Filed 3/22/16 P. v. Murillo 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                          B257233

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. LA077362)
         v.

PORFIRIO LEONEL MURILLO et al.,

         Defendants and Appellants.




         APPEAL from judgments of the Superior Court of Los Angeles County, Joseph A.
Brandolino, Judge. Reversed and remanded with directions.
         Carlos Ramirez, under appointment by the Court of Appeal, for Defendant and
Appellant Porfirio Murillo.
         Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant
and Appellant Daniel Valdez.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Russell A.
Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
                                             _________________________
       Defendants and appellants Porfirio Leonel Murillo and Daniel Valdez pleaded no
contest to carrying a loaded, unregistered firearm; Murillo additionally pleaded no contest
to possession of a firearm by a felon and possession of a controlled substance,
methamphetamine, with a firearm. Both were placed on probation. Appellants contend
the trial court erred by denying their suppression motions.1 We agree.
                   FACTUAL AND PROCEDURAL BACKGROUND
       1. The suppression motions
       After police officers found Murillo and Valdez in possession of a bag containing a
handgun, and methamphetamine in Murillo’s pocket, the men were arrested and charged
with the aforementioned offenses. Appellants moved to suppress evidence obtained
during their encounter with the officers pursuant to Penal Code section 1538.5.2
       a. Evidence
       Viewed in the light most favorable to the trial court’s ruling (People v. Davis
(2005) 36 Cal.4th 510, 528-529), the following relevant evidence was adduced at the
hearing on the suppression motion.
       On March 31, 2014, at approximately 7:10 p.m., Los Angeles Police Department
(L.A.P.D.) Officer Jacob Palacios and his partner, Officer Urbina, were on foot patrol in a
“huge” North Hollywood apartment complex that covered a city block and was enclosed
by a fence. Other officers were patrolling inside the apartment building. The area was
plagued by narcotics and gang activity, and there were “a lot of gang members in [the]
complex.” Three to four weeks earlier, Palacios had met with the owner and the manager
of the complex and discussed their “zero tolerance” policy toward trespassers. A city


1
        Counsel for appellant Valdez initially filed an opening brief which raised no
issues, and requested this court to conduct an independent review of the record pursuant
to People v. Wende (1979) 25 Cal.3d 436, 441. On January 23, 2015, counsel requested
to join in the issue raised in appellant Murillo’s opening brief. The People thereafter filed
an opposition brief addressing appellants’ contentions. In light of Valdez’s request and
our resolution of the issues, the Wende request is moot.
2
       All further undesignated statutory references are to the Penal Code.


                                             2
abatement order regarding trespassing had been issued to the complex. No trespassing
signs were posted at the front and rear of the complex, as well as on the gates and nearby
alley walls.
       Palacios checked a rear alley area inside the fenced complex, where gang activity
had been observed. He saw Valdez, Murillo, and a third man, Brian Colon, seated
together in an exterior stairwell located inside the fenced complex. Colon and Valdez
were at the top of the stairs, and Murillo was seated just below them. Valdez was
wearing a red hat, which was consistent with gang attire worn by North Hollywood
Locos gang members. A no trespassing sign was posted nearby. Palacios had
encountered Valdez and Murillo previously, and knew they were not residents of the
apartment complex.
       Palacios asked the three men if they lived at the complex; they said no. They did
not say they had been invited onto the property or were visiting friends. Palacios did not
ask whether they had permission to be on the property. Palacios ordered the men to come
down to him, and they complied. They left a Gatorade bottle and a black and blue bag at
the top of the stairwell where they had been sitting.
       Palacios spoke to and detained the men at the bottom of the stairwell on suspicion
of trespassing. He radioed another officer, L.A.P.D. Sergeant Guttilla, to alert him of the
detention. After speaking with Murillo, Valdez, and Colon, Palacios determined that the
men “were all going to be arrested for trespassing.” Murillo spontaneously volunteered
that he was on probation. Urbina asked whether Murillo had anything illegal on his
person. Murillo replied that he had narcotics. Officer Urbina searched Murillo’s person
and recovered a small clear baggie from his pocket. Murillo said the substance in the
baggie was “meth.”
       While Palacios was speaking to the men at the bottom of the stairwell, Guttilla and
another officer arrived at the second floor landing. Approximately 35 seconds after
Murillo, Valdez, and Colon walked down the stairs, Guttilla picked up the bag where it
sat on the second floor, examined its contents, and signaled to Palacios that it contained a



                                             3
gun. Palacios thereafter also looked in the bag and observed a loaded blue steel revolver
inside.
          Officers transported Murillo to the police station in a police car. Valdez was also
arrested. Colon was cited for misdemeanor trespassing and released.
          A time-stamped surveillance tape showed that just prior to the incident, the men
were among a group of six men walking westbound in the alley. They entered the
apartment complex through a gate that had been propped open. Initially, Valdez was
carrying the bag. Murillo, Valdez, and Colon climbed to the top of the stairwell and sat
down. Murillo carried the bag up the stairs and placed it on the ground. The men
remained at the top of the stairwell for approximately 10 minutes before the encounter
with the officers.
          It was undisputed that the officers had neither a warrant nor consent to search the
bag.
          b. Ruling
          The People argued that, once Palacios discovered Valdez and Murillo were not
residents, he had probable cause to arrest them, and the search of the bag was permissible
as a search incident to arrest. Alternatively, the bag would have been subject to an
inventory search when Murillo was booked, and therefore suppression was not required
under the inevitable discovery doctrine. Appellants argued that Palacios lacked probable
cause to arrest them for trespassing; the search was not a valid search incident to arrest
because the bag was out of their reach; and the inevitable discovery doctrine was
inapplicable because Colon, who was not arrested, could have taken custody of the bag.
          The trial court denied the motion. It reasoned that Valdez and Murillo had a
reasonable expectation of privacy in the bag because both had handled and carried it.
Palacios had probable cause to arrest Valdez for trespassing and Murillo for trespassing
and possession of methamphetamine. The search was not a lawful search incident to
arrest, because the bag was at the top of the stairs and not within appellants’ immediate
reach. However, because appellants were arrested, the officers had a duty to safeguard



                                                4
the bag, which appeared to be their property. Because the bag would have been subject
to an inventory search, the inevitable discovery doctrine applied.
       2. Procedure
       After the trial court denied the suppression motions, Murillo pleaded no contest to
carrying a loaded, unregistered firearm (§ 25850, subd. (a)); possession of a firearm by a
felon (§ 29800, subd. (a)(1)); and possession of a controlled substance,
methamphetamine, while armed with a firearm (Health & Saf. Code, § 11370.1, subd.
(a)). Murillo also admitted a prior conviction for receiving stolen property (§ 496, subd.
(a)). The trial court suspended imposition of sentence and placed Murillo on formal
probation for a period of three years on condition, inter alia, that he serve 364 days in
county jail. It imposed a restitution fine, a suspended probation revocation restitution
fine, a court operations assessment, and a criminal conviction assessment.
       Valdez pleaded no contest to carrying a loaded, unregistered firearm. (§ 25850,
subd. (a).) On Valdez’s motion, the offense was reduced to a misdemeanor. The trial
court suspended imposition of sentence and placed Valdez on summary probation for a
period of three years on condition, inter alia, that he complete 20 days of community
labor, with credit for 9 days completed. It imposed a restitution fine, a suspended
probation revocation restitution fine, a court operations assessment, and a criminal
conviction assessment.
       Murillo and Valdez appeal.
                                       DISCUSSION
       1. Standard of review
       The Fourth Amendment guarantees the right to be free of unreasonable searches
and seizures by law enforcement personnel. (U.S. Const., 4th Amend.; People v. Rogers
(2009) 46 Cal.4th 1136, 1156.) When reviewing a trial court’s ruling on a suppression
motion, we defer to the trial court’s express or implied factual findings if they are
supported by substantial evidence, but exercise our independent judgment to determine
whether, on the facts found, the search or seizure was reasonable under the Fourth
Amendment. (People v. Suff (2014) 58 Cal.4th 1013, 1053; Robey v. Superior Court

                                              5
(2013) 56 Cal.4th 1218, 1223.) Challenges to the admissibility of a search or seizure
must be evaluated solely under federal constitutional standards. (Robey v. Superior
Court, supra, at p. 1223; People v. Lenart (2004) 32 Cal.4th 1107, 1118.) A warrantless
search is presumed to be unreasonable, and the prosecution bears the burden of
demonstrating a legal justification for it. (People v. Suff, supra, at p. 1053; People v.
Redd (2010) 48 Cal.4th 691, 719.) If there is a legitimate reason for a search or seizure,
an officer’s subjective motivation is generally irrelevant. (Whren v. United States (1996)
517 U.S. 806, 811–813; People v. Letner and Tobin (2010) 50 Cal.4th 99, 144; People v.
Evans (2011) 200 Cal.App.4th 735, 742.) We will affirm the trial court’s ruling if it is
correct on any theory of law applicable to the case. (People v. Evans, supra, at p. 742.)
       2. Application here
       The trial court determined, based on the videotape showing both Valdez and
Murillo carrying the bag at different times, that both had a reasonable expectation of
privacy and could move to suppress. The People do not challenge this ruling.
       The initial detention of appellants was lawful, and they do not contend otherwise.
“ ‘ “A detention is reasonable under the Fourth Amendment when the detaining officer
can point to 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.” [Citation.]’ ” (People v. Suff, supra, 58 Cal.4th at
pp. 1053-1054; People v. Bennett (1998) 17 Cal.4th 373, 386-387 [officers may
“temporarily detain a suspect based only on a ‘reasonable suspicion’ that the suspect has
committed or is about to commit a crime”]; In re H.M. (2008) 167 Cal.App.4th 136, 142.)
Palacios knew, from previous encounters with appellants, that neither lived at the
apartment complex. Their presence inside the fenced property provided reasonable
suspicion for the detention.
       Substantial evidence also supported the trial court’s conclusion that there was
probable cause to arrest both appellants. Probable cause to arrest exists if facts known to
the arresting officer would lead a person of ordinary care and prudence to entertain an
honest and strong suspicion that an individual is guilty of a crime. (People v. Kraft

                                               6
(2000) 23 Cal.4th 978, 1037; In re J.G. (2010) 188 Cal.App.4th 1501, 1506.) When an
officer has probable cause to believe that an individual has committed even a minor
criminal offense in his or her presence, the subject’s arrest does not offend the Fourth
Amendment. (Virginia v. Moore (2008) 553 U.S. 164, 171, 178; Atwater v. Lago Vista
(2001) 532 U.S. 318, 354; People v. McKay (2002) 27 Cal.4th 601, 607; People v. Gomez
(2004) 117 Cal.App.4th 531, 538-539.) Officer Palacios had probable cause to believe
appellants were committing the offense of trespassing. (See § 602.8, subd. (a) [“Any
person who without the written permission of the landowner, the owner’s agent, or the
person in lawful possession of the land, willfully enters any lands . . . enclosed by fence,
belonging to, or occupied by, another . . . is guilty of a public offense”].) Appellants
admitted they were not residents of the apartment complex.3 They were not accompanied
by a resident of the complex, nor did they state that they were on the premises with
permission or by invitation. (Cf. In re Humberto O. (2000) 80 Cal.App.4th 237, 242
[probable cause to arrest juvenile for truancy existed when, inter alia, juvenile confirmed
he attended school and failed to offer an excuse for being out of school during school
hours].) The complex was fenced, and no trespassing signs were displayed near the
stairwell. There was therefore probable cause to arrest appellants.4
       As the trial court found, the search of the bag was not a valid search incident to
arrest, however. It is settled that an officer may lawfully conduct a warrantless search of
an arrestee’s person, and the area within his or her immediate control, that is, the area

3
       Palacios’s on-the-scene questioning of appellants was lawful despite the absence
of Miranda advisements. (Miranda v. Arizona (1966) 384 U.S. 436.) Miranda
advisements are required only when a person is subjected to custodial interrogation, not a
detention. (People v. Tully (2012) 54 Cal.4th 952, 982-983; People v. Davidson (2013)
221 Cal.App.4th 966, 970-971.)
4
        Of course, Murillo admitted possessing methamphetamine, and methamphetamine
was discovered in his pocket, a circumstance that provided an alternative ground for his
arrest. The record is not entirely clear as to whether the bag was searched before or after
discovery of the methamphetamine, however. Therefore we do not consider the
discovery of the methamphetamine in analyzing the reasonableness of the search of the
bag.


                                              7
into which the arrestee might reach to retrieve a weapon or destroy evidence. (Chimel v.
California (1969) 395 U.S. 752, 763; People v. Diaz (2011) 51 Cal.4th 84, 90,
disapproved on another ground by Riley v. California (2014) __ U.S. __ [134 S.Ct.
2473]; People v. Evans, supra, 200 Cal.App.4th at pp. 744-745.)5 A search incident to
arrest may immediately precede the actual arrest, as long as there is probable cause to
arrest before the search occurred. (Rawlings v. Kentucky (1980) 448 U.S. 98, 111;
People v. Avila (1997) 58 Cal.App.4th 1069, 1076-1077.) The search incident to arrest
exception derives from interests in officer safety and evidence preservation that are
typically implicated in arrest situations. (People v. Evans, supra, at p. 744.) Here, as the
trial court found, the bag was not in appellants’ reach when they were arrested. They
were on the ground level, at the bottom of the stairwell; the bag was at the top of a flight
of stairs. The People do not challenge this conclusion.
       Instead, the People contend, and the trial court found, that suppression was not
required under the inevitable discovery doctrine. The People’s theory is as follows. The


