Filed 5/9/13 P. v. Hix CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B244640

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. 1PK05401)
         v.

RONALD STEWART HIX,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Christian R. Gullon, Judge. Affirmed.


         Law Offices of Chad R. Maddox and Chad R. Maddox for Defendant and
Appellant.


         Jackie Lacey, District Attorney, Phyllis Asayama and Roberta Schwartz, Deputy
District Attorneys for Plaintiff and Respondent.
       Defendant and appellant Ronald Stewart Hix (defendant) appeals from the
judgment entered following his guilty plea and conviction of driving a vehicle while
having a blood alcohol level of .08 percent or higher, a misdemeanor in violation of
Vehicle Code section 23152, subdivision (b). Defendant contends the trial court erred by
denying his motion to suppress evidence. We disagree and affirm the judgment.
                                    BACKGROUND
       A misdemeanor complaint filed by the Los Angeles County District Attorney
alleged that on or about August 11, 2011, defendant drove a vehicle while being under
the influence of alcohol, in violation of Vehicle Code section 23152, subdivision (a), and
drove a vehicle while having a blood alcohol level of .08 percent or higher, in violation of
Vehicle Code section 23512, subdivision (b).
       Defendant filed a motion to suppress evidence pursuant to Penal Code section
1538.5 on the ground that his arrest was illegal because the arresting officer had no
reasonable suspicion or probable cause to stop and detain him. Defendant’s motion to
suppress was heard and testimony was taken in connection with that motion on January
24, 2012.
       Officer Rivera, a patrol officer assigned to the City of Pomona with 20 years of
experience, testified that on August 11, 2011, at 1:00 a.m., he was driving northbound on
San Antonio Street when he saw a vehicle stopped on the right curb with its brake lights
on. The driver of the vehicle was talking to a female pedestrian standing on the curb. As
Rivera’s vehicle approached, defendant’s car pulled away from the curb, turning
eastbound onto Hawthorne Place. Rivera stopped and asked the pedestrian what was
going on, and the pedestrian responded that the driver had been trying to start a
conversation with her. Rivera asked the pedestrian if she knew the driver, and she said
no. When asked by the prosecutor whether Rivera had an opinion as to whether or not
the pedestrian was a prostitute, Rivera responded that it “wouldn’t surprise me,” given
the time of day and the area, which was known for narcotics and prostitution.
       Rivera then proceeded to follow defendant’s vehicle as it proceeded eastbound on
Hawthorne Place, a residential street with cars parked along both sides. Defendant was

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driving within the speed limit, his vehicle was not weaving back and forth, and Rivera
observed no Vehicle Code violation. Rivera noticed, however, that defendant’s vehicle
was veering toward the cars parked along the south curbline and came within a foot of
hitting those cars, even though there was ample room on the street -- approximately 25
feet -- between the cars parked on either side. Rivera then “conducted a traffic stop, a
welfare check to find out if the driver was okay.” He did so by activating the red light on
his black and white patrol car, thereby indicating that he wanted defendant to pull over.
Defendant was in the process of making a southbound turn from Hawthorne Place onto
Mountain View Avenue, and Rivera observed that the front tire of defendant’s vehicle
came within three feet of striking the curb.
       At the conclusion of Officer Rivera’s testimony, the trial court heard argument
from the parties and denied defendant’s motion to suppress on the grounds that the officer
had a reasonable suspicion of criminal activity that warranted further investigation and
that the stop was a reasonable exercise of the officer’s community caretaking function.
       Defendant reserved the right to appeal the trial court’s denial of the motion to
suppress and pleaded guilty to driving a vehicle while having a blood alcohol content of
.08 percent or higher. The charge of driving a vehicle while under the influence of
alcohol was dismissed. Defendant was placed on three years of summary probation and
was ordered to pay fines, fees, and penalty assessments and to comply with the terms and
conditions of his probation.
       Defendant filed a timely notice of appeal, and the Appellate Division of the
Los Angeles County Superior Court affirmed the conviction in case No. BR049880. On
November 13, 2012, we granted defendant’s petition to transfer and ordered the case
transferred to this court. (Cal. Rules of Court, rules 8.1000, 8.1002.)
                                      DISCUSSION
I. Applicable legal principles
       The Fourth Amendment to the United States Constitution protects citizens from
unreasonable searches and seizures by law enforcement authorities. To be considered
reasonable, a search and seizure must generally be conducted pursuant to a valid warrant

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issued by a judicial officer. A warrantless search or seizure may be conducted only if it
comes within a specific judicially recognized exception. (Cady v. Dombrowski (1973)
413 U.S. 433, 439 (Dombrowski).) One such exception is that an officer may stop and
detain a motorist on reasonable suspicion that the driver has violated the law. (People v.
Wells (2006) 38 Cal.4th 1078, 1082.) For a detention to be reasonable, the detaining
officer’s suspicions must be supported by “specific articulable facts that, considered in
light of the totality of the circumstances, provide some objective manifestation that the
person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th
224, 231.) Another exception, known as the community caretaking exception, applies
when the search or seizure is conducted as an exercise of a law enforcement officer’s
community caretaking function. (See Dombrowski, supra, at pp. 441, 447-448; People v.
Madrid (2008) 168 Cal.App.4th 1050, 1055-1056.)
II. Reasonable suspicion of criminal activity
       Substantial evidence supports the trial court’s determination that the facts and
circumstances known to Officer Rivera support an objective suspicion that defendant was
driving under the influence of alcohol or a controlled substance, in violation of the
Vehicle Code. The trial court found that Officer Rivera’s account was credible, and we
may not review that finding. (People v. Jones (1990) 51 Cal.3d 294, 314 [credibility of a
witness and the truth or falsity on which that determination depends is the exclusive
province of the trier of fact].)
       Officer Rivera was an experienced police officer with 20 years of experience. He
observed defendant’s vehicle stopped at approximately 1:00 a.m. and defendant
conversing with a pedestrian in an area of Pomona known for narcotics and prostitution.
Rivera followed defendant’s vehicle onto a residential street where cars were parked on
either side. Although defendant was proceeding slowly at only 25 miles per hour, and
there was ample room on the street between the cars parked on either side of the street,
defendant’s vehicle was veering toward the cars parked along the southern curbline and
came within a foot of striking those cars. Rivera also observed defendant attempting to


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make a southbound turn during which the front tire of defendant’s vehicle came close to
striking the southwest curb.
       The facts presented support a reasonable suspicion of criminal activity on the part
of defendant. Defendant’s veering toward parked cars and coming within a foot of
hitting those cars while proceeding at a low rate of speed on a street with ample room to
maneuver his vehicle, his near miss of the curb, and the fact that these things occurred at
1:00 a.m. in an area known for narcotics dealing were sufficient to support an objective
suspicion that defendant was driving under the influence of alcohol or narcotics.
Defendant accordingly was not detained in violation of the Fourth Amendment.
III. Community caretaking exception
       A. General principles
       “The community caretaking exception to the warrant requirement derives from the
expanded role undertaken by the modern police force.” (People v. Madrid, supra, 168
Cal.App.4th at p. 1055.) “‘The policeman, as a jack-of-all emergencies, has “complex
and multiple tasks to perform in addition to identifying and apprehending persons
committing serious criminal offenses”; by default or design he is also expected to “aid
individuals who are in danger of physical harm,” “assist those who cannot care for
themselves,” and “provide other services on an emergency basis.”’ [Citation.]” (Id. at p.
1056, fn. 3.) This is especially true with regard to motor vehicles. As recognized by the
United States Supreme Court in Dombrowski: “Because of the extensive regulation of
motor vehicles and traffic, and also because of the frequency with which a vehicle can
become disabled or involved in an accident on public highways, the extent of police-
citizen contact involving automobiles will be substantially greater than police-citizen
contact in a home or office. Some such contacts will occur because the officer may
believe the operator has violated a criminal statute, but many more will not be of that
nature. Local police officers . . . frequently investigate vehicle accidents in which there is
no claim of criminal liability and engage in what, for want of a better term, may be
described as community caretaking functions, totally divorced from the detection,


