People v. Solorzano

THE PEOPLE, Plaintiff and Respondent, v. EDWARD SOLORZANO, Defendant and Appellant.

B307794

California Court of Appeals, Second District, Third Division

January 31, 2022

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA475762 James R. Dabney, Judge. Reversed and remanded for further proceedings.

Robert A. Werth, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

EDMON P. J.

After the trial court denied his motion to suppress evidence defendant and appellant Edward Solorzano pled no contest to being a felon in possession of a firearm. He appeals, arguing that evidence guns were discovered in his apartment during warrantless searches by officers should have been suppressed and he should therefore be allowed to withdraw his plea. He also contends that his probationary term must be modified in light of Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill 1950). We conclude Solorzano's Fourth Amendment claim, as it regards officers' second entry into his apartment, has merit. Accordingly, we reverse the court's denial of the suppression motion and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

1. The suppression motion

Police officers found a revolver and rifles during two warrantless entries into and searches of Solorzano's apartment. He was charged with a single count of being a felon in possession of a firearm (Pen. Code, § 29800, subd (a)(1)), ^[1] based on his possession of the revolver. Solorzano moved to suppress all evidence obtained in the searches pursuant to section 1538.5. At the suppression hearing, the People presented the testimony of civilian witness J.A., a transcript of J.A.'s 911 call, the testimony of five police officers, and video footage of events derived from officers' body-worn cameras. Harmonizing these sources, and viewing the record in the light most favorable to the trial court's ruling (People v. Davis (2005) 36 Cal.4th 510, 528-529) the evidence showed the following.

At approximately 12:30 a.m. on March 9, 2019, J.A. was in his third-floor Los Angeles apartment with his girlfriend, W.E. J.A. called 911 to report that a girl in apartment 15, the unit across the hall from his, was crying and screaming, "Let me go! Let me go!" and "Don't touch me!" Concerned, J.A. knocked on the apartment door. A tall, heavyset Latino male in his mid-30's, later identified as appellant Solorzano, answered. J.A. observed a young girl crying and trying to push past Solorzano and exit the apartment. J.A. asked what was going on, and Solorzano said the girl was his 13-year-old cousin. Solorzano said, "Take her," or similar words. J.A. returned to his apartment and he and W.E. decided they should notify police. J.A. told the 911 dispatcher that Solorzano was wearing a black T-shirt, and the girl was wearing "maybe a striped shirt." He did not see any weapons.

The 911 dispatcher transmitted the following information in a radio dispatch to the responding officers. "[Party reporting] heard female screaming 'let me go' and 'don't touch me' from [apartment] 15. [Party reporting] knocked on door and neighbor [male Hispanic] 30 years tall heavyset [black] T-shirt stated that it is only his niece. [Party reporting observed] female [Hispanic 13 [years] stripped [sic] shirt crying [attempting] to push past male at door. No weapons seen."

Los Angeles Police Department Officers, including Francisco, ^[2] Daniel Rodriguez, Pedro Aguila, Anthony Herrera, and Frank Vidaure arrived at apartment 15 in response to the call. Officer Francisco knocked on the door and announced, "Los Angeles Police Department open up!" There was no response from inside. He knocked and announced again, with the same result. When Officer Francisco knocked a third time, the door- which was apparently unlocked-swung slightly open. The officers entered the apartment to do a welfare check and safety sweep to ensure no one was in distress or hurt. Officer Vidaure immediately observed a revolver on the stove, in plain view, and announced, "Gun." He initially assumed the gun was "fake," but upon examination, the officers determined it was real. No one was inside the apartment. Because, at that point, the gun was not evidence of a crime, the officers did not seize it.

