Filed 1/12/16 P. v. Chavez CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


PEOPLE OF THE STATE OF                                                   B259357
CALIFORNIA,
                                                                         (Los Angeles County
         Plaintiff and Respondent,                                       Super. Ct. No. SA085769)

         v.

DESIDERIO E. CHAVEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Elden Fox, Judge. Affirmed.
         Maven Law Firm and Yan Goldshteyn for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret Maxwell and Nathan
Guttman, Deputy Attorneys General, for Plaintiff and Respondent.




                                        _________________________
       Defendant and appellant Desiderio E. Chavez contends that his plea of no contest
to a charge of resisting an executive officer1 by threats or violence (Pen. Code, § 69),
following an altercation inside his apartment with several police officers, must be
reversed. Chavez argues the evidence that he resisted the officers was the inadmissible
fruit of unlawful police conduct. For the reasons discussed below, we conclude the
evidence was admissible and, therefore, that the judgment must be affirmed.
                                     BACKGROUND
       1. Testimony at the suppression hearing
       California Penal Code section 1538.5, subdivision (a)(1)(A),2 provides, in
pertinent part: “A defendant may move . . . to suppress as evidence any tangible or
intangible thing obtained as a result of a search or seizure on . . . the following grounds:
[¶] (A) The search or seizure without a warrant was unreasonable.” Defendant Chavez
filed a motion under section 1538.5 seeking to suppress evidence of the arresting officers’
observations of his demeanor, any statements he made, and “any acts of [his] occurring
within his house.”
       The only witness at the hearing on Chavez’s suppression motion was Los Angeles
Police Department Officer Jessyca Avalos. Avalos testified that, at about 6:40 a.m. on
November 16, 2013, she and her partner, Officer Jeffrey Duarte, were notified that a
citizen had called in a disturbing the peace complaint. The report said that the neighbor
had complained about “loud stomping.” When Avalos and Duarte responded to
Apartment #4 at 847 S. Wooster Street, they heard loud talking coming from inside the
apartment, and then loud music began playing.



1
        “ ‘The term “executive officer” has long been held to include police officers.’
(People v. Buice (1964) 230 Cal.App.2d 324, 335; see also People v. Pacheco (1968)
263 Cal.App.2d 555, 557-558.) Almost all reported decisions discussing section 69
involve peace officers . . . .” (People v. Williams (1999) 72 Cal.App.4th 1460, 1463,
fn. 5.)
2
       All further statutory references are to the Penal Code unless otherwise specified.


                                              2
        As Duarte knocked on the apartment door, Avalos stood back a few feet in order
to provide cover. Avalos testified that Duarte knocked three times before Chavez opened
the door part-way and stood at the threshold with his upper body extending into the
doorway.3 Duarte identified himself as a police officer and explained that Chavez’s
neighbors had complained about loud noise. In response, Chavez said “something to the
effect, ‘This is my fucking house. I don’t have to be quiet.’ ” Chavez, who looked like
he weighed about 400 pounds, was sweating profusely and he seemed very agitated.
Avalos radioed for another police unit to stand by because Chavez’s “response didn’t
seem reasonable.”
        Duarte asked Chavez for some identification. Chavez said he did not have any.
When Duarte then took out a field identification card and said, “I’ll need your last name,”
Chavez yelled, “I’m not going to tell you fucking anything.” Chavez then tried to slam
the apartment door shut, but Duarte blocked it with his foot and kept it open. Avalos
testified:
        “Q. When your partner put his foot in the doorway, tell us what happened next.
        “A. Again Mr. Chavez tried to close the door. And my partner went to grab his
arm. At which point he went to grab his arm and Mr. Chavez started fighting. So I
attempted to –
        “Q. What do you mean by he started fighting?
        “A. Well, he . . . clenched his fists and he started walking backwards and taking
my partner with him. And I was trying to grab his other arm . . . so that we can handcuff
him.”
        Avalos further testified:
        “Q. So as he pulled your partner in, so to speak, did you follow?
        “A. Yes, ma’am.
        “Q. And what happened next?


3
      Avalos testified: “[Chavez] opened the door. [¶] Q. All the way or part way?
[¶] A. Part-way. His upper body was out.”


