Filed 1/4/16 P. v. Gabor CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT


THE PEOPLE,                                                          B258468

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA089335)
         v.

HESHAM MAHER GABOR,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael D. Carter, Judge. Reversed.


         Brentford J. Ferreira for Defendant and Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.


                                   _______________________________
       A jury convicted Hesham Gabor of felony resisting an executive officer by
violence (count 1; Pen. Code, § 69)1 and misdemeanor resisting, delaying or obstructing a
peace officer (count 2; § 148, subd. (a)(1)). Both counts arose from events that transpired
inside Gabor’s home. We reverse the judgment because a series of rulings by the trial
court resulted in a failure to properly instruct the jury on a common element of the
charged offenses, namely, that the police officer was “performing his lawful duty” (§ 69)
at the time of the resisting conduct, and that the police officer was “lawfully performing
. . . his duties” (§ 148, subd. (a)(1)) at the time of the resisting conduct. This failure
prevented the jury from deciding this element of the case.
                                           FACTS
       On Sunday, March 17, 2013, at about noon, Pasadena Police Department (PPD)
Officer Eric Butler drove to Wallis Street after a citizen approached him while he was
parked in his patrol car and told him she had seen a young boy, approximately six years
old, who seemed to need help. On arriving at the scene, Officer Butler saw a boy
matching the citizen’s report sitting on a retaining wall in front of a town home. The boy
turned out to be Gabor’s then 10-year-old son, Andrew.
       Officer Butler parked his police car, walked toward Andrew, and asked if he
needed help. Andrew replied, “Yes.” He appeared to be shaking and crying. Andrew
stated that his parents had locked him out of the house. When Officer Butler asked why
his parents did that, Andrew responded that he did not know. As he was talking to
Andrew, Officer Butler saw another child, who turned out to be Andrew’s then seven-
year-old brother, Paul, looking out a window next to the front door.
       Officer Butler asked Paul to open the door, and Paul complied. Andrew then
entered the home and Officer Butler followed him into an entrance area by the front door
threshold. Officer Butler asked Paul if he had heard his brother banging on the front
door. Paul answered that he heard, but did not open the door because his father told him
not to. When Officer Butler asked the children about their father’s whereabouts, Paul


1
       All further undesignated section references are to the Penal Code.

                                              2
indicated their father was taking a shower. Officer Butler asked Paul to go get him.
Paul left and returned a few moments later. When the children’s father did not come out
promptly, Officer Butler asked Paul to go a second time and let his father know that a
police officer was at the door. Paul left and returned again, but the father still did not
come to the front door area. At this point, Officer Butler asked Paul if his father was
okay, and Paul answered, “Yeah, he’s fine.” Officer Butler asked the question about the
father’s well-being because Officer Butler “wasn’t sure if [the father] fell, if there was an
accident . . . [or] if he were on medication.” Officer Butler asked Paul a third time to get
his father, and Gabor then entered the living room.
       Officer Butler introduced himself as a police officer, and asked Gabor who he
was, but Gabor did not answer. He appeared to be angry. Officer Butler explained that
Andrew was locked outside and someone heard him banging on the door and yelling to
be let inside. Gabor said he had been in the shower, and acknowledged he had known his
son was outside. When Officer Butler asked Gabor why he had not done anything about
his son being outside, Gabor answered, “Go ask his mother and get out of my house.”
       Rather than departing the house as directed, Officer Butler told Gabor that leaving
his son outside appeared to be neglectful, to which Gabor replied, “No, it’s not. Get out
of my house.” Officer Butler, in turn, asked Gabor why he was angry, and Gabor
answered, “I’m angry because you are in my house. Now get out of my house.” Gabor
then stepped into the kitchen for a few seconds and returned holding an object behind his
leg.2 Officer Butler became concerned for his safety asked Gabor to step outside of the
house to talk. Gabor refused and told the officer, “Whatever you need to say, you can say
it right here.” When Gabor went into the kitchen again, Officer Butler said, “Can you
please not leave. I need to speak with you.” Gabor returned with his hands in his
pockets. Officer Butler again told Gabor that leaving his son outside was neglectful, and,
again, asked Gabor to step outside to talk. Again, Gabor declined.




2
       The object turned out to be a phone.

                                              3
       Gabor then kicked Andrew’s foot, and told him, “You see how they are? This is
what they do.” Officer Butler felt uncomfortable because of Gabor’s conduct. He called
for backup and activated a tape recorder device he had with him.3 Andrew then asked
Officer Butler to leave. When Officer Butler asked Andrew why, Andrew stated that he
was afraid because Officer Butler had a gun and “shoots people.”
       Meanwhile, the front door was still open. Gabor walked to the door and shut it.
Officer Butler reopened the door and told Gabor it had to remain open because his
partner was arriving. Gabor closed the door a second time after stating he had allergies.
       At this point, Officer Butler, in his own words, “pushed” Gabor against the wall
and repeated his command that the door must remain open. The two started “jostling”
over closing and opening the door. After about the fourth time the door was closed and
opened, Officer Butler grabbed Gabor’s wrist and ordered him to place both hands behind
his back. Gabor refused to comply and, instead, clutched his hands together and dropped
down. Officer Butler could not pull Gabor’s hands behind his back. Gabor refused to
comply with the officer’s repeated commands that he “surrender.” Officer Butler
grabbed Gabor’s head and steered him away from the wall. Officer Butler positioned
himself behind Gabor and “forced” him to the ground. Gabor started using his legs to
push off the wall. During the ensuing struggle, Gabor clasped his hands together and
refused to lie flat on the ground and put his hands behind his back. Officer Butler was
unable to gain control of Gabor’s hands. Gabor told Andrew to call 911 and say that a
police officer was choking him. Gabor told Officer Butler, “Look what a good example
you are. You are showing what the police are doing.” Gabor tried to hit Officer Butler
with a phone, but Officer Butler knocked the phone out of Gabor’s hands. Officer Butler
“applied pressure points” to Gabor’s body to force compliance, but none of them worked.
Officer Butler maintained his position on top of Gabor and waited for backup to arrive.




3
       The recording was played for the jury. We have listened to the tape recording.

                                            4
         A few minutes later, PPD Corporal Jayce Ward, one of Officer Butler’s superiors,
arrived at the Gabor home. Corporal Ward saw Officer Butler pulling on Gabor’s arm
and ordering him to give it up. Corporal Ward placed his knee on Gabor’s back and
grabbed his other arm. Gabor ignored both officers’ repeated commands to release his
hands.
         Eventually, Corporal Ward tried to squeeze Gabor’s trapezius muscle to force him
to give up. Gabor started to rock back and forth more aggressively until Corporal Ward
lost his balance. Corporal Ward straddled Gabor’s shoulders with his knees to limit
Gabor’s movements. After several failed attempts to pull Gabor’s hands from underneath
him, Corporal Ward ordered Officer Butler to use his taser as a “drive stun,” a technique
that applies an electric shock to the area the taser directly touches on a body. After
giving Gabor a warning that he ignored, Officer Butler applied a stun to Gabor’s leg,
which forced Gabor to release one of his hands. Corporal Ward told Gabor he would be
stunned again unless he gave up his other hand. When Gabor refused, Officer Butler
applied a second stun that caused Gabor to release his other hand. At that point, the
officers were able to handcuff Gabor. As the officers escorted Gabor to a patrol car, he
jerked his shoulders back and forth in an attempt to break free.
         During his testimony on direct examination, Officer Butler explained why he
entered the Gabor home by describing his understanding of the situation as it existed at
the time of the entry. His specific explanation was as follows:
                “[I entered the home s]o I can actually see get a better view of what
         was going on and if I had stayed outside whomever was in the house could
         have easily closed the door and that would have been it. I wouldn’t –– I
         didn’t have enough, for example exigency to enter the home. I didn’t have
         consent, really. So, if whomever would shut the door, then I would have to
         go through different channels to try to further the investigation.”
On numerous occasions during his testimony, Officer Butler indicated he entered the
home to investigate a possible child endangerment situation.



                                               5
       Gabor testified in his own defense. He explained his wife and Andrew left in the
morning to go to their other house that was being remodeled at the time. He locked the
door after they left and went to take a shower. A short time later, Paul came inside and
informed him that a police officer was inside the house. According to Gabor, the
physical events between him and Officer Butler began when Gabor asked the officer to
close the front door because of his allergies.4 Officer Butler said he wanted the door
open because his partner was about to arrive. Gabor said they could open the door once
his partner arrived and went to close the door. As Gabor placed his hand on the door to
close it, Officer Butler told Gabor the door needed to remain open, then suddenly pushed
Gabor against the wall. Officer Butler grabbed Gabor by the neck and began choking
him. Gabor feared for his life. Officer Butler took Gabor to the ground and forced
himself on top of Gabor’s body. Gabor could not remember much of what happened
afterwards, except for a vague recollection of being tased.
       The People filed an information charging Gabor with felony resisting an executive
officer (count 1; § 69) and misdemeanor resisting a peace officer (count 3; § 148, subd.
(a)(1)). The information initially included a count alleging child endangerment (count 2;
§ 273a, subd. (b)), but that count was dismissed before trial. The case was tried to a jury,
at which time the prosecution presented evidence establishing the facts summarized
above, primarily through the testimony of Officer Butler and Corporal Ward.
       The jury returned verdicts finding Gabor guilty on both counts. The trial court
placed Gabor on three years’ formal probation, with terms and conditions, including an
order that he attend anger management and parenting classes.