5
        Under some circumstances, the “immediate area” may be more broadly defined.
“A different rule of reasonableness applies when the police have a degree of control over
a suspect but do not have control of the entire situation. In such circumstances—e.g., in
which third parties known to be nearby are unaccounted for, or in which a suspect has not
yet been fully secured and retains a degree of ability to overpower the police or destroy
evidence—the Fourth Amendment does not bar the police from searching the immediate
area of the suspect’s arrest as a search incident to an arrest.” (People v. Leal (2009)
178 Cal.App.4th 1051, 1060; see People v. Summers (1999) 73 Cal.App.4th 288, 290-291
[officer reasonably searched bed where arrestee had been sleeping, even though arrestee
was handcuffed and being escorted from trailer by another officer, where one of the
arrestee’s roommates was in the vicinity but unaccounted for, and another was present
and free of police control].) Here, appellants and Colon were standing at the bottom of
the flight of stairs, and the bag was at the top, when the search occurred. Even if the
definition of “immediate area” could be stretched to reach the top of the stairs when
officers face a fluid and uncontrolled situation, such was not the case here. At least three
officers were on the scene, appellants and Colon were cooperative and noncombative,
and no other persons associated with the trio were known to be unaccounted for. Most
significantly, Palacios did not testify that Guttilla searched the bag as a safety precaution.
The area at the top of the stairs cannot be considered to be in appellants’ immediate
control.


                                              8
officers had a duty, pursuant to their “community caretaking function,” to safeguard the
property of persons whom they arrest. Therefore, they would have been required to take
the bag to the police station for safekeeping, rather than leave it lying at the top of the
stairs. At the police station, the bag would have been subject to an inventory or booking
search, and the gun would inevitably have been discovered.
       Under the inevitable discovery doctrine, illegally seized evidence is admissible if
“it would have been discovered by the police through lawful means.” (People v. Robles
(2000) 23 Cal.4th 789, 800; People v. Superior Court (Chapman) (2012) 204
Cal.App.4th 1004, 1021.) The doctrine is “ ‘an extrapolation from the independent
source doctrine: Since the tainted evidence would be admissible if in fact discovered
through an independent source, it should be admissible if it inevitably would have been
discovered.’ [Citation.] The purpose of the inevitable discovery rule is to prevent the
setting aside of convictions that would have been obtained without police misconduct.
[Citation.]” (People v. Robles, supra, at p. 800; Nix v. Williams (1984) 467 U.S. 431,
442-444, 447; People v. Hughston (2008) 168 Cal.App.4th 1062, 1071.) The People
have the burden of establishing that illegally seized evidence is admissible under the
inevitable discovery rule. (People v. Robles, supra, at pp. 800-801.) To establish
inevitable discovery, the prosecution “must demonstrate by a preponderance of the
evidence that, due to a separate line of investigation, application of routine police
procedures, or some other circumstance,” the unlawfully seized evidence “would have
been discovered by lawful means.” (People v. Hughston, supra, at p. 1072.) In
analyzing whether the exception applies, we must determine whether, viewing the
circumstances as they existed at the instant before the unlawful search, what would have
happened had the unlawful search never occurred. (Ibid.)
       Had appellants not been accompanied by Colon, or had Colon also been arrested,
the answer to this question would be fairly simple. Police officers have a duty to ensure
that an arrestee’s property is safeguarded from theft. (People v. Scigliano (1987)
196 Cal.App.3d 26, 29-30.) “The duty to protect an arrestee’s property falls within the
officer’s ‘community caretaking function’ . . . .” (Id. at p. 29.) A routine inventory of the

                                               9
belongings of an arrestee who will be incarcerated is lawful. (Illinois v. Lafayette (1983)
462 U.S. 640, 646-648; People v. Clark (1992) 3 Cal.4th 41, 142-143; People v.
Hamilton (1988) 46 Cal.3d 123, 137-138; In re Angel R. (2008) 163 Cal.App.4th 905,
909-910; People v. Ingham (1992) 5 Cal.App.4th 326, 332.) Here, the officers could not
leave the bag lying unattended at the top of the stairs in the apartment complex. It could
have contained valuable or dangerous items, and the officers would have been remiss
leaving it lying about. (See People v. Scigliano, supra, at p. 30 [had defendant been
arrested with expensive property in his possession, “the officer would have had a duty to
provide for its safekeeping and not simply leave it at the arrest site”].) Had the bag been
taken to the police station for safekeeping, booking officers would undoubtedly have
inventoried it pursuant to routine police procedures and the gun inevitably would have
been found.
       However, “[a] number of courts have recognized that the possibility someone
would have removed or destroyed the evidence at issue undermines a showing of
inevitability.” (People v. Hughston, supra, 168 Cal.App.4th at p. 1073.) In Hughston,
the defendant sold drugs at a music festival from his rented Hummer automobile, which
he had parked at a fairgrounds campsite. He and his friends had enclosed the Hummer in
a tent-like structure, and used the structure as a place to stay during the three-day festival.
(Id. at pp. 1064-1065, 1069.) After an undercover agent observed Hughston make hand-
to-hand drug sales, Hughston was detained and his backpack was searched; upon
discovering drugs therein, the agent arrested Hughston. Officers then located and
searched the Hummer, discovering large quantities of drugs inside. (Id. at pp. 1066-
1067.) The People contended that even if the Hummer was unlawfully searched, the
inevitable discovery exception applied. The appellate court disagreed. There was no
evidence that, absent the search, Hughston’s companions would have abandoned the
Hummer and its illegal cargo. (Id. at pp. 1071, 1073-1074.) Moreover, the People
provided no evidence that Hughston’s companions “would not have gained access to the
interior of the Hummer and removed or destroyed the drugs.” (Id. at p. 1073.)



                                              10
          Similarly, in People v. Bennett, supra, 17 Cal.4th 373, a majority of our Supreme
Court rejected the view of a concurring justice that the inevitable discovery doctrine
applied. Bennett explained: “Justice Brown would resolve this case under the ‘inevitable
discovery’ doctrine [citation], reasoning that police officers would inevitably have
discovered the rifle in petitioner’s motel room regardless of whether their initial seizure
of that room was valid. She acknowledges that such a discovery would not truly have
been inevitable because, absent the seizure, petitioner’s father might have removed the
rifle before the police discovered it; nonetheless, she concludes that the inevitable
discovery doctrine applies because ‘there is no constitutional right to destroy evidence.’
[Citation.] To arrive at this result, however, Justice Brown must sail in uncharted waters.
We do not know of any decision holding that the prosecution may resort to the inevitable
discovery doctrine to prevent suppression of illegally seized evidence when, as here, a
defendant could have caused the removal or destruction of the evidence.” (Id. at p. 392,
fn. 7.)
          As in these cases, discovery of the gun was not inevitable. Had Sergeant Guttilla
not searched the bag, the bag would not necessarily have been taken to the police station,
because appellants’ companion, Colon, could have taken custody of it instead. The
People had the burden of proof on this issue, and they failed to present any evidence
suggesting Colon would have refused to take the bag or would have departed the scene
prior to his companions’ arrest. No evidence suggested that appellants did not wish to
leave Colon with the bag, or any other fact suggesting leaving the bag with Colon was
not an option. We simply do not know what would have happened if the search of the
bag had not occurred. Yet the People had the burden to show, based on demonstrated
historical facts rather than speculation, that the gun would have been discovered by
lawful means. (People v. Boyer (2006) 38 Cal.4th 412, 449; People v. Robles, supra,
23 Cal.4th at pp. 800-801; People v. Hughston, supra, 168 Cal.App.4th at p. 1072.) On
appeal, the People fail to provide authority or persuasive argument supporting their
contention that discovery of the gun was inevitable. They offer only the conclusory
argument that even if Sergeant Guttilla had not inspected the bag, the officers would have

                                              11
taken it for safekeeping and therefore, “even though Colon was released, he would not
have been able to retrieve the bag.” They fail to explain the basis for this conclusion.
       Because the People failed to establish that the gun would inevitably have been
discovered, appellants’ suppression motions should have been granted insofar as they
pertained to the gun.6
                                       DISPOSITION
       The judgments are reversed and the matter is remanded to the superior court. The
court is directed to vacate the no contest pleas if appellants make the appropriate motions
within 30 days after the remittitur issues. In that event, the superior court should reinstate
the original charges contained in the information if the prosecution so moves, and
proceed to trial or other appropriate disposition. If no timely motions to vacate the no
contest pleas are filed by appellants, the court is directed to reinstate the original
judgments.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                   ALDRICH, J.


We concur:




              EDMON, P. J.




              LAVIN, J.

6
       Appellant Murillo does not argue, and has not established, that his statements to
officers or the methamphetamine found in his pocket were the result of an unreasonable
search or seizure. Insofar as his motion to suppress concerned this evidence, it was
properly denied.


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