roam through the
living room and look down the hall, he did not testify that he could see either the
prosthetic or the pants from the living room. Instead, he testified that he saw a white
plastic bag on the closet floor and it drew his attention because he was looking for the
clothes described by witnesses. Only when Silvey “walked up to the bag” could he see
the pants inside it.5 He first testified to the presence of the prosthetic in the closet when
asked if there was “anything else that drew [his] attention” while he was in the apartment;
he answered that defendant’s “prosthetic leg was leaning against the wall near the bag of
clothing.” He never testified that the prosthetic leg (let alone its liner) could be seen from
the living room, nor was he even asked.
       Alternatively, the People argue the exhibits (if not the testimony) introduced at the
suppression hearing provide support for the notion that the prosthetic was in plain view
from the living room. The People are mistaken; neither the exhibits nor Silvey’s
testimony support their argument. Instead of relying on the evidence, the People attack
defendant’s argument by stating that “it appears appellant has not reviewed the exhibits”
and speculating as to how Silvey “could have” looked one way or the other to see into the
closet and how it is “reasonable to believe that Silvey could have seen” the items in plain




5 The trial court and prosecutor together theorized that Silvey first noticed the prosthetic
through the open closet door, walked over to investigate, saw a bag of clothes, and looked
into the bag to discover the pants. But the record does not support this theory, as we
describe throughout.

                                              8
view. But this approach--speculating as to what Silvey could have done--ignores the fact
that Silvey testified as to what he did, to the best of his admittedly and understandably
remote recollection. He did not testify that he did what the People now hypothesize he
“could have” done.
       Further, we have reviewed the exhibits and disagree that they support the People’s
musings. None even remotely show Silvey’s view from the living room into the open
closet, much less his view into the white bag.6 The People failed to lay a foundation at
the hearing as to where the photographer was when these photographs were taken and
whether Silvey was in the same location at any point during his search. Nor did Silvey
testify about the location from where the photos were taken. Without that foundation, it
is impossible to conclude the photographs prove Silvey could see any of the relevant
items from the living room. Because Silvey did not testify that he saw the seized items
from the living room, and no other evidence indicates that he did, the trial court’s
findings on this point are not supported by substantial evidence.
       C. Good Faith Exception
       Finally, the People argue the trial court properly denied defendant’s suppression
motion because Silvey’s conduct was “simple negligence,” citing Herring v. United
States (2009) 555 U.S. 135 [172 L.Ed.2d 496] (Herring). Herring involved an officer
who reasonably, but mistakenly, believed there was an outstanding warrant for the




6  People’s Exhibit 10 shows the clothing at issue spread on the living room floor, clearly
after its seizure; the People introduced it at trial only to identify defendant’s pants.
Exhibit 11 shows the living room with the corner of defendant’s airbed in the foreground
and the entrance to the hallway in the background and was introduced for a purpose that
is not clear from the record. Exhibit 12 is a close-up of the linen cabinet next to the
closet; it is referenced only as a broad cite in the People’s briefing and was barely
identified at trial by Silvey. Exhibit 13 is a close-up of the closet’s open door. The
prosthetic leg is in the closet but the white bag of clothing (that first drew Silvey’s
attention per his testimony) is not.

                                             9
defendant. The officer’s belief was reasonable because the clerk had actually provided
him with incorrect information--that defendant’s arrest warrant was active when in fact it
had been recalled. (Herring, supra, 555 U.S. at pp. 137-138 [172 L.Ed.2d at pp. 501-
502].)
         Herring is not on point to this case. In Herring, the officer made a reasonable
mistake of fact--thinking a recalled warrant was active--because of others’ negligent
failure to update the relevant database. His error was “the result of isolated negligence
attenuated from the arrest.” (Herring, supra, 555 U.S. at p. 137 [172 L.Ed.2d at p. 502].)
Here, the deputy was (at best) mistaken about the law--what it allowed him to do and
what it did not. His mistake was in no way attenuated from his discovery of the evidence
at issue. To the contrary, his mistake was inextricably intertwined with the constitutional
violation. Here, unlike the officer in Herring, Silvey knew that he was searching
defendant’s apartment without a warrant, without consent, and without exigent
circumstances; the record is devoid of any evidence of any belief on his part of the
existence of any factual basis, whether correct or incorrect, that could allow him to
conclude that his warrantless search of the apartment for evidence was legally
permissible. No matter what may have been his state of mind (and the record is devoid of
any evidence of this as well), and to what extent his search of the apartment may have
seemed practical and expedient at the time, the search was without legal basis and thus
showed a “reckless disregard of constitutional requirements,” see Herring, supra, at page
147 [172 L.Ed.2d at p. 509], violated the Fourth Amendment, and warrants suppression
of the evidence resulting therefrom.7



7 Although the People argue that Silvey “had a right to look around the living room” to
ensure the room was free from weapons or “dangerous third persons,” this argument
borders on disingenuous given the specific circumstances of this case and their
concession below that there was no evidence supporting the theory that Silvey was
engaged in a protective sweep. As we have explained at length ante, no evidence

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                                             III
                                      Harmless Error
       We arrive at the question of whether the trial court’s error in denying defendant’s
motion to suppress, thereby permitting the People to introduce at trial evidence of the
prosthetic leg and (warm) liner, as well as the pants, was harmless beyond a reasonable
doubt. (See People v. Tewksbury (1976) 15 Cal.3d 953, 970-972; Chapman v. California
(1967) 386 U.S. 18 [17 L.Ed.2d 705] (Chapman).)
       This court has described the test for the Chapman standard as follows: “To find
the error harmless we must find beyond a reasonable doubt that it did not contribute to
the verdict, that it was unimportant in relation to everything else the jury considered on
the issue in question.” (People v. Song (2004) 124 Cal.App.4th 973, 984 (Song); see
Yates v. Evans (1991) 500 U.S. 391, 403-404 [114 L.Ed.2d 432, 448-449].) Even where
the defense is weak, that does not make the evidence that should have been suppressed
unimportant. (See People v. Scott (1978) 21 Cal.3d 284, 295-296.)
       The presence of the pants and warm prosthetic liner in apartment 35, together with
other evidence of identification, certainly established defendant stabbed Adams. But
because defendant testified and admitted that she stabbed Adams, her identity as the
person who stabbed Adams was never in dispute. The key issue at trial was the context in
which the stabbing occurred--where and why defendant attacked Adams. This
determination of context was critical because defendant’s theory was self-defense, and
her testimony supported that theory. The testimony of the victim and his brother that the
attack was unprovoked and occurred in apartment 49 contradicted the defense theory.
Their testimony was supported in large part by the illegally seized evidence; evidence
that defendant had recently worn the very same, distinctive outfit, including the



supports the notion that Silvey was searching for anything other than specific clothing,
nor did the People present any articulable facts below which would justify such a sweep.

                                             11
prosthetic, that Adams and his brother had described her as wearing at the time of the
attack, supported those witnesses’ version of the evening’s events. Thus, the illegally-
seized evidence supported the testimony (and credibility) of the People’s witnesses and
also severely undermined defendant’s testimony and her credibility.
       The prosecutor’s closing argument emphasized the importance of this evidence:
“She has changed her clothes. She has taken off her prosthetic. The prosthetic is still
warm to the touch. . . . Why are these details important? Consciousness of guilt;
changing her appearance, hiding the evidence, trying to look innocent, trying to look
harmless.” And “Two diametrically opposed stories . . . and only one [is] true and only
one is supported by the evidence. Only one makes any sense.” And again in rebuttal
argument, the prosecutor emphasized the change of clothing, defendant’s reaction to
Silvey’s confronting her with the pants he had found, and the warm leg liner as evidence
that defendant lacked credibility.
       Unlike the People, we do not find the fact that six droplets of blood, never
analyzed, were located in apartment 49 to be key evidence that defendant’s acts of
violence were committed in the manner described by the People’s witnesses. Though
perhaps mildly corroborative of Adams’s version of the attack, the evidence of six
droplets of blood (purportedly from a stab wound to the jugular vein) is far from
overwhelming. In fact, this incongruous blood evidence may well have added to the
confusion as to precisely where the stabbing took place and under what circumstances.
       Although the People argue defendant’s testimony was not credible because of her
failure to report the crime and her professed desire to flee, the credibility of the witnesses
is a jury determination. Here, that determination was made by jurors who had heard
evidence and argument regarding highly persuasive but illegally-seized evidence
substantiating the victim’s claims in a critical area of dispute--the context of the




                                              12
stabbing.8 (See Song, supra, 124 Cal.App.4th at p. 985 [where improperly admitted
statements strongly corroborated the victim’s credibility on a key point, error not
harmless beyond a reasonable doubt].) Despite potential problems with defendant’s
credibility, her version of the events of the evening supported her self-defense claim.
Even after considering the illegally-seized evidence, this jury did not accept the People’s
entire case against defendant; it acquitted her of attempted murder, despite hearing
Adams’s testimony that defendant said “she was going to kill” him.
       “The [Chapman] inquiry, in other words, is not whether, in a trial that occurred
without the error, a guilty verdict would surely have been rendered, but whether the
guilty verdict actually rendered in this trial was surely unattributable to the error.”
(Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [124 L.Ed.2d 182].) Here, the People
have failed to show that the verdicts of guilt were surely unattributable to the admission
of the illegally-seized evidence. For all the reasons we describe ante, we cannot say the
error was harmless beyond a reasonable doubt.




8 The People’s assertions that the jury was “entitled to conclude that [defendant’s]
explanation was not believable” and that “[e]ven if the [evidence] had been suppressed,
the jury could have easily concluded that [Adam’s] and [his brother’s] testimony was
believable” miss the point. Although technically accurate, these assertions, concerning
what the jury was entitled to do or possibly could have done, do not belong in an
argument supporting a finding of harmless error under the Chapman standard, where the
People have the burden of proof. Here, unless we can say beyond a reasonable doubt that
the jury would have necessarily reached the same conclusions, reversal is required.

                                              13
                                     DISPOSITION
     The judgment is reversed.



                                              DUARTE   , J.



We concur:



     MURRAY             , Acting P. J.



     HOCH                , J.




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