                                             3
       “A. He and my partner fell on top of the defendant’s bed.
       “Q. Now, how far inside the residence was the defendant’s bed?
       “A. It was a studio style apartment so it was very close to the door.
       “Q. And what happened next after they fell upon the bed?
       “A. My partner was trying to do like a type of a bear hug to just hold him. And I
put out a backup [call] . . . .”
       Avalos testified that during the ensuing struggle, Chavez ignored Duarte’s
commands to stop resisting. When Avalos threatened to use her taser, Chavez punched
her in the face. He then grabbed the microphone attached to Avalos’s chest and pulled
her down. He started grabbing at the belt where Avalos carried her handgun and, when
she turned her body to shield the gun, he grabbed her by the hair. Chavez did all this
while still lying on the bed with Duarte underneath him:
       “Q. And your partner during this time, what is he doing?
       “A. He was lost under Mr. Chavez.
       “Q. Can you explain that a little bit more?
       “A. He was under Mr. Chavez. They were both face up in the bed. And I could
only see my partner’s arms.”
       At this point, Avalos used her taser on Chavez, who fell from the bed onto the
floor but continued to resist. Finally, Avalos, Duarte and two backup officers succeeded
in handcuffing Chavez.
       Avalos acknowledged that Chavez never gave the officers permission to enter his
apartment. It is undisputed that the officers did not have a warrant to arrest Chavez or
search his apartment.
       Chavez did not testify at the suppression hearing.
       2. The denial of Chavez’s suppression motion.
       Following Avalos’s testimony, defense counsel argued that Officer Duarte had not
been lawfully performing his duties when he put his foot in Chavez’s doorway, grabbed
Chavez’s arm, and then entered Chavez’s apartment. Counsel argued that, because the
officers were not following the proper procedures for investigating a noise complaint,


                                             4
Chavez might have believed they were imposters and, therefore, it was reasonable for
him to use physical force to defend himself.
       The trial court disagreed, concluding the officers had probable cause to arrest
Chavez after he effectively announced that he was going to continue violating two
different disturbing the peace provisions: section 415, subdivision (2),4 and Los Angeles
Municipal Code section 112.01, subdivision (a).5 Moreover, when Chavez tried to shut
his apartment door, the officers were still investigating these offenses and, therefore, they
had probable cause to believe Chavez was also guilty of obstructing a peace officer in
violation of section 148, subdivision (a)(1).6 The trial court pointed out that under People
v. McKay (2002) 27 Cal.4th 601, the officers could have lawfully taken Chavez into
custody at that time because “ ‘an officer [who] has probable cause to believe that an
individual has committed even a very minor criminal offense in his presence . . . may,
without violating the Fourth Amendment, arrest the offender.’ ” (Id. at p. 607.) The trial
court then cited United States v. Santana (1976) 427 U.S. 38 [96 S.Ct. 2406], which held

4
         Section 415, subdivision (2), provides: “Any of the following persons shall be
punished by imprisonment in the county jail for a period of not more than 90 days, a fine
of not more than four hundred dollars ($400), or both such imprisonment and fine: [¶]
. . . [¶] (2) Any person who maliciously and willfully disturbs another person by loud
and unreasonable noise.”
5
       Los Angeles Municipal Code section 112.01, subdivision (a), provides: “It shall
be unlawful for any person within any zone of the City to use or operate any radio,
musical instrument, phonograph, television receiver, or other machine or device for the
producing, reproducing or amplification of the human voice, music, or any other sound,
in such a manner, as to disturb the peace, quiet, and comfort of neighbor occupants or any
reasonable person residing or working in the area.”
<https://www.google.com/?gws_rd=ssl#q=los+angeles+municipal+code+112.01(b)> (as
of Jan. 12, 2016)
6
          Section 148, subdivision (a)(1), provides: “Every person who willfully resists,
delays, or obstructs any public officer, peace officer, or an emergency medical technician
. . . in the discharge or attempt to discharge any duty of his or her office or employment,
when no other punishment is prescribed, shall be punished by a fine not exceeding one
thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or
by both that fine and imprisonment.”