4
      Another defense witness testified that Gabor suffered from long-term allergy
problems.

                                             6
                                      DISCUSSION
I.     The Trial Court Erred in Foreclosing Questioning, Argument, and Jury
       Instruction on the Lawfulness of the Police Officer’s Entry and Stay in the
       Family Home
       Gabor contends his convictions must be reversed because the trial court erred in
refusing to allow his counsel to question witnesses on the subject of whether Officer
Butler’s entry and stay in the family home was unlawful, refusing to allow argument on
the subject, and failing to give complete instructions applicable to the subject. The
parties agree that to convict the defendant of the offenses charged in this case, the People
were required to prove that Officer Butler was in the performance of his duty at the time
and that his actions were lawful. They further agree that, because Gabor was arrested
inside his home, it was the People’s burden to show the officer’s entry into and stay in the
home comported with the Fourth Amendment. Gabor contends the prosecution should
have been limited to justifying the warrantless entry into his home based on the exigent
circumstances exception, and that the jury should have been instructed accordingly. As a
fall-back position, he argues that to the extent the prosecution was permitted to justify the
entry into his home based on the so-called “community caretaking” exception to the
warrant requirement, the trial court’s instructions were inadequate in that they failed to
explain the exception for the jury. The People accept the general principle that the officer
had to have an antecedent right to be in Gabor’s home which comports with the Fourth
Amendment for Officer Butler to be lawfully performing his duties. The People do not
assert the exigent circumstances exception is applicable and the prosecution never offered
that exception as a justification for entry into Gabor’s home at trial. Instead, the People
argue the community caretaking exception to the Fourth Amendment justified the
warrantless entry and stay in Gabor’s home.
       Because the trial court itself determined the officer’s entry and stay in the house
was lawful, and that this was not an issue for the jury to determine, and because the court
refused to instruct the jury on the issue of lawful entry and restricted questioning and
argument on the issue, we agree with Gabor that the trial court prejudicially erred.

                                              7
Background
       After the last witness testified, Gabor’s counsel moved for entry of a judgment of
acquittal pursuant to section 1118.1 on the ground that the evidence did not establish
Officer Butler had “lawfully” entered the Gabor home, and thus, did not establish he had
been lawfully discharging a duty of his office.5 Gabor’s counsel argued that the
prosecution failed to prove the element that Officer Butler had been lawfully performing
his duty at the time of the resisting conduct because the prosecution failed to present
evidence which would support either of two possible exceptions to the Fourth
Amendment’s warrant requirement for entry into a residence, namely, the exigent
circumstances or the community caretaking exceptions. The court denied the motion,
finding that “a reasonable jury could find [Gabor] guilty on these facts . . . .”6 Reading
the court’s ruling in the context of the 1118.1 motion, as well as ensuing matters, we
understand that the court denied the 1118.1 motion upon finding there was sufficient
evidence to support application of the community caretaking exception to the Fourth
Amendment’s warrant requirement.
       Immediately after the 1118.1 ruling, the court raised another issue that it wanted to
discuss with the lawyers: “My concern is how we approach this ‘in-the-house doctrine’
because I’m afraid that it may be confusing to the jury, and I want to make sure that the
arguments don’t further confuse the topic . . . .” During the ensuing exchanges, the court
and the lawyers discussed what role the jury should play in determining whether Officer
Butler had lawfully entered and or remained in the Gabor home. Gabor’s counsel argued
that the court should not “direct a verdict on a particular issue,” and “should
instruct . . . on the community caretaking exception” to the Fourth Amendment’s
requirement that a police officer needs a warrant to enter a person’s home. Gabor’s

5
       Gabor’s counsel cited several cases addressing when a police officer may lawfully
enter a person’s home without a warrant as the entry concerns the lawfulness of a search,
but no cases directly addressing the elements of a charge under section 69 or section 148,
subdivision (a)(1).
6
       The trial court’s ruling on the 1118.1 motion is not challenged on appeal.

                                              8
counsel additionally contended the defense was “entitled to make an argument along the
following lines: ‘[T]he judge has instructed you on the law of the community caretaking
exception. Whether or not that was applied in a reasonable manner in this particular case
is for you to decide. If you decide that the officer’s conduct was unreasonable in
invoking that standard, you should find the defendant not guilty.’ ” The court responded
that it was not as concerned about giving an instruction on the community caretaking
exception as it was about counsel arguing to the jurors that it was their role to decide
whether Officer Butler had entered the Gabor house lawfully or unlawfully.
       After a series of further exchanges, the trial court ruled: “I find that [the officer]
was there lawfully. I believe that he was conducting his community care function with a
seven-year-old and a 10-year-old to determine whether or not they had a parent there at
the house. . . .” Following another series of exchanges, the court reiterated its ruling:
“In the court’s determination, the officer was in the location lawfully.” The court then
explained to Gabor’s counsel the scope of his permissible argument: “Whether or not
[the officer’s] actions were reasonable is a different story. . . . His actions you can talk
about, but you cannot talk about the location . . . . If he did something that was
unreasonable, which is what the law is talking about, were the officer’s actions in making
the arrest unreasonable.” The court’s ruling prompted Gabor’s counsel to move for a
mistrial, which the court denied.
       The discussions then continued, with the trial court once more restating its ruling:
“I’ve heard the evidence and I determined –– I am using the standard set forth in the
[cases addressing the] community caretaking [exception] –– that I believe that the officer
was at the location lawfully. Now the question is how do I modify the instruction?”
The court then asked whether the parties agreed that it could instruct the jurors that the
court had determined the officer was at the location lawfully. Gabor’s counsel
responded: “I am going to ask the court not to instruct on that because that is a finding.”
The prosecutor agreed with Gabor’s counsel. Ultimately, the court stated the instructions
would inform the jury only that a community caretaking function was one of Officer
Butler’s duties. When Gabor’s counsel asked whether the court would define the

                                               9
community caretaking function, the court replied: “No, I’m not going to go in and try to
define what it is. Because if I try to define what it is, then I am inviting them to make an
analysis on it. I think that what they are supposed to be looking at is the function of the
arrest because that is what the 148 is, did [the defendant] obstruct or resist or delay the
officer in his duty. And then when the officer was making the arrest, did [the defendant]
resist by force.”
       At the close of trial, the trial court instructed the jury with CALCRIM No. 2652 ––
defining the elements of felony resisting an executive officer in the performance of the
officer’s duty in violation of section 69; CALCRIM No. 2656 –– setting out the elements
of misdemeanor resisting a peace officer in violation of section 148, subdivision (a); and
CALCRIM No. 2670 –– defining the lawful performance of duties by a peace officer.
In connection with both CALCRIM No. 2652 and CALCRIM No. 2656, the court
instructed the jury as follows:
              “The duties of a Pasadena police officer include investigating
       possible criminal activity, detaining persons that they have a reasonable
       suspicion have committed criminal offenses, and arresting an individual
       when probable cause exists. Amongst those duties is the community
       caretaking function.
              “A peace officer is not lawfully performing his or her duties if he or
       she is unlawfully arresting or detaining someone or using unreasonable or
       excessive force in his or her duties. Instruction 2670 explains when an
       arrest or detention is unlawful or when force is unreasonable or excessive.”
Applicable Legal Principles
       A trial court is required to instruct on general principles of law that are applicable
to the facts shown by the evidence and that are necessary for the jury’s understanding of
the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) Because the prosecution has
the burden of proving beyond a reasonable doubt each element of a charged offense, an
instructional error which relieves the prosecution of its burden violates the defendant’s
constitutional right to due process. (People v. Cole (2004) 33 Cal.4th 1158, 1208.)

