People v. Lange

PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. ARTHUR GREGORY LANGE, Defendant and Appellant.

A157169

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

October 30, 2019

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Sonoma County Super. Ct. No. SCR699391)

After Arthur Gregory Lange was charged with driving under the influence of alcohol (Veh. Code, § 23152), he moved to suppress evidence. The court denied Lange's motion and the appellate division affirmed. Lange subsequently pled no contest to a misdemeanor offense, and then appealed the denial of his suppression motion a second time. The appellate division affirmed Lange's judgment of conviction.

Lange petitioned for transfer to this court based on an order in a civil proceeding finding Lange's arrest was unlawful. We granted the unopposed petition. We conclude Lange's arrest was lawful and affirm Lange's judgment of conviction.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2017, the prosecutor charged Lange with two misdemeanor violations of driving under the influence of alcohol (Veh. Code, § 23152, subds. (a), (b)), and with the infraction of operating a vehicle's sound system at excessive levels (id., § 27007). Later the prosecutor added an allegation that Lange had a prior conviction for driving under the influence (id., § 23540).

I. The Suppression Hearing

In March 2017, Lange moved to suppress evidence arguing a police officer's warrantless entry into his home violated the Fourth Amendment. At the hearing on the motion, California Highway Patrol Officer Aaron Weikert testified that on October 7, 2016, at around 10:20 p.m., he was parked perpendicular to State Route Highway 12 in Sonoma County. He observed a car "playing music very loudly." The officer was about 200 feet from the car. The driver—later identified as Lange—honked the car's horn four or five times. There were no other vehicles in front of Lange and the officer "wasn't sure what [Lange] was honking at."

The officer began following Lange intending to conduct a traffic stop. There were several cars between the officer's and Lange's. The officer observed Lange make a right turn. When the officer turned right, there were no vehicles between them, but Lange was about 500 feet ahead. Lange turned left and the officer followed.

According to the officer, Lange stopped for a few seconds. The officer stopped as well. When Lange began to move forward, the officer activated his overhead lights. The officer did not do so earlier because he was not familiar with the street and was trying to get his "bearings." The officer's overhead lights consisted of "four red lights and there is a white bright light that switches between red and blue." Lange "failed to yield."

Lange turned into a driveway and the officer followed. Lange's car went into a garage and the garage door began to close. The officer exited his vehicle, approached the garage door, stuck his foot "in front of the sensor and the garage door started to go back up." The officer went into the garage to speak to Lange. The officer asked Lange if he noticed the officer. Lange said he did not.

The court admitted into evidence a video recording of the incident and reviewed it at the hearing. A private investigator testified that Lange never came to a complete stop when being followed by the officer and opined on the short length of time between when the officer activated his overhead lights and when Lange turned into his driveway.

At the hearing, defense counsel argued a reasonable person in Lange's position would not have thought he was being detained when the officer activated his overhead lights and the officer should not have entered Lange's garage because the officer was investigating possible traffic infractions, not serious felonies. The prosecutor argued that Lange committed a misdemeanor when he failed to stop after the officer activated his overhead lights. The officer had probable cause to arrest Lange for this misdemeanor offense and exigent circumstances justified the warrantless entry into Lange's garage.

The trial court denied the suppression motion. The court stated: "Obviously, the vehicle code violations are not egregious, but they are violations of the vehicle code. The Officer did have in his discretion the right to turn on the lights when he felt he wanted to, and perhaps the officer—we can make all kinds of perhapses. Perhaps he wanted to follow him further. Perhaps he wanted to see if there was anything else that was happening. The fact that the Defendant turned into the driveway, I don't know that the officer had any way of knowing that. . . . [¶] I don't think that we can look at this as having the officer entering the garage saying didn't you see my lights as showing that there isn't probable cause. I mean certainly that would be an inquiry as to why didn't you stop earlier. You both had a lot of points on authority. They can be interpreted various ways. At this time, from the testimony I've heard, I'm going to find that this motion is not well taken and deny the motion."