                                               5
that a person cannot thwart an otherwise lawful arrest by retreating into the house. (Id. at
p. 42.) The trial court denied Chavez’s suppression motion on this ground.
       After his suppression motion was denied, Chavez withdrew his not guilty plea and,
pursuant to a plea bargain, pled “no contest”7 to a single count of having violated
section 69 (resisting executive officer by threats or violence). Two other charges were
dismissed pursuant to the plea agreement: battery on a peace officer, and assault on a
peace officer (§§ 243, subd. (b), 245, subd. (c)). The trial court suspended imposition of
sentence and granted Chavez probation for a period of three years.
                                      CONTENTION
       Chavez contends his conviction must be reversed because the trial court erred by
denying his motion to suppress evidence of all the observations made by the police
officers after they entered his apartment (i.e., the evidence that Chavez violently resisted
arrest). There is no merit to this claim.
                                       DISCUSSION
       1. Legal principles.
       “The Fourth Amendment provides ‘[t]he right of the people to be secure in their
persons, houses, papers and effects, against unreasonable searches and seizures, shall not
be violated . . . .’ (U.S. Const., 4th Amend.) This guarantee has been incorporated into
the Fourteenth Amendment to the federal Constitution and is applicable to the states.
[Citation.] A similar guarantee against unreasonable government searches is set forth in
the state Constitution (Cal. Const., art. I, § 13) but, since voter approval of Proposition 8
in June 1982, state and federal claims relating to exclusion of evidence on grounds of
unreasonable search and seizure are measured by the same standard. [Citations.] ‘Our
state Constitution thus forbids the courts to order the exclusion of evidence at trial as a
7
        Section 1016, subdivision 3, states in part: “The legal effect of [a no contest] plea,
to a crime punishable as a felony, shall be the same as that of a plea of guilty for all
purposes. In cases other than those punishable as felonies, the plea and any admissions
required by the court during any inquiry it makes as to the voluntariness of, and factual
basis for, the plea may not be used against the defendant as an admission in any civil suit
based upon or growing out of the act upon which the criminal prosecution is based.”


                                              6
remedy for an unreasonable search and seizure unless that remedy is required by the
federal Constitution as interpreted by the United States Supreme Court.’ [Citation.]”
(People v. Camacho (2000) 23 Cal.4th 824, 829-830, fn. omitted.)
       “[T]he United States Supreme Court has stated that ‘in order to claim the
protection of the Fourth Amendment, a defendant must demonstrate that he personally
has an expectation of privacy in the place searched, and that his expectation is
reasonable; i.e., one which has “a source outside of the Fourth Amendment, either by
reference to concepts of real or personal property law or to understandings that are
recognized and permitted by society.” ’ [Citation.] The defendant must assert a
reasonable expectation of privacy in ‘ “the particular area searched or thing seized in
order to bring a Fourth Amendment challenge.” ’ [Citation.] [¶] A defendant has the
burden at trial of establishing a legitimate expectation of privacy in the place searched or
the thing seized. [Citations.] The prosecution has the burden of establishing the
reasonableness of a warrantless search. [Citations.]” (People v. Jenkins (2000)
22 Cal.4th 900, 972.)
       The test for whether evidence must be excluded in the aftermath of illegal police
conduct is the so-called “fruit of the poisonous tree” doctrine: “Broadly speaking,
evidence may be excluded as ‘fruit of the poisonous tree’ where its discovery ‘results
from’ or is ‘caused’ by a Fourth Amendment violation. [Citation.] Exclusion is not
required, however, where the evidentiary ‘fruit’ is derived from a source that is
independent of the ‘poisonous’ conduct or where ‘ “the connection between the lawless
conduct of the police and the discovery of the challenged evidence has ‘become so
attenuated as to dissipate the taint.’ ” ’ [Citation.] The ‘fruit of the poisonous tree’
theory contemplates evidence being discovered along a causal ‘time line’ or ‘road,’
beginning at the ‘poison’ of a Fourth Amendment violation, and ending at the ‘fruit’ of
newly discovered information, witnesses, or physical evidence. [Citation.] When the
time line becomes too attenuated, or the causal ‘road’ is blocked by an intervening,
independent act, the ‘poison’ is declared purged and its evidentiary ‘fruit,’ is admissible.
[Citation.]” (In re Richard G. (2009) 173 Cal.App.4th 1252, 1262.)


                                              7
       “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures
inside a home without a warrant are presumptively unreasonable.” (Payton v. New York
(1980) 445 U.S. 573, 586 [100 S.Ct. 1371], fn. omitted.) However, the “warrant
requirement is excused . . . when exigent circumstances require prompt action by the
police.” (People v. Bacigalupo (1991) 1 Cal.4th 103, 122.) “ ‘[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.) “ ‘As a
general rule, the reasonableness of an officer’s conduct is dependent upon the existence
of facts available to him at the moment of the search or seizure which would warrant a
[person] of reasonable caution in the belief that the action taken was appropriate.
[Citation.] And 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.’ [Citation.]” (People v. Duncan (1986) 42 Cal.3d 91, 97-98.)
       “ ‘The standard of appellate review of a trial court’s ruling on a motion to suppress
[evidence] is well established. We defer to the trial court’s factual findings, express or
implied, where supported by substantial evidence. In determining whether, on the facts
so found, the search or seizure was reasonable under the Fourth Amendment, we exercise
our independent judgment.’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 384.)
       2. Discussion.
       Chavez contends that everything Officer Avalos witnessed after entering his
apartment was inadmissible under the fruit of the poisonous tree doctrine because it was
the product of a warrantless search or seizure that was presumptively unreasonable under
Payton v. New York, supra, 445 U.S. 573. However, we conclude that we need not reach
the warrantless entry issue because we find that Avalos had objectively reasonable