                                              10
Further, a trial court must instruct on defenses that are consistent with the evidence.
(People v. Montoya, supra, 7 Cal.4th at p. 1047.)
       Under the statutory language of section 69, the prosecution must prove as an
element of the offense that a police officer was “performing his lawful duty” at the time
of a defendant’s resisting conduct, and, under the statutory language of section 148,
subdivision (a)(1), the prosecution must prove as an element of the offense that the police
officer was “lawfully performing . . . his duties” at the time of the defendant’s resisting
conduct. Under “longstanding” case authority, a defendant cannot be convicted of an
offense against a peace officer engaged in the performance of his or her duties “unless the
officer was acting lawfully at the time the offense against the officer was committed.”
(In re Manuel G. (1997) 16 Cal.4th 805, 815.) This rule “flows from the premise that
because an officer has no duty to take illegal action, he or she is not engaged in ‘duties,’
for purposes of an offense defined in such terms, if the officer’s conduct is unlawful.
[Citations.]” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217.)
       The United States Supreme Court first used the term “community caretaking”
in Cady v. Dombrowski (1973) 413 U.S. 433 (Cady) to justify a warrantless search of an
automobile. There, a driver was involved in an accident and police towed the car to a
private garage. The officers had reason to believe a firearm could be in the trunk. (Id. at
pp. 436-437.) The events occurred in a rural area. After the car was dropped off, the
police searched the trunk and found a revolver which was later connected to a murder.
The Supreme Court ruled that the warrantless search of the trunk of the towed car was
lawful because of safety concerns for the general public who might be endangered in the
event an intruder out in the remote area removed a gun from the trunk of the vehicle.
(Id. at p. 447.) The result may have been different in a metropolitan area, the high court
suggested, where a police officer could have been posted near the vehicle. (Ibid.)
The Court noted that officers often must “engage in what, for want of a better term, may
be described as community caretaking functions, totally divorced from the detection,
investigation, or acquisition of evidence relating to the violation of a criminal statute.”
(Id. at p. 441.)

                                              11
       The community caretaking function has also been discussed by the high court in
South Dakota v. Opperman (1976) 428 U.S. 364 (Opperman), and Colorado v. Bertine
(1987) 479 U.S. 367, both of which involved searches of automobiles. The federal courts
of appeals construing Cady have struggled to reach a consensus on its scope. (See
discussion in Ray v. Township of Warren (3d Cir. 2010) 626 F.3d 170 [lawsuit for
violation of civil rights pursuant to 28 U.S.C. § 1983 based on alleged unconstitutional
search].) The majority of the courts of appeals have concluded that Cady’s community
caretaking exception to the Fourth Amendment cannot be invoked to justify a warrantless
entry into a person’s home. (Ray v. Township of Warren, supra, at pp. 175-177.) Some
of the cases have ruled that the community caretaking exception to the Fourth
Amendment’s warrant requirement are limited to automobile searches. In the evidence
suppression context, state courts have also reached mixed conclusions as to whether
Cady’s community caretaking exception to the Fourth Amendment can be invoked to
justify a warrantless entry into a person’s home. (See, e.g., and compare State v. Deneui
(S.D. 2009) 775 N.W.2d 221 [community caretaking exception justified warrantless entry
into a defendant’s residence where police had concerns that someone inside might be in
jeopardy from ammonia fumes]; and State v. Vargas (N.J. 2013) 63 A.3d 175 [a
warrantless search of a person’s residence cannot be justified in the name of community
caretaking in the absence of some form of exigent or emergency circumstances].)
       The California Supreme Court discussed the community caretaking function of
police work in People v. Ray (1999) 21 Cal.4th 464, 477 (Ray), a plurality opinion
addressing whether the function operates as an exception to the warrant requirement for
entry into a private home. In Ray, police answered a radio call reporting an apartment
unit with the front door ajar. When the officers looked inside, it appeared the apartment
had been ransacked. No one responded to the officers’ calls into the home. The officers
believed they had either stumbled onto a burglary in process or that there may have been
an unresponsive victim of a burglary inside. Upon entering the premises, the officers saw
“a large quantity of suspected cocaine and money in plain view.” (Id. at p. 468.)



                                            12
       Six justices voted to affirm the case and approve the search, but they split on
which theory supported affirmance. Three justices in the lead opinion distinguished two
exceptions to the warrant requirement – the exigent circumstances exception and the
community caretaking exception. The lead opinion observed that police have a myriad
of duties unrelated to criminal investigation, which are collectively referred to as
“community caretaking functions.” (Ray, supra, 21 Cal.4th at pp. 472, 467.) The
exception allows an entry into a private home based on circumstances short of a
perceived emergency for two reasons: to protect a person or property from harm. (Id. at
p. 473.) In other words, the officers view the occupant as a potential victim rather than as
a potential target of an investigation or as a potential suspect. (Id. at p. 471.) Application
of the community caretaking exception must be considered in a case-by-case basis,
considering “ ‘whether there is “evidence which would lead a prudent and reasonable
official to see a need to act.” The officer must “be able to point to specific and
articulable facts which, taken with rational inferences from those facts, reasonably
warrant that intrusion.” [Citations.]’ ” (Id. at p. 476.) Further, “‘[t]he privilege to enter
to render aid does not . . . justify a search of the premises for other purposes. [Citation.]
To the contrary, the warrantless search of a dwelling must be suitably circumscribed to
serve the exigency which prompted it. [Citations.]’ [Citation.] ‘The officer’s post-entry
conduct must be carefully limited to achieving the objective which justified the entry—
the officer may do no more than is reasonably necessary to ascertain whether someone is
in need of assistance . . . and to provide that assistance . . . .’ ” (Id. at p. 477.) The lead
opinion in Ray emphasized that application of the community caretaking exception is
permitted only when officers are not engaged in searching for evidence or perpetrators of
a crime because “‘[t]he defining characteristic of community caretaking functions is that
they are totally unrelated to the criminal investigation duties of the police.’” (Id. at
p.471.)
       Former Chief Justice George wrote the concurring opinion, with which two other
justices joined, and found the warrantless entry into the residence proper. However, the
concurring opinion applied the long-recognized “exigent circumstances” exception to the

