Filed 11/17/15 P. v. Mendoza CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E061566

v.                                                                       (Super.Ct.No. SWF1208393)

RAUL MENDOZA,                                                            OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Michael J. Rushton,

Judge. Affirmed.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Sean M.

Rodriquez, and Teresa Toreblanca, Deputy Attorneys General, for Plaintiff and

Respondent.

         Michelle Rogers and Lindsey M. Ball, under appointment by the Court of Appeal,

for Defendant and Appellant.



                                                             1
       After the trial court denied his Penal Code section 1538.51 motion to suppress

evidence of a shotgun found during a warrantless search of his home, defendant and

appellant, Raul Mendoza, pled guilty to unlawful possession of a firearm by a convicted

felon (§ 29800, subd. (a)(1); count 1) and admitted one prison prior (§ 667.5, subd. (b))

and one strike prior (§ 667, subd. (e)(1)). After the trial court adjusted for enhancements

and struck the punishment for the prison prior, it sentenced defendant to 2 years 8 months

in state prison.

       Defendant’s plea agreement preserved his right to appeal, and he now seeks

reversal of his conviction on the ground the trial court erred in denying his motion to

suppress by concluding: (i) the warrantless search of his home was justified as

community caretaking; (ii) the warrantless search was justified by exigent circumstances;

and (iii) the deputies who searched his home did not exceed the permissible scope of their

warrantless search. Defendant further contends the manner in which the deputies

conducted the search of his home justifies excluding evidence of the gun.

       We affirm the judgment because the search was justified under the exigent

circumstances exception to the warrant requirement and the deputies found the shotgun in

a search suited to locating a concealed burglar.




       1       All further unlabeled statutory references are to the Penal Code.

                                              2
                                              I

                              FACTUAL BACKGROUND

        At 4:13 p.m. on November 16, 2012, a private alarm company notified the

Riverside County Sheriff’s Department that a security alarm had sounded at defendant’s

home in San Jacinto. The sheriff’s department dispatched a deputy at 4:13 p.m. and he

arrived at the scene at 4:15 p.m. or 4:16 p.m. to investigate. The deputy testified at the

suppression hearing about his investigation and search of the house, which the People

concede occurred without a warrant.

        The deputy began by inspecting the front of the house, where he saw nothing out

of the ordinary. Next, he walked around to the side of the house where a wooden gate led

to the backyard. The wooden gate was open, and some slats were broken “like it had

been forced open.” The deputy went into the backyard, where he found the screen from a

rear window propped against the house and the window itself open approximately one

foot.

        Based on these facts, the deputy concluded “there might be someone inside that

had broke[n] into the house to commit a burglary.” He “radioed for an additional unit to

come and assist so [they] could search the residence for anybody that might be inside.”

He testified his purpose for searching the house was “[n]ot knowing if there was actually

somebody inside committing a burglary or if someone had broke[n] in and hurt

somebody else that was staying at the house.” While he waited for assistance to arrive,

the deputy listened carefully for any cries for help or “any movement coming from inside



                                              3
the residence.” The deputy testified he did not hear any requests for help, indications of

struggle, or noises of furniture being moved.

       When two more deputies arrived, one took up a position in front of the house and

the other helped conduct the search. The deputies announced themselves before entering

the house. They then opened the window wider so they could fit through and climbed

into a bedroom in the back of the house. Once inside, the deputies “checked each room

[they] went into” and “check[ed] the closets or wherever someone might be hiding.” As

they went from room to room, the first deputy testified he continued actively listening for

any noise, but did not hear any shouting for help, crying, struggling, or movement of

furniture.

       After searching the first bedroom and a hallway, they reached the master bedroom

at the front of the house, which they were able to enter without force. When they had

entered the room, they saw nothing of immediate concern. The bedroom contained a bed

made up of a frame, a mattress, and a box spring. The deputies did not see anything

protruding from the bed. The bed had sheets and blankets over the mattress and a bed

skirt. When the deputies “lifted the bed skirt, [they] could tell underneath the bed skirt

was a box spring” as well as additional space between the bottom of the box spring and

the floor. The first deputy testified he had found people hiding under beds in the past.

The second deputy lifted the bed skirt and “look[ed] under the bed and noticed that there

was a shotgun lying underneath the bed.” The first deputy then approached the bed,

kneeled, and looked under the bed. He testified that he “could see the back end of [the

gun] and could tell that it appeared to be the butt end of a gun” though he “didn’t know if

                                              4
it was a real gun at that point or not.” The deputy had a flashlight, but did not remember

whether he used it to illuminate the space under the bed. He took the gun out from under

the bed “to verify if it was, in fact, a real shotgun.”

       The first deputy testified he estimated the gap between the bed frame and the floor

measured six to eight inches. To look under the bed, he testified that he put “one hand

and one knee on the ground and bent down to look underneath” the bed with his head

“parallel to the floor.” The first deputy could not describe the manner in which the

second deputy had initially searched under the bed because at the time he was “covering

the rest of the room” so he could “make sure that no one comes up behind [the second

deputy] while he’s checking something.” When the second deputy announced he saw a

gun, the first deputy looked over and saw that he was kneeling next to the bed.

       An investigator for defendant testified he measured the space between the bed

frame and the ground and found it to be five and a quarter inches. The investigator asked

two members of defendant’s family who were present when he visited the house to try to

crawl under the bed. One was a young man five feet six inches tall who weighed 145

pounds. The other was a child about three and a half years old and three and a half to

four feet tall. Neither person fit under the bed.

       Defendant was subsequently arrested for possession of a firearm as a convicted

felon. He moved to suppress evidence of the gun on the basis that it was obtained during

an unlawful warrantless search. The trial court heard testimony of the first deputy and

defendant’s investigator, and ruled the search legal under the community caretaking and

exigent circumstances exceptions to the warrant requirement. The trial court also ruled

                                                5
the deputies did not exceed the proper scope of the search by looking under the bed for a

concealed person.

       After the court denied his motion to dismiss, defendant conferred with his attorney

and pled guilty the same day to one count of possessing a firearm as a convicted felon.

The trial court sentenced defendant to 2 years 8 months in state prison. Defendant

preserved his appellate rights, and filed a timely notice of appeal.

                                             II

                               STANDARD OF REVIEW

       A trial court considering a motion to suppress under section 1538.5 is “vested with

the power to judge the credibility of the witnesses, resolve any conflicts in the testimony,

weigh the evidence and draw factual inferences in deciding whether a search is

constitutionally unreasonable.” (People v. Woods (1999) 21 Cal.4th 668, 673.)

Accordingly, on appeal, we defer to all factual findings, express or implied, supported by

substantial evidence. (Id. at pp. 673-674.) However, we exercise our independent

judgment in determining the constitutional significance of those findings. (Ibid.)

                                             III

                                      DISCUSSION

       1. Warrantless Entry of Defendant’s Home

       “[P]hysical entry of the home is the chief evil against which the wording of the




                                              6
Fourth Amendment is directed.”2 (Payton v. New York (1980) 445 U.S. 573, 585.) Thus,

“searches and seizures inside a home without a warrant are presumptively unreasonable.”

(Groh v. Ramirez (2004) 540 U.S. 551, 559; accord, Payton v. New York, supra, at p.

586.) Nevertheless, “[b]ecause the Fourth Amendment’s ultimate touchstone is

‘reasonableness,’ the warrant requirement is subject to certain exceptions.” (Brigham

City, Utah v. Stuart (2006) 547 U.S. 398, 403.) “Because the People concede that no

warrant was issued . . . they have the burden to prove the warrantless entries were

justified” by an exception to the warrant requirement. (People v. Duncan (1986) 42

Cal.3d 91, 97 (Duncan); People v. Rogers (2009) 46 Cal.4th 1136, 1156.)

       The People contend the search was justified under the exigent circumstances

exception to the warrant requirement. The trial court agreed. Defendant contends the

trial court erred in ruling exigent circumstances justified the deputies’ warrantless search

because they did not have probable cause to believe a crime was in progress or that entry

was reasonably required to prevent imminent harm to persons or property. We disagree.

       “[W]arrants are generally required to search a person’s home or his person unless

‘the exigencies of the situation’ make the needs of law enforcement so compelling that

the warrantless search is objectively reasonable under the Fourth Amendment.” (Mincey

v. Arizona (1978) 437 U.S. 385, 393-394.) Under this exception, law enforcement

officers may make a warrantless entry into a residence where they have probable cause to


       2      We review challenges to the admissibility of evidence obtained in
government searches under federal constitutional standards. (People v. Troyer (2011) 51
Cal.4th 599, 605; People v. Woods, supra, 21 Cal.4th at p. 673.)

                                             7
believe exigent circumstances exist making entry reasonably necessary “ ‘to prevent

imminent danger to life or serious damage to property . . . .’ ” (Duncan, supra, 42 Cal.3d

at p. 97, quoting People v. Ramey (1976) 16 Cal.3d 263, 276; see also People v. Celis

(2004) 33 Cal.4th 667, 676 [“The United States Supreme Court has indicated that entry

into a home based on exigent circumstances requires probable cause to believe that the

entry is justified”].) Law enforcement officers justify such a search by “point[ing] to

specific and articulable facts from which [they] concluded that [their] action was

necessary.” (Duncan, supra, at p. 98.)