                                              8
grounds for entering Chavez’s apartment in order to render Duarte assistance under the
Fourth Amendment’s emergency aid exception. Therefore, we find that the trial court
properly denied Chavez’s suppression motion.
       The “ ‘police may enter a home without a warrant when they have an objectively
reasonable basis for believing that an occupant is seriously injured or imminently
threatened with such injury.’ [Citation.] ‘ “The need to protect or preserve life or avoid
serious injury is justification for what would be otherwise illegal absent an exigency or
emergency.” ’ [Citation.] ‘ “ ‘. . . [¶] The ‘ “emergency aid exception” ’ to the warrant
requirement ‘does not depend on the officers’ subjective intent or the seriousness of any
crime they are investigating when the emergency arises.’ [Citation.] Rather, the
exception ‘requires only “an objectively reasonable basis for believing . . .” [citation] that
“a person within [the house] is in need of immediate aid.” ’ [Citation.]” (People v.
Troyer (2011) 51 Cal.4th 599, 605.)
       The person within the house in need of emergency aid may be a fellow member of
law enforcement. That is, the exception is triggered if there exists an objectively
reasonable basis for believing that a fellow police officer is threatened with immediate
injury. The exception “asks whether . . . considering the totality of the circumstances,
law enforcement had an objectively reasonable basis for concluding that there was an
immediate need to protect others or themselves from serious harm.” (United States v.
Snipe (9th Cir. 2008) 515 F.3d 947, 952; see United States v. Huddleston (7th Cir. 2010)
593 F.3d 596, 600 [“where police reasonably believe that their safety, or the safety of the
public, may be threatened, exigent circumstances exist”]; United States v. Najar (10th
Cir. 2006) 451 F.3d 710, 717 [“[T]he ‘exigent circumstances’ exception to warrantless
entry [applies] when the circumstances pose[ ] a significant risk to the safety of a police
officer or a third party.”].)
       Chavez argues there was no exigent circumstance here because “[a]t the time of
the instant entry, there was no injury and none was imminent.” We disagree. When
Officers Duarte and Avalos responded to the early morning complaint about loud noise,
they encountered a belligerent 400-pound man who loudly proclaimed he would not


                                              9
cooperate with the officers. When Duarte prevented Chavez from closing his front door
by sticking his foot across the threshold and then grabbing Chavez’s arm, he and Chavez
became physically entangled and Chavez apparently drew Duarte across the threshold
and into his apartment. Avalos testified that Chavez “clenched his fists and starting
walking backwards and taking [Duarte] with him.” Avalos testified that as Duarte was
pulled into Chavez’s apartment, she followed. Inside, Chavez and Duarte fell onto the
bed and continued their struggle. While trying to protect her partner, Avalos was drawn
into the struggle and ultimately subdued Chavez with her taser.
       When Chavez pulled Duarte into the apartment and continued to struggle violently
with him, Avalos had reasonable grounds to believe that she also needed to enter the
apartment in order to protect Duarte from injury. Chavez argues Duarte’s entry was not
actually involuntary because “Duarte initiated physical contact, and maintained his grip
even as Chavez tried to retreat inside his home. The record does not support the assertion
that appellant ‘pulled Officer Duarte inside.’ ” The trial court disagreed with Chavez’s
characterization, and seemed to make an implied finding that Duarte’s entry was
involuntary. The trial court said, “It seems almost like a fluid motion from the threshold
into the house based upon the combat. So I’m not sure that the officer willfully entered
the house. I’m sure he would much rather have performed the arrest or issued the citation
in the threshold.” But we need not resolve this factual dispute because, even if Duarte
violated the Fourth Amendment by entering the apartment, Avalos did not violate the
Fourth Amendment by entering the apartment in order to protect Duarte from physical
harm at the hands of Chavez.8
       We conclude that, in the particular circumstances of this case, the trial court
properly denied Chavez’s suppression motion because Avalos had an objectively
reasonable basis for believing that it was necessary to follow Duarte and Chavez into the
apartment in order to protect Duarte from injury.
8
       “Although our analysis differs from that of the trial court, ‘ “we review the ruling,
not the court’s reasoning and, if the ruling was correct on any ground, we affirm.” ’
[Citation.]” (People v. Rogers (2009) 46 Cal.4th 1136, 1162, fn. 14.)


                                             10
                                    DISPOSITION
      The judgment is affirmed.



      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                EDMON, P. J.

We concur:




                    LAVIN, J.




                    JONES, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                           11