                                               13
warrant requirement to justify the warrantless entry. (Ray, supra, 21 Cal.4th at pp. 480-
482.)7 The only other case cited by the People which refers to the community caretaking
function involved a search of a car. (People v. Madrid (2008) 168 Cal.App.4th 1050.)
Analysis
       Gabor contends the trial court’s refusal to allow him to question witnesses, argue
to the jury, or properly instruct on the lawfulness of the officer’s entry into the home was
error. He asserts this error foreclosed him from presenting his defense that the jury
should find Officer Butler acted unlawfully when he entered and stayed in the Gabor
home and thus he was not lawfully performing his duties. We agree.
       It appears to us that the question of whether the community caretaking exception
justifies a warrantless entry into a private residence is the source of confusion for many
courts. Gabor has not asked us to rule categorically that the exception does not apply to
police entry into a person’s home. Here, we note only it is well-recognized that a
person’s expectation of privacy in an automobile is vastly different from the traditional
expectation of privacy that attaches to one’s residence. (United States v. Martinez-Fuerte
(1976) 428 U.S. 543, 561 [automobiles, unlike homes, are subjected to pervasive and
continuing governmental regulation and controls]; Opperman, supra, 428 U.S. at p. 368;
see also New York v. Class (1986) 475 U.S. 106, 113 [“[A]utomobiles are justifiably the
subject of pervasive regulation by the State”]; Cardwell v. Lewis (1974) 417 U.S. 583,
590 [“One has a lesser expectation of privacy in a motor vehicle because its function is
transportation and it seldom serves as one’s residence or as the repository of personal
effects”].) Thus, to the extent the community caretaking exception is applicable in
Gabor’s case as a basis for the prosecution’s justification of the entry into his home, that
is, that the exception supports a factual finding that Officer Butler was acting lawfully
when he entered the home, an error occurred when the trial court failed to properly
instruct on its definition and also failed to allow appropriate questioning and argument on
the topic.

7
       Justice Mosk, the seventh justice, dissented.


                                             14
       The court ruled that it was the court’s role to determine whether Officer Butler had
been lawfully present inside the Gabor home. It refused to allow the defense to argue the
propriety of the entry, or the appropriateness of continuing to remain in the house after
being asked to leave. This ruling removed from the jury the task of deciding whether the
prosecution had proved an element of both charged offenses; specifically, that Officer
Butler was lawfully performing his duties when he entered the home and at the time of
Gabor’s resisting conduct. The trial court was not presented with a motion to suppress
evidence in which it would have been the court’s task to determine the lawfulness of a
search.
       Contrary to the People’s arguments on appeal, the trial court needed to define the
community caretaking exception to the warrant requirement in order for the jury to
determine whether the prosecution proved the element of the charged offenses that
Officer Butler was lawfully performing his duty at the time of the resisting conduct.
The jury needed to understand that a police officer may lawfully enter a person’s home
only under certain circumstances. The court should have defined the community
caretaking exception for the jury, explaining that its application is permitted only when
officers are not engaged in searching for evidence or perpetrators of a crime. (Ray,
supra, 21 Cal.4th at p. 471.) The jury should have been allowed to decide whether the
police officer’s conduct in the home was “ ‘carefully limited to achieving the objective
which justified the entry,’ ” given that “ ‘the officer may do no more than is reasonably
necessary to ascertain whether someone is in need of assistance and to provide that
assistance.’ ” (Id. at p. 477.)
       Most significantly here, the jury should have been informed that “‘[t]he defining
characteristic of community caretaking functions is that they are totally unrelated to the
criminal investigation duties of the police.’” (Ray, supra, at p. 471.) The defense
contended the officer entered the home to investigate a possible child endangerment
situation. Officer Butler repeatedly told the jury he entered the house to conduct an
investigation and specifically to investigate a possible child neglect offense. Indeed,
Gabor was initially charged with child endangerment.

                                             15
       A properly instructed jury may have considered Officer Butler’s testimony about
what he was doing to determine if his actions were lawful. If properly instructed and
allowed to hear all the evidence and argument on the issue, a jury might have found the
officer’s entry unlawful or his continued presence in the home was unlawful after
Andrew was safely inside and Officer Butler was repeatedly directed to leave. The jury
might also have found that the officer did more than was reasonably necessary to
determine whether assistance was needed and to provide such assistance.
       Simply putting the words “community caretaking” in the instruction as one of the
duties of police officers did not guide the jury in determining whether the community
caretaking exception applied and could be followed in this case. A bracketed portion of
CALCRIM No. 2670, the standard instruction dealing with a police officer’s “lawful
performance of his or her duties,” instructs a jury to determine whether police lawfully
entered a home without a warrant for the purpose of arresting a person in the context of
exigent circumstances, and defines exigent circumstances as follows:
       “The term exigent circumstances describes an emergency situation that
       requires swift action to prevent (1) imminent danger to life or serious
       damage to property, or (2) the imminent escape of a suspect or destruction
       of evidence.”
       This instruction could have been modified for use in Gabor’s case to define the
community caretaking exception. By relieving the prosecution of its burden of proving
an element of the charged offenses, the trial court violated Gabor’s constitutional right to
due process. (People v. Cole, supra, 33 Cal.4th at p. 1208.)
       Gabor’s case falls under the ambit of People v. Wilkins (1993) 14 Cal.App.4th 761
(Wilkins). In Wilkins, police responded to a residence to investigate a domestic violence
report. When police arrived, they saw a woman outside the residence, crying and with
red marks on her face and nose. She reported that the defendant, her husband, had hit
her. She then asked the officers to go inside the residence to arrest him. The officers
knocked on the door to the residence and told the defendant they needed to come inside
and talk to him. The defendant opened the door, but refused to allow more than one

                                             16
officer to enter. When the defendant attempted to close the door, an officer blocked the
door with his foot and hand, forced the door open, and a struggle ensued inside the
residence between the defendant and the officers that ended with the defendant’s arrest.
(Id. at pp. 767-768.)
       Based on evidence presented at trial establishing the facts summarized above, a
jury convicted the defendant of spousal abuse and resisting a police officer. (Wilkins,
supra, 14 Cal.App.4th at p. 769.) As to the resisting count, the Court of Appeal held the
trial court erred in failing to instruct the jury sua sponte on the exigent circumstances
exception to the Fourth Amendment’s warrant requirement in connection with section
69’s “lawful performance of duty” element, but found that the instructional error was
harmless. (Id. at pp. 776-777.) As the court reasoned: “In order for the officers to have
effected a lawful non-consensual entry into the house to make a warrantless arrest, they
must not only have had reasonable cause to believe defendant had committed a felony but
there must also have been exigent circumstances justifying the officers’ immediate entry
without obtaining a warrant. [Citation.] The instructional lacuna is not one which can be
cured simply by clarification and amplification because the instructions given completely
omit to address a material constituent of an element necessary for conviction.
[Citation.]” (Id. at p. 777.)
       Further, in holding that the trial court had a duty sua sponte to instruct on exigent
circumstances as a basis for lawful entry into the defendant’s house, the Wilkins court
explained: “Where, as here, there was no warrant, and, assuming there was no consent to
enter, the arrest of defendant in his home was ‘presumptively unreasonable.’ [Citation.]
. . . Thus, lawfulness of this felony arrest inside the home turns not only on reasonable
cause [for the arrest,] but also on exigent circumstances and, because lawfulness of the
arrest is an element of the offense charged, both issues [were required to be] submitted to
the jury.” (Wilkins, supra, 14 Cal.App.4th at p. 779, fns. omitted.)
       The People argue that Wilkins “is distinguishable in three significant ways,” none
of which we find persuasive. First, the People argue Gabor’s current case is not the same
as Wilkins because the defendant there refused to allow the police officers to enter his