       In evaluating the deputy’s conduct, we undertake “a two-step inquiry: first,

factual questions as to what the officer knew or believed and what action he took in

response; second, a legal question whether that action was reasonable under the

circumstances.” (Duncan, supra, 42 Cal.3d at p. 97.) The People justify the search based

on the fact that the deputy believed a burglary was in progress. Defendant does not

contest that the deputy believed a burglary was in progress or the facts that the deputy

testified to which led him to reach that conclusion.3 Thus, we are left to decide only

whether the deputy’s conclusion that a burglary was in progress and justified a search

was objectively reasonable in view of the specific facts known to the deputy at the time

of the search.




       3      Even if the defendant did contest those facts, the trial court implicitly found
that the deputy believed a burglary was in progress based on the alarm and evidence of a
break-in. That factfinding is supported by substantial evidence and we defer to it.

                                              8
       Courts have repeatedly recognized that warrantless home searches are justified

where law enforcement officers reasonably believe a burglary is in progress. (Duncan,

supra, 42 Cal.3d at p. 98; People v. Bradley (1982) 132 Cal.App.3d 737, 743-744; United

States v. Erickson (9th Cir. 1993) 991 F.2d 529, 532-533; United States v. Singer (8th

Cir. 1982) 687 F.2d 1135, 1144 [upholding warrantless entry of residence where

circumstances indicated burglary in progress]; United States v. Estese (6th Cir. 1973) 479

F.2d 1273, 1274 [upholding warrantless search where police observed signs that

apartment door had been pried open].) As the Bradley court explained, “[t]here is a

strong interest in protecting the public, and here, where appearances strongly indicate an

attempted entry and a burglary in progress, the officers’ subjective belief is not

unreasonable as a matter of law.” (People v. Bradley, supra, at p. 744.)

       The People offer the same justification in this case, and defendant concedes that

“[d]uring the course of a burglary investigation, a warrantless home entry is . . . justified

when the officer has objective facts supporting the reasonable belief the burglary is in

progress.” Thus, the question we face is whether the facts known to the deputy at the

time of the search support an objectively reasonable belief that a burglary was in

progress. (Duncan, supra, 42 Cal.3d at pp. 97-98 [“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.]”].)

       We hold that the deputy articulated specific facts that show he had an objectively

reasonable basis to believe that a burglary was in progress in defendant’s home. Our

                                              9
analysis begins with the fact that the first deputy on the scene was responding to a

security alarm. The sheriff’s department received a call from the alarm company and the

deputy was dispatched at 4:13 p.m. The deputy arrived at defendant’s home within two

or three minutes. Shortly after arriving, he found evidence that someone had broken into

the property. Though nothing was amiss at the front of the house, the gate to the

backyard was open and broken “like it had been forced open.” At the back of the house,

the deputy found evidence that someone had forced entry to the house itself. A screen

had been removed from a window and the window was open. In our judgment, these

facts, taken together, gave the deputy an objectively reasonable basis for concluding a

burglary was in progress. (See People v. Bradley, supra, 132 Cal.App.3d at pp. 743-744

[holding officers reasonably believed a burglary was in progress where a neighbor

reported the resident was away and officers found a glass pane broken out of door and an

open window]; People v. Parra (1973) 30 Cal.App.3d 729, 734 [Fourth Dist., Div. Two]

[holding officers reasonably believed a burglary of a business was in progress where they

found front door open and unlocked after business hours].)

       The facts of this case are quite similar to the facts that led the California Supreme

Court to endorse a warrantless home search in Duncan. There, a neighbor, rather than an

alarm company, notified the police that a burglary may be in progress. (Duncan, supra,

42 Cal.3d at p. 95.) As in this case, the police officer arrived at the scene promptly.

(Ibid.) After finding the doors locked, the officer found a box containing a television set

and other items on the ground outside an open back window. (Id. at pp. 95-96.) He

concluded that a burglary was in progress and perpetrators remained inside. (Id. at p. 96.)

                                             10
He then entered the house to conduct a search. (Ibid.) Once inside, the officer found no

burglars, but did find a narcotics laboratory. (Ibid.)

       Defendant attempts to distinguish Duncan on the basis that the deputy in this case

did not find a box of possibly stolen items lying outside the open window. We do not

find the difference so powerful. The box of goods seemed to show that a burglary had

been committed, but it is not clear whether it better supported the conclusion that the

crime was in progress or that it had been interrupted. In any event, though he did not find

possibly stolen property, the deputy in this case did find affirmative evidence that

someone had made a forced entry on the property. There was no such evidence in

Duncan, and we believe it is strong support for the deputy’s conclusion that a burglary

was in progress. Combined with the burglar alarm and the deputy’s very quick response,

we hold the facts as the deputy understood them at the time were sufficient to justify a

reasonable person to conclude a burglary was in progress.

       Defendant contends the government must show both that a burglary was in

progress and that “the officer’s immediate entry was reasonably required to thwart

imminent danger.” We disagree. The fact that a burglary is in progress may establish on

its own that the officer’s immediate entry was reasonably required. (See Duncan, supra,

42 Cal.3d at pp. 97-98; People v. Lujano (2014) 229 Cal.App.4th 175, 183 [Fourth Dist.,

Div. Two] [“A burglary in progress may constitute an ‘exigent circumstance,’ as that

phrase is used in Fourth Amendment jurisprudence”], italics added.) As the high court

held in Duncan, “[i]t would have been poor police work indeed for an officer to fail to

investigate under circumstances suggesting a crime in progress.” (Duncan, supra, at pp.

                                             11
98-99.) The benchmark is reasonableness, and the People have shown the deputies acted

reasonably in conducting a warrantless search when faced with what they reasonably

believed to be a burglary in progress.4

       2. Scope of Warrantless Search

       Having upheld the propriety of the deputies’ entrance into defendant’s home, we

must now consider whether their search, which turned up a shotgun, was suitably limited

to the purpose of the search. Defendant contends the deputies acted unreasonably by

looking under a bed for concealed suspects. We disagree.

       “[T]he warrantless search of a dwelling must be suitably circumscribed to serve

the exigency which prompted it.” (People v. Hill (1974) 12 Cal.3d 731, 755 overruled on

other grounds by People v. De Vaughn (1977) 18 Cal.3d 889; Mincey v. Arizona, supra,

437 U.S. 385 at p. 393; People v. Troyer, supra, 51 Cal.4th at p. 612.) Here, the same

facts that justified the deputies’ entering the home justified a search of places where an

intruder could be concealed, including under the bed in the master bedroom.

       The deputies conducted the search because they believed that a burglary was in

progress and they entered the house “so [they] could search the residence for anybody




       4       The People contend the unwarranted search was also permissible under a
community caretaking exception to the warrant requirement articulated by a plurality in
People v. Ray (1999) 21 Cal.4th 464, 477 (lead opn. of Brown, J.). The trial court
accepted that justification. Defendant contends the trial court erred because the deputies
did not have a reasonable belief entry was necessary to provide aid to “an injured
occupant [who] is inside the house and needs immediate medical attention.” We do not
reach this issue because the search was justified by exigent circumstances.

                                             12
that might be inside.”5 Before the deputies entered the home, they called out to alert

anyone inside that the police had arrived and were entering. It was therefore reasonable

for the deputies to think anyone who was actively burglarizing the home might have

hidden to avoid arrest. When they entered the master bedroom, the deputies found a bed

with a bed skirt that obscured what lay underneath. The first deputy testified that while

carrying out previous police searches he had found people hiding under beds. It was

therefore reasonable to think that a person inside the house who was committing a

burglary and aware of the police search might attempt to hide underneath the bed in the

master bedroom.

       Defendant contends searching under the bed was unreasonable because there was

not enough room there for a person to hide. In support of this position, he offered the

testimony of an investigator who inspected the scene months later. The investigator

found the space under the bed to be five and a quarter inches high. He then enlisted the

help of a grown man and a child who was three and a half years old to demonstrate that

the space was too small to have been a hiding place. These facts are largely irrelevant.

       The question we must answer is whether the deputies acted reasonably under the

circumstances and with the knowledge they possessed at the time of the search. (See

Duncan, supra, 42 Cal.3d at pp. 97-98.) When the deputies entered the room, the bed

had sheets and blankets over the mattress and a bed skirt covered a box spring and the

       5      The deputy also testified he entered the house to search for anyone who
may have been injured in the course of the suspected burglary, and the People ask us to
affirm on that basis as well. We do not reach that issue because it is not necessary to
resolve the appeal.

                                            13
space beneath the bed. Only by lifting the bed skirt could they see there was a box spring

as well as additional space between the bottom of the box spring and the floor. Thus the

deputies could not see whether anyone was under the bed without bending down to pull

up the skirt, and it was difficult to judge how large a space the bed skirt covered. Indeed,

the photographs taken by defendant’s investigator make it clear the space covered by the

bed skirt could easily have hidden a full grown man. It was under those circumstances

that the second deputy lifted the bed skirt and “look[ed] under the bed and noticed that

there was a shotgun lying underneath the bed.”

       It may be that no one could have fit under the bed in defendant’s master bedroom.

However, we do not require deputies to be correct in the judgments they make while

conducting searches; we require them to be reasonable. (United States v. Estese, supra,

479 F.2d at p. 1274 [“Subsequently facts indicated that [the burglar] had made off with

appellant’s TV before the officers arrived. On their arrival the officers had no way of

knowing this, but there was probable cause for the officers on the scene to believe that a

burglary had been or was being committed and to search the apartment for the burglar”].)

We hold that these deputies were reasonable to conclude they should lift the bed skirt and

check the space under the bed for suspects.

       Defendant also contends the deputies improperly expanded the scope of the search

by kneeling to look under the bed. We disagree. “It has long been settled that objects

falling in the plain view of an officer who has a right to be in the position to have that

view are subject to seizure and may be introduced in evidence.” (Harris v. United States

(1968) 390 U.S. 234, 236; Kentucky v. King (2011) 563 U.S. 452 [131 S. Ct. 1849, 1858]

                                              14
[“[L]aw enforcement officers may seize evidence in plain view, provided that they have

not violated the Fourth Amendment in arriving at the spot from which the observation of

the evidence is made”].) We have concluded the deputy was entitled to lift the bed skirt

and look under the bed. By lifting the bed skirt, he revealed the shotgun. The deputies

therefore lawfully seized the shotgun as being in plain view during the lawful search for a

burglar. (United States v. Estese, supra, 479 F.2d at p. 1274 [“The discovery of the

sawed-off shotgun under the water bed in the course of the search . . . should be regarded

as invoking the plain view doctrine”].)

       Defendant also argues the deputies improperly expanded their search by using a

flashlight to illuminate the gun. However, it is black letter law that police may use a

flashlight to see what would be in plain sight if not for a lack of ambient light. (E.g.,

United States v. Dunn (1987) 480 U.S. 294, 305 [“[T]he officers’ use of the beam of a

flashlight, directed through the essentially open front of respondent’s barn, did not

transform their observations into an unreasonable search within the meaning of Fourth

Amendment”]; People v. Chavez (2008) 161 Cal.App.4th 1493, 1501 [“It is well

established law that the observation of that which is in the plain sight of an officer

standing in a place where he has a lawful right to be does not constitute a search and such

observation is lawful regardless of whether the illumination permitting the observation is

natural light, artificial light, or light from a flashlight held by the officer viewing the

object in question”].)

       Once one deputy spotted the shotgun, the deputies were entitled for their own

safety and the safety of anyone else in the house to investigate further and secure the

                                               15
weapon. (People v. Gallegos (2002) 96 Cal.App.4th 612, 628, fn. 13.) It was therefore

proper for the deputies to confirm the object was a shotgun and secure it. Those actions

were reasonable, and did not improperly expand the initial search.

       Defendant contends the Court of Appeal decision in People v. Lovelace (1981)

116 Cal.App.3d 541 supports his position that the deputies in this case improperly

expanded the scope of their search. We disagree. In Lovelace, the Court of Appeal held

that officers found evidence the defendant was growing marijuana only by standing in an

alley and peering through gaps and knotholes in defendant’s privacy fence. The court

held that the defendant had a subjective expectation of privacy that was objectively

reasonable and that the officer “viewed the marijuana plants from a vantage point not

expected to be used by the public.” (Id. at pp. 548, 554.) The problem with the search in

Lovelace was that the officer’s vantage point “did not meet the constitutional standard of

reasonableness.” (Id. at p. 554.) In this case, the deputies were searching for an intruder

they thought may be concealed in the house. They reasonably concluded they should

look under a bed in conducting their search. Their vantage point in kneeling next to the

bed was therefore reasonably designed to accomplish this permissible goal.

       Accordingly, we uphold the trial court’s ruling that the search was lawful.6




       6      Defendant contends we should apply the exclusionary rule and suppress the
gun evidence deputies obtained in the search. (See Davis v. United States (2011) __ U.S.
__ [131 S. Ct. 2419, 2426].) However, the exclusionary rule does not apply because we
conclude the search was lawful and did not violate defendant’s Fourth Amendment
rights.

                                            16
                                   IV

                               DISPOSITION

     We affirm the judgment.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                               RAMIREZ
                                                         P. J.

We concur:


HOLLENHORST
                      J.


CODRINGTON
                      J.




                                   17