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investigation, or acquisition of evidence relating to the violation of a criminal statute.”
(Dombrowski, supra, 413 U.S. at p. 441.)
       Dombrowski concerned a warrantless police search of an impounded vehicle
owned by a defendant who was also a police officer. (Dombrowski, supra, 413 at p.
435.) The defendant, who was intoxicated and incoherent at the time of his arrest, did not
have his service revolver on his person. (Id. at p. 436.) The purpose of the search was to
retrieve the revolver as “standard” police department procedure in order “to protect the
public from the possibility that a revolver would fall into untrained or perhaps malicious
hands.” (Id. at p. 443.) The revolver, and other evidence leading to the defendant’s
subsequent murder conviction, were recovered from the defendant’s vehicle. (Id. at p.
437.) The United States Supreme Court held the warrantless search of the vehicle to be
constitutionally valid because the officers reasonably believed the vehicle contained a
gun and was vulnerable to intrusion by vandals. (Id. at p. 448.)
       The California Supreme Court extended the community caretaking exception set
forth in Dombrowski to the search of a home that appeared to have been burglarized in
People v. Ray (1999) 21 Cal.4th 464. The court in Ray noted that police officers
regularly perform “‘community caretaking functions’ -- helping stranded motorists,
returning lost children to anxious parents, assisting and protecting citizens in need.” (Id.
at p. 467.) The court distinguished the warrant exception for exigent circumstances from
the community caretaking exception and concluded the “emergency aid” doctrine was a
subcategory of the latter exception. (Id. at p. 471.) The “emergency aid” component of
the community caretaking exception “requires specific, articulable facts indicating the
need for ‘“swift action to prevent imminent danger to life or serious damage to property
. . . .” [Citation.]’ [Citation.]” (Id. at pp. 472-473.) The court in Ray further noted,
however that “circumstances short of a perceived emergency may justify a warrantless
entry, including the protection of property, as ‘where the police reasonably believe that
the premises have recently been or are being burglarized.’ [Citation.]” (Id. at p. 473.)
The Supreme Court set forth the following standard for applying the exception: “The
appropriate standard under the community caretaking exception is one of reasonableness:

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Given the known facts, would a prudent and reasonable officer have perceived a need to
act in the proper discharge of his or her community caretaking functions? . . . ‘[I]n
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.]” (Id. at pp. 476-477.)
       B. The community caretaking exception may justify a vehicle stop
       Defendant in the instant case contends the community caretaking exception should
not be applied to permit the stop of a vehicle and the detention of the person inside. This
argument was considered and rejected by the First Appellate District in People v. Madrid,
a case involving a vehicle stop based on a police officer’s observation that a passenger
entering the vehicle was sweating, walked with an “unsteady” gait, and appeared to be
under the influence of alcohol or drugs, to have a medical problem, or to have been a
victim of an assault. The officer stopped the defendant’s vehicle “‘to check on [the
passenger’s] well being’” and after questioning the driver, recovered hypodermic needles
and heroin. (People v. Madrid, supra, 168 Cal.App.4th at pp.1053-1054.) The defendant
unsuccessfully moved to suppress the evidence seized by the police and was subsequently
convicted of possession of heroin for sale. In appealing his conviction, the defendant
argued that the community caretaking exception should not apply to warrantless vehicle
stops. The First Appellate District rejected a categorical exemption for vehicle stops:
“We are unwilling to adopt appellant’s position that the reasonableness of a vehicle stop
can never rest on the officer’s perception that an occupant’s welfare requires this action.”
(Id. at p. 1058.)
       The court in Madrid applied our supreme court’s reasoning in Ray that “the
community caretaking exception applies when police officers ‘acted reasonably to protect
the safety and security of persons and property’ [citation], that is, when ‘a prudent and
reasonable officer [would] have perceived a need to act in the proper discharge of his or
her community caretaking functions’ [citation].” (People v. Madrid, supra, 168

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Cal.App.4th at p. 1058.) We agree with the First Appellate District’s reasoning in
Madrid that the community caretaking exception may justify a warrantless vehicle stop of
a moving vehicle.
       C. The community caretaking exception justified the vehicle stop
       After determining that the community caretaking exception may justify a vehicle
stop, the court in Madrid concluded that a reasonable officer would not have perceived
the need to do so under the circumstances presented in that case. (People v. Madrid,
supra, 168 Cal.App.4th at p. 1058.) The court in Madrid cited as “instructive” the
approach taken by the Texas court of criminal appeals in Wright v. State
(Tex.Crim.App.1999) 7 S.W.3d 148, in which a deputy sheriff stopped a vehicle after
observing a rear passenger lean out the rear window and vomit. The Wright court
acknowledged that the community caretaking exception to the warrant requirement may
apply in such circumstances and set forth a nonexclusive list of factors relevant to
whether the officer acted reasonably in stopping the vehicle to determine whether the
individual needed assistance: “‘(1) the nature and level of the distress exhibited by the
individual; [¶] (2) the location of the individual; [¶] (3) whether or not the individual was
alone and/or had access to assistance independent of that offered by the officer; and [¶]
(4) to what extent the individual -- if not assisted -- presented a danger to himself or
others.’ [Citation.]” (People v. Madrid, supra, 168 Cal.App.4th at p. 1059.) The court
in Madrid applied these factors and concluded the vehicle stop in the case before it was
not reasonable.
       The court in Madrid first determined that the stop had been based on the officer’s
observations of the passenger, and that “the balance would weigh more heavily in favor
of the officer’s action if the officer believed the driver was in great distress; an extremely
ill driver is a danger not only to himself but to other members of the public as well.
[Citation.]” (Madrid, supra, 168 Cal.App.4th at pp. 1059-1060.) Second, the court in
Madrid determined that no facts indicated that the defendant or his passenger were in
need of help. Before the stop, the passenger observed by the detaining officer “had
exhibited a low level of distress.” (Id. at p. 1060.) The only facts the officer articulated

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as grounds for detention were that the passenger walked with an unsteady gait, at one
point used a nearby shopping cart to stop himself from falling, and appeared to be
sweating. Yet the passenger was able to walk 50 feet to the defendant’s vehicle without
assistance, he was not alone, and neither defendant nor the passenger indicated they were
in need of help. The court further determined that nothing about the location “sitting in
the passenger seat of a vehicle being lawfully driven through a shopping center parking
lot,” suggested that the passenger or defendant were in need of additional aid. (Ibid.)
Finally, the court in Madrid determined that the facts did not support a reasonable
conclusion that the passenger presented a danger to himself or others. The court rejected
the argument that stopping the vehicle was justified in order to avert a possible drug
overdose, because an inference by the officer that the passenger was suffering from a
drug overdose, based solely on the officer’s observations that the passenger was walking
with an unsteady gait and sweating was “unreasonably speculative.” (Id. at p. 1060.)
       In concluding that the stop could not reasonably be justified under the community
caretaking exception, the court in Madrid observed that “‘[R]easonableness “depends ‘on
a balance between the public interest and the individual’s right to personal security free
from arbitrary interference by law officers,’” [citation].’ [Citation.] In engaging in this
weighing process, courts must act as vigilant gatekeepers to ensure that the community
caretaking exception does not consume the warrant requirement. [Citation.]” (People v.
Madrid, supra, 168 Cal.App.4th at p. 1058.)
       Applying the factors used in Madrid to the instant case, we conclude that detention
of defendant’s vehicle was justified under the community caretaking exception. Here,
unlike Madrid, defendant was the driver and not the passenger of the vehicle. He was
unaccompanied by any passenger who could assist him. Officer Rivera observed that
defendant’s vehicle was veering toward cars parked on the street and came within a foot
of hitting those cars, despite ample room on the street for his car to proceed without
coming too close to the parked cars. While making a southbound turn, the front wheel of
defendant’s vehicle came close to hitting the southwestern curb. These observations
would lead a reasonable officer to conclude that defendant might be in need of assistance,

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either because he was disoriented or because he was having difficulty controlling his
vehicle. Officer Rivera’s detention of defendant’s vehicle was a reasonable exercise of
his community caretaking function. Defendant was not detained in violation of the
Fourth Amendment.
                                    DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                _____________________________, J.
                                                CHAVEZ

We concur:



_____________________________, Acting P. J.
ASHMANN-GERST



_____________________________, J.*
FERNS




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

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