                                             17
home and the officers used force to enter the home. In Gabor’s current case, the issue is
not whether Officer Butler used force to enter Gabor’s home, but whether he entered the
Gabor home lawfully or unlawfully, for whatever reason. Second, the People argue that,
while the instructions in Wilkins were devoid of any content regarding an exception to the
Fourth Amendment’s warrant requirement, the instructions in Gabor’s case referred to the
community caretaking function. The problem with this argument is that the court’s
instructional reference to the community caretaking function was left hanging in the air,
with no instruction on how to consider or apply its principles, and with no instruction
explaining that it was an exception to the Fourth Amendment’s requirement for a warrant.
As for the People’s argument that Wilkins is limited to the issue of exigent circumstances,
while this is technically true, it does not address the problem that the jury at Gabor’s trial
was effectively precluded from deciding whether the prosecution proved beyond a
reasonable doubt an element of the charged offenses under sections 69 and 148.8
       We find the reasoning of Wilkins equally applicable in Gabor’s case, which
involved something less than an attempted entry to effect an arrest, namely, an entry
apparently for purposes of conducting some form of investigation as to why a 10-year-old
child was outside his home at noon on a Sunday. The jury should have been afforded the
opportunity to decide whether Officer Butler acted lawfully in entering and in remaining
in the Gabor home, particularly in light of his testimony that he understood that, “had
[he] stayed outside whomever was in the house could have easily closed the door and that
would have been it. [He] didn’t have enough, for example, exigency, to enter the home.
[He] didn’t have consent, really.”




8
        We do not rule here as a matter of law that Officer Butler’s entry into the Gabor
home violated the constitutional protections afforded to a person in his or her own home
or that Officer Butler was not lawfully performing his duties when he stepped over the
threshold into Gabor’s home. What we conclude is this was a question for the jury to
decide, in determining whether the prosecution proved the elements of the section 69 and
148 offenses beyond a reasonable doubt.

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        Gabor’s case is not like Ray, supra, 21 Cal.4th 464, and other cases that are
discussed in the respondent’s brief on appeal. In Ray, a citizen reported to the police that
an apartment door had been open all day, and “it’s all a shambles inside.” Officers
arrived at the scene and approached the front door, which was about two feet open.
The officers looked inside and noticed that the front room appeared to have been
ransacked. After knocking and announcing their presence, and after receiving no
response, the officers entered the premises to determine if anyone was injured and
whether a burglary was in progress. Upon entering the premises, the officers observed
suspected cocaine and money in plain view. (Id. at p. 468.) The People subsequently
filed drug charges against the tenant. (Id. at p. 469.)
        The tenant/defendant filed a motion to suppress the drug evidence. (Ray, supra,
21 Cal.4th at p. 468.) The trial court granted the motion, finding that the officers had
been engaged in a community caretaking function, but that no exigent circumstances
justified entry into the defendant’s apartment without a warrant. The People appealed,
and the Court of Appeal reversed the trial court based on a finding that the officers
reasonably believed that an exigency existed. On the defendant’s petition for review,
the Supreme Court affirmed the Court of Appeal. At no point in Ray did any issue arise
involving the prosecution’s burden of proving the elements of the charged drug offenses
at trial.
        Finally, we reject the People’s argument that any error in Gabor’s case was
harmless whether examined under either the ordinary instructional error standard of
People v. Watson (1956) 46 Cal.2d 818, or the heightened constitutional standard of
Chapman v. California (1967) 386 U.S. 18. A jury could reasonably conclude that
Officer Butler acted unlawfully when he entered Gabor’s house, or when he refused
Gabor’s demand that he leave the home. At a minimum, the defense was entitled to
question the witnesses, argue the point, and have the jury determine the issue. The jury
was never given that opportunity because the trial court foreclosed those avenues.
We find the People’s argument that the error was harmless because the jury was allowed
to make a determination of the reasonableness of Officer Butler’s conduct under the

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community caretaking function exception to the Fourth Amendment’s warrant
requirement to be unpersuasive. The court’s instructions referred to the “community
caretaking function” obliquely, but did not define the concept as it related to any
exception to the Fourth Amendment’s warrant requirement or the lawfulness of Officer
Butler’s entry into Gabor’s home.
II.    Gabor’s Remaining Claims
       Gabor contends his convictions must be reversed because the trial court violated
his state and federal constitutional rights to confront the witnesses against him when it
unduly restricted his cross-examination of Officer Butler. Further, Gabor contends his
convictions must be reversed because the court violated his federal constitutional right
to due process, specifically, his right to present a defense, when it unduly restricted his
cross-examination of Officer Butler. Finally, Gabor contends the cumulative effect of the
trial court’s errors requires reversal. We need not address these claims in light of our
discussion above regarding the elements of the charged offenses.
                                      DISPOSITION
       The judgment is reversed.


                                                          BIGELOW, P.J.
We concur:


                     RUBIN, J.




                     FLIER, J.




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