People v. Avila

1

THE PEOPLE, Plaintiff and Respondent, v. GARY ARTHUR AVILA, Defendant and Appellant.

F087182

California Court of Appeals, Fifth District

November 25, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County No RF009129A . Michael G. Bush, Judge.

Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Clara Levers, Alexa Choi and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MEEHAN, J.

INTRODUCTION

In September 2023, defendant Gary Arthur Avila pleaded no contest to possession of a firearm by a felon and possession of ammunition by a felon, and he admitted the aggravating factors that he had prior convictions that were numerous or increasing in seriousness and he served a prior prison or jail term. (Pen. Code, §§ 29800, subd. (a)(1), 30305, subd. (a)(1); Cal. Rules of Court, rules 4.421(b)(2)-(3).)^[1] As to both counts and in accordance with its previously indicated sentence, the trial court suspended imposition of sentence and placed defendant on probation for two years, with the first 180 days in custody with a referral for work release.

Defendant filed a timely notice of appeal and obtained a certificate of probable cause.

Defendant advances two claims on appeal. First, he claims that the trial court erred when it denied his motion to suppress the firearm and ammunition found during the patdown search because his encounter with police outside his home was not consensual, and there was no reasonable suspicion of criminal activity to justify a detention. Second, he claims the trial court erred when it denied his motion for relief under the California Racial Justice Act of 2020 (§ 745; RJA) without holding a hearing.

The People dispute any entitlement to relief. They contend defendant consented to step outside his house and then consented to be patted down. They also contend the court did not err in denying defendant's RJA motion.

We conclude that the trial court erred when it denied defendant's motion to suppress the firearm and ammunition. We agree with the trial court's implied finding that defendant did not consent to step outside his house to speak with police, and, contrary to the court's finding, no justification existed to detain defendant. Therefore, defendant was entitled to suppression of the firearm and ammunition located during the patdown search.

Accordingly we reverse the judgment; vacate defendant's convictions; and remand this matter with directions to the trial court to vacate its prior ruling, grant defendant's motion to suppress in its entirety, and conduct further proceedings as appropriate. Our disposition renders defendant's RJA claim moot and we do not reach it.

DISCUSSION

I. Procedural Background

A. Motion to Suppress

As discussed in more detail below, after being dispatched to defendant's residence for a welfare check, Ridgecrest Police Department officers had defendant step outside, he was patted down, and a firearm with a loaded magazine was located in his pocket. Officers then searched the residence, and they found a box of shotgun shells in the closet and a magazine containing one round of ammunition under the mattress. Defendant filed a motion to suppress the identity of the people in the residence; the .40-caliber pistol, ammunition, and magazine; the shotgun shells; the magazine with one round in it; and any observations by officers and statements made by defendant during the entry, detention, search, and seizure. Defendant argued he was detained without justification, he was frisked without justification, and there was no exigency that justified the warrantless search and seizure.

The prosecutor filed an opposition, arguing that the initial encounter between officers and defendant was consensual, defendant consented to be searched, and defendant's wife, Vanessa P., consented to the search of the residence.

B. Hearing on Motion to Suppress

1. Officer Pettit's Testimony

At around 7:20 p.m. in September 2022, two officers with the Ridgecrest Police Department went to the house shared by defendant, his wife, and their three children after the department received a request for a welfare check involving possible domestic violence against defendant's wife, Vanessa.^[2] Pettit knocked loudly two or three times and announced, "Ridgecrest Police Department." Eventually a man whom Pettit identified as defendant answered the door wearing only a pair of shorts.

Pettit introduced himself, said he was conducting a welfare check, and asked "if [defendant] could speak with [him]" outside. Defendant began to back up and "said he wanted to go back inside to change," but Pettit testified that with respect to officer safety and domestic violence, they "try [their] best not to let someone go back into the home ...." Therefore, Pettit asked defendant "to come outside to speak with [him]," and told defendant that "the sooner he spoke with me, the sooner I would let him get about his business." Pettit did not tell defendant he was free to refuse the welfare check or that he had the right to refuse to come outside, and Pettit conceded he was trying to control whether defendant came outside or went inside.

Defendant then stepped outside and when Pettit asked if he could pat defendant down, defendant consented. Pettit felt a firearm in defendant's pocket, handcuffed defendant, and removed a .40-caliber handgun from his pocket. He then placed defendant in the patrol car. At the time, Pettit had no information that it was illegal for defendant to possess a firearm or that he was on any form of supervision that included search conditions.

2. Vanessa's Testimony

Vanessa testified that someone pounded on their door two or three times and did not use their doorbell. Defendant asked who was there, but there was no answer and no one announced police. Vanessa testified she was right behind defendant when he answered the door, she had no visible injuries, and they were not told police were there for a welfare check. The male officer, Pettit, appeared upset rather than peaceful and calm, but the female officer, Kenney, seemed nice and appeared unbothered.

Officers told defendant he needed to come outside. Defendant asked if he could put clothes on, but he was told no. Vanessa testified this exchange occurred approximately two times and defendant then went outside, where he was searched. Vanessa stated she stepped outside after defendant and was able to hear what was said. She testified the officer did not ask for consent before searching defendant and defendant did not give consent. Vanessa refused to speak with the male officer, but she later spoke with the female officer. She was upset and did not recall whether she gave consent to search their house.

3. Natalie's Testimony

Vanessa's oldest daughter, Natalie, was in her bedroom when she heard loud knocking at the door. She did not hear the doorbell ring. Vanessa came down the hallway and saw her parents at the front door. She did not hear anyone say anything about a welfare check. When defendant walked outside, she could see it was the police and they were acting aggressively.

C. Trial Court's Ruling

The trial court granted in part and denied in part defendant's motion to suppress. The court concluded the prosecutor had not met her burden of demonstrating Vanessa consented to the search of the residence^[3] and, therefore, the court excluded the shotgun shells and magazine located inside the house.

With respect to the initial encounter between defendant and Pettit, and the subsequent patdown, the court denied the motion to suppress. The court reasoned, "[T]hey knocked on the door. Obviously they're knocking hopefully loud enough for people to hear. They had to knock 2 to 3 times before somebody responded to the door. Then when they were met at the door, it is an individual wearing only shorts. Apparently he [had] underwear on as well, but no shirt and no other clothing. They asked him to step out, and he wants to leave their presence. And for officer safety purposes, it was testified to that Officer Pettit did not want the subject to step away, and he indicated that he would like him to come out so they could talk, and I think that that was appropriate under the circumstances, and an appropriate investigation. There was no evidence that there was any force used. There was no evidence that there was any coercion in the way of drawing of weapons, of placing hands-on [defendant], nor was there any evidence that the entryway was breeched [sic] by law enforcement or to extract [defendant]. Once outside to have that discussion, again I think it is appropriate to conduct a cursory pat-down for possible weapons, and that is what occurred here. And I do not believe that that would be violative of any privacy right that was unreasonably breeched [sic] given the circumstances and given the need to protect the safety of all those involved. And so I find that the officer was reasonable and did not create a Fourth Amendment violation and commit an illegal search ...." (Italics added.)

II. Legal Principles

"The Fourth Amendment provides in relevant part that the 'right of the people to be secure in their persons houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.' The Amendment establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When 'the Government obtains information by physically intruding' on persons, houses, papers, or effects, 'a "search" within the original meaning of the Fourth...