II. The Civil Proceeding

Based on this incident, the Department of Motor Vehicles (DMV) suspended Lange's license for one year, and Lange filed a petition for administrative mandamus to overturn the suspension. (Lange v. Shiomoto et al., Super Ct. Sonoma County, 2017, No. SCV-260489.)

In early January 2018, the court granted the petition determining Lange's arrest was unlawful. The court concluded the "hot pursuit" doctrine did not justify the warrantless entry because when the officer entered Lange's garage, all the officer knew was that Lange had been playing his music too loudly and had honked his horn unnecessarily, which are infractions, not felonies. The court rejected the DMV'sargument that Lange was attempting to flee into his garage to avoid a detention initiated in a public place. It concluded there was no evidence Lange knew the officer was following him, nor any evidence Lange was attempting to flee. As the court explained, Lange "was driving to his home. There is no evidence of any bad driving or that [Lange] otherwise operated his vehicle in an unsafe or unlawful manner. When [Lange] got to his residence, he turned into his driveway, drove into his garage, and attempted to close the automatic garage door. The door would have closed, had the officer not stopped it with his foot, causing it to reopen."

III. The Appellate Division Proceedings

In late January 2018, the appellate division of the Sonoma County Superior Court affirmed the denial of Lange's suppression motion. It determined the officer had probable cause to believe Lange "intended to evade a detention that was initiated in a public place" and, as a result, the entry into Lange's garage was lawful. As the appellate division explained, "the analysis is an objective analysis, and therefore the subjective beliefs and intents of both the officer and [Lange] are irrelevant. The Court finds that a reasonable person in [Lange]'s position would have known the officer intended to detain [Lange] when the officer activated his emergency lights from right behind [Lange]'s vehicle and continued following [Lange] up his driveway. The fact that the officer followed [Lange] up his driveway, rather than continue to drive up the road, provided ample notice that [Lange] was the target of the investigation. Based upon [Lange]'s failure to submit to the officer's show of authority, and the closing of the garage door behind [Lange], there was probable cause to believe [Lange] was attempting to evade the detention in violation of [Penal Code section] 148[, subdivision] (a)."

After Lange pled no contest to the misdemeanor offense of driving under the influence of alcohol (Veh. Code, § 23152, subd. (b)), he appealed from his conviction, again challenging the denial of his suppression motion. The People moved to dismiss Lange's second appeal. In November 2018, the appellate division denied the motion to dismiss. In March 2019, the appellate division affirmed Lange's conviction finding therewas probable cause to believe Lange intended to evade a detention initiated in a public place, and that the officer's entry into both Lange's driveway and his garage were lawful.

In April 2019, Lange requested the appellate division certify his case for transfer to this court (California Rules of Court, rule 8.1005). The appellate division denied the request. Lange then petitioned this court for transfer (id., rule 8.1006). We granted the unopposed petition.

DISCUSSION

The People contend we should dismiss this appeal "as the second appellate judgment is either void or voidable." We are not persuaded we should dismiss this appeal or remand it for dismissal. On the merits, we affirm.

I. The Appellate Division Had Jurisdiction to Review Lange's Second Appeal

The People argue that Lange's second appeal to the appellate division, made after he entered his plea, is "either void for lack of statutory appellate jurisdiction under subdivisions (j) and (m) of Penal Code section 1538.5, or voidable because . . . [the appellate division's first decision] is law of the case."

We are not persuaded. The exclusionary rule generally prohibits the prosecution from introducing evidence obtained by way of a Fourth Amendment violation, and Penal Code section 1538.5¹ is "the Legislature's codification of the exclusionary rule." (Barajas v. Appellate Division of Superior Court (2019) 40 Cal.App.5th 944, 954.) Subdivision (j) of section 1538.5 provides in part that "[i]f the property or evidence seized relates solely to a misdemeanor complaint, and the defendant made a motion for . . . the suppression of evidence in...