Less than two minutes after the entry into the apartment, and while the other officers were still inside, Officer Aguila knocked on J.A.'s apartment door and spoke to him and W.E. Aguila asked whether the people in apartment 15 had left, because no one appeared to be inside. J.A. replied, "I think they might've. . . . [T]his girl was crying, saying 'Let me go. Let me go. Don't touch me.' I don't know, kind of screaming . . . ." He reiterated what he had told the 911 operator, and added that Solorzano was "all trying to block her not going and then I think she finally kinda does go and then he follows her I think. . . ." W.E. added, "It sounded like there was some like thumping and moving around and she was like crying a lot and everything" and "so we were just concerned there's something happening there." Officer Aguila asked whether they had seen the girl before and J.A. responded, "yeah. She was trying to open the door once." He stated, "Maybe she lives here, too. I don't know." Officer Aguila told the couple that "until they come back, we can't really do much," but advised them to notify police if they heard anything suspicious. J.A. and W.E. went back into their apartment.

The officers left Solorzano's apartment and closed the door behind them. They discussed among themselves that the suspect would have seen them coming from his apartment window; he had left his house keys behind; and he and the girl were "probably running around here somewhere." Officer Rodriguez opined, "We look around, we'll probably find him." Officer Vidaure said, "You know what's crazy is the comments of the call, like, shirt was ripped off." Aguila replied, "Yeah, yeah. That's why I was like, freaking out . . . ."

The officers then canvassed the area, looking for the girl and Solorzano, but did not find either. Additional units and an airship assisted. While searching the building's roof, Officer Aguila and his partner observed a man matching the suspect's description, walking on the street towards the apartment building, alone. But when Aguila returned to apartment 15, he found the door closed as the officers had left it and did not see the man. Aguila proceeded downstairs to the area where the police vehicles were parked on the street. Approximately 20 minutes after the first entry, and as the officers were about to leave the scene, Officer Rodriguez looked up and saw Solorzano standing in apartment 15 at the window, looking down at the officers. The officers had not observed him reenter the apartment.

The officers set up a perimeter around the area. Four officers returned to apartment 15 to "see if we had a possible victim inside the residence with the possible suspect." They knocked on the door and stated, "Police, open up. LAPD, we know you're inside, you gotta open up." They received no response. Some officers continued to monitor the apartment door, while others searched in case Solorzano had escaped out the back and was hiding in the building. A police sergeant arrived and was filled in on what had transpired.

Meanwhile, Officer Vidaure knocked on J.A.'s apartment and spoke with him and W.E. Vidaure was aware of what J.A. and W.E. had already told Officer Aguila. Vidaure informed them that there was a loaded gun in Solorzano's apartment. He asked J.A. whether the girl looked "in distress." J.A. responded, "She was crying. In distress." Vidaure then asked whether her shirt was ripped. J.A. said he did not know if it was ripped, but it looked as though the girl and Solorzano had probably been "in a physical tussle." W.E. stated, it "sounded like there was . . . a physical fight. Like it sounded like it was bumping and stuff." The officer also confirmed that the girl was a juvenile. Vidaure directed J.A. and W.E. to go downstairs and talk with other officers who would take their statements. They did so.

While standing in the hallway outside the apartment, Officer Vidaure then said to Officer Herrera, "You hear?" Herrera replied, "I hear, like, tapping." Vidaure said, "I wonder if it's her." Herrera again announced the LAPD's presence and demanded that the suspect open the door, to no avail.

Downstairs, J.A. and W.E. spoke with another officer and confirmed that they had heard the girl screaming, that J.A. observed her crying; and she tried to exit the apartment but Solorzano tried to block her; and Solorzano chased her. Both confirmed they had seen the girl around the apartment before, but gave no specific information regarding how often, and that they had not seen Solorzano with a gun.

Approximately an hour and 10 minutes after officers saw Solorzano at the apartment window, they knocked and announced again, kicked in Solorzano's door (which was now locked), and entered the apartment. Solorzano was in the bedroom, in bed. Officer Vidaure immediately observed that Solorzano appeared to be a member of the Dog Patch criminal street gang. The officers observed that the revolver, which had been on the stove, had been moved. An officer found shotguns in a closet. The officers arrested and handcuffed Solorzano, and escorted him out of the apartment.

Officers then conducted a 10 to 15 minute search of the apartment during which they looked in drawers, the toilet tank, and various...