People v. Hamilton, 2011 Cal. App. Unpub. LEXIS 3925 (CA Ct. App. 2011)
Court of Appeal of California, Third Appellate District
May 24, 2011, Filed
2011 Cal. App. Unpub. LEXIS 3925 | 2011 WL 1998751
THE PEOPLE, Plaintiff and Respondent, v. BRIAN KEITH HAMILTON, Defendant and Appellant.
Judges: NICHOLSON, J.: RAYE, P. J., BUTZ, J. concurred.
Opinion by: NICHOLSON
A jury acquitted defendant Brian Keith Hamilton of using threats to prevent executive officers from performing their duties; it convicted him of the felonies of exhibiting a firearm in the presence of peace officers in a threatening manner and making criminal threats, and the misdemeanor of exhibiting a firearm in public in a threatening manner. At sentencing, the trial court declared the former two offenses to be misdemeanors, suspended imposition of sentence, and placed defendant on informal probation for three years (with concurrent 180-day jail terms commencing in April 2010 as a condition).
On appeal, defendant contends the trial court should have granted his motion to suppress (premised on a claim of unlawful entry during execution of an inspection warrant), the evidence is insufficient to support the verdicts, and the instructions on forcible entry and consent were erroneous. We deem defendant to have also raised the issue of the proper calculation of conduct credits. We affirm the judgment as modified.
A county code enforcement officer had responded to at least six complaints from neighbors about the condition of the property on which defendant lived with his father and brother. In the course of these contacts, defendant had confronted the enforcement officer with a gun.
The superior court issued an inspection warrant  for the property in April 2009 in anticipation of a nuisance abatement hearing. The inspection warrant directed the advisement of the occupants at the time of the inspection that a refusal to permit entry was a misdemeanor, and authorized only nonforcible entry.  Two to three days before he intended to execute it, the enforcement officer posted a copy of the inspection warrant on the gate to the property.
The enforcement officer asked a deputy to accompany him in executing the inspection warrant. This was his custom, but he had particular concerns in light of defendant’s past behavior. The deputy lived in defendant’s neighborhood, was familiar with him, and had also received complaints from neighbors about conditions on defendant’s property. An animal control officer also came along in the event loose dogs on the property were hostile. A backup deputy was assigned to be present at the inspection as well.
The property consisted of a single-story residence on three to five acres located in the rural Shingletown area of Shasta county. It was fenced on all sides. The deputy and the enforcement officer approached the gate, which was locked with a chain. Defendant’s 78-year-old father came to the gate. The enforcement officer began recording with a video camera. A pastor of the neighboring Pentecostal church that defendant attended (Pastor Law), seeing the presence of officials, walked over to the property and stood nearby “to make sure things were going to be done right.”
The jury viewed the enforcement officer’s recording (and received a transcript defense counsel had prepared, which the prosecution had stipulated was accurate). The following is a summary of their contents.
The deputy spoke with defendant’s father, explaining the reason for their presence.  The deputy told the father “let [the enforcement officer] do his thing; he’s got to come in” to take pictures because “the judge signed it, that’s why and you know when a Judge signs it that’s it.” The deputy then stated, “[L]et [him] in Hugh, [p]lease.” The father said he did not have a key for the lock on the chain. (Pastor Law later vouched for this in his testimony at trial.) The deputy stated, “[W]ell a court order allows us to cut it and I don’t want to cut it”; then repeated, “I don’t want to cut a link, but the court order allows [the enforcement officer] on the property.” After the father protested that he had been working on cleaning up the property, the deputy again stated, “Hugh, if you have a key, I don’t want to cut a link.” When the enforcement officer interjected, “[S]o will you let him cut a link,” the father stated, “I don’t like it. I’ll tell you what I really don’t like it, because you can go right down this fence . . . and take pictures of [the state of the property].” After a brief exchange between the father and the enforcement officer about whether he had seen the posted copy of the inspection warrant (the father stating, “they have already read it”), the deputy returned with bolt cutters. After an audible click, the enforcement officer thanked the father for “allowing him [the deputy] to do that,” entered the property, and began a narrative about the conditions he was recording. (In the video, the father simply stood there while the deputy cut the link and the enforcement officer entered, neither indicating assent nor protesting further.) Neither the deputy nor the enforcement officer advised the father that a refusal to allow the inspection was a misdemeanor.
About 12 minutes into the inspection, defendant accosted the enforcement officer behind the house. (He is not visible in the recording.) The enforcement officer continued to record conditions (over defendant’s protests that forcible entry was not permitted) until defendant is heard stating “15 seconds he’s off or else,” at which point the enforcement officer noted that he was going to end his survey. As defendant counts off, an unidentified voice (testimony at trial indicating this was the backup deputy) claimed 15 seconds was not a reasonable amount of time. Defendant urged them to move faster. Defendant’s brother then confronted the enforcement officer as they neared the gate, wrestling for the camera.
There is a break in the recording at this point. When it resumes (from a vantage point outside the gate), defendant is standing in front of the home with a shotgun in hand. According to the transcript (the audio track at this point being difficult to hear), defendant stated, “It doesn’t get any better than this.” The recording displays disjointed imagery for the next 30 seconds, at last coming to rest on defendant holding the shotgun pointed in the air, standing at the gate with his father and brother and directing his brother to “get the camera first.” No one else is in the yard. When the enforcement officer pointed out he was now on public property, defendant’s brother demanded that he “relinquish the tape. Now.” Pastor Law approached defendant at the gate. Defendant told him, “I got three shots coming,” then in response to Pastor Law’s inaudible entreaties, said, “No. He could end up losin’ his life right now,” and, “No broke[n] arrows he’s going to die. Listen he’s going to die.” 
The recording ends here. We turn to testimony at trial providing further context for these contents.
When the enforcement officer entered the gate, the animal control officer determined that the dogs did not present a threat and returned to the area outside the gate near the roadway. The deputy and the backup deputy stood at the gate, holding it closed so that the dogs would not get loose. The deputy conversed with the father.
Defendant and his brother arrived in a truck. They jumped out, appearing very irate, and started yelling at the deputies and challenging their right to enter forcibly. Defendant ran off toward the back of the house in search of the enforcement officer. The backup deputy followed to keep the peace between them.
When defendant found the enforcement officer, he attempted to grab the video recorder. The enforcement officer at first asserted his right to continue recording, then heeded the backup deputy’s recommendation that they depart. As they walked around the house, defendant demanded that they get off his property in 15 seconds. The backup deputy and the enforcement officer saw that defendant had pulled out a small chrome derringer-type pistol and was pointing it up in the air.
Defendant then walked off toward the house. The enforcement officer continued to head toward the gate, the backup deputy remaining behind. The defendant’s brother charged at the enforcement officer, with the deputy in pursuit. The deputy pulled the brother away and put him in a patrol car to cool down.
Defendant emerged from the house holding a shotgun. He racked it and walked toward the gate. Pastor Law saw a shell drop to the porch when defendant racked it. The deputy told defendant to drop his weapon, and told the backup deputy and the enforcement officer to get off the property. The deputies, the enforcement officer, and the animal control officer put their vehicles between themselves and defendant.
Pastor Law, who was still standing at the gate, persuaded defendant to disarm. As defendant unloaded the shotgun, shells fell to the ground. Defendant laid the shotgun down. The deputies departed without arresting him at the time, not wishing to escalate the situation. Neither peace officer unholstered his weapon during the confrontation. Other than cutting the link, the inspection did not result in any other damage to the property.
Admixing the analytically distinct concept of suppressing evidence seized in the course of an unlawful search or seizure and raising a defense to charges that are based on observed conduct that the asserted unlawful search or seizure caused, defendant argues the trial court should have granted his pretrial motion to suppress. He asserts that in executing the inspection warrant, the officers made an unauthorized forcible entry upon his property in an area within the curtilage of his residence. As a result, his actions in response were not criminal, but the assertion of his right to defend his property with threats of force against “flagrant” executive misconduct. We disagree.
In the motion, defense counsel asserted that the deputy “should know” from previous contacts that defendant’s father suffered from Alzheimer’s and dementia. He supported this assertion with (what he deemed) indications on the DVD of the father’s apparent confusion and a defense investigator’s report of an interview with Pastor Law. The report claimed Pastor Law had described the father as elderly and a little senile, had said the deputy and enforcement officer pressured the father to allow them to cut the link, and had quoted the father purportedly saying, “‘If you’re gonna come in, come in. I can’t stop you'” (although that remark does not appear anywhere in the actual transcript of the recording).
The judge presiding over the motion had issued the inspection warrant. The parties did not present any testimony. They instead played the same DVD recording and supplied the same transcript that were exhibits at trial (the contents of which we have already related above).
The trial court never ruled definitively on the legality of cutting the link of the chain (deeming it a red herring). It believed the deputy and the enforcement officer had the subjective opinion that they were lawfully on the property. It noted the ambiguity of the father’s responses, which neither expressly denied nor affirmatively invited entry, and described him as offering a grudging acknowledgment that he could not stop them from entering and therefore they could enter. It mused that the property looked like an uninhabited junk yard. The court expressed the opinion that defendant did not have a right to brandish a shotgun at trespassers who were not acting in a threatening manner (without deciding whether the deputy and enforcement officer were in fact trespassing). The gist of its ruling appears to be “the evidence relevant to the charge[s] here are b[y]-products of the warrant, not products of the warrant . . . .” After ruling on the motion, the court noted for the record that the defendant’s father (who was present in the courtroom) appeared to be “fully competent, both here and on the video.”
The People do not challenge defendant’s premise that a violation of the statutory procedures for the execution of an inspection warrant subjects fruits of the warrant to suppression if the conduct of the executing officers was unreasonable in light of the purposes of the statute (People v. Tillery (1989) 211 Cal.App.3d 1569, 1577, 1580-1581 [forcible entry not authorized in warrant led to violent clash with occupant, which contravened statutory purpose and thus required suppression of contraband found during inspection]), and we consequently do not have any need to belabor the principles of law involved. The People claim we should find the search did not take place within the curtilage of defendant’s residence (obviating the need for any warrant). Bypassing the issue of consent, they alternatively argue that even if the entry was unlawful, suppression is not warranted. As we agree with their latter point, we do not address the first.
The present case is somewhat analogous to People v. Mathews (1994) 25 Cal.App.4th 89, in which the defendant moved to exclude testimony regarding his conduct (he had pointed a shotgun at an officer and poked him with it, disregarding the officer’s efforts to disarm him) after a possible “knock-notice” violation in the execution of a warrant for defendant’s son. (Id. at pp. 93-94.) Without extended analysis, the court declared the exclusionary rule did not apply in this circumstance because it would amount to a grant of “‘immunity from prosecution'” for offenses that a defendant commits after a violation of the requirements for executing a search warrant. (Id. at p. 96, citing United States v. Mitchell (9th Cir. 1987) 812 F.2d 1250 (Mitchell).)
We determined in People v. Cox (2008) 168 Cal.App.4th 702 that the illegal detention of defendant for walking down the middle of street, which defendant forcibly resisted (and then fled unsuccessfully), did not require exclusion of the evidence of his conduct after the illegal detention because this “‘”ha[d] been come at . . . by means sufficiently distinguishable to be purged of the primary taint.”‘” (Id. at pp. 706, 711.)  This requires an examination of the temporal connection between the conduct and the illegal police conduct, the degree of flagrancy of the conduct, and the existence of intervening circumstances. (Id. at pp. 711-712.) The temporal proximity was obvious, but the conduct was merely a good-faith mistake of law; most important to our analysis is the distinction between the procurement of tangible evidence through illegal conduct and the defendant’s independent decision to engage in criminal conduct as a result of the illegal detention, which severs the causal connection between ostensibly illegal conduct by the police and their subsequent observations of defendant’s criminal conduct. (Ibid. & fn. 10.)’
In re Richard G. (2009) 173 Cal.App.4th 1252 involved the detention of suspects resembling a description given in a radio dispatch; the minor forcibly resisted the efforts to detain him and threatened the police officers. (Id. at p. 1256.) After upholding the detention, the court stated that even if it had been illegal, testimony about a detainee’s subsequent crimes in the presence of the officers is not subject to suppression because the detainee’s intervening independent actions purges the evidence from the taint of the illegal detention. (Id. at pp. 1260-1262, citing a number of federal and out-of-state cases for this principle, among them, Mitchell.)
Defendant seeks to evade the force of these opinions. He is not persuasive.
He asserts the conduct of the deputy and enforcement officer was “flagrant” because their sole recourse on refusal of entry (in the absence of authorization to effect forcible entry) was to arrest the father for a misdemeanor or to seek a new inspection warrant that authorized forcible entry (see People v. Tillery, supra, 211 Cal.App.3d at pp. 1577-1578), and they were aware that their presence might trigger a confrontation. The latter fact, however, was not part of the evidence at the suppression hearing. As for the former, the conduct of cutting a link in a chain is “forcible” only in the most technical, legal sense of that word, certainly far less than the police conduct at issue in the cases above (and equally ameliorated, as in the latter two, by the subjective good faith that the trial court found was present).
He also asserts that his conduct did not amount to an independent act because it was not criminal — he was lawfully entitled to eject resistant trespassers with threats of reasonable force.  However, it is not the criminal nature as such of a reaction to illegal police conduct that renders it independent. The independence arises from a defendant’s intervening decision to refuse to submit to police authority, which in turn purges the effect of the illegal conduct and makes the observations admissible. The question of whether or not the observed conduct was criminal is a question for trial and not for a motion to suppress the observations themselves. (See People v. Mathews, supra, 25 Cal.App.4th at pp. 96-97 [improper service of warrant might be defense at trial on issue of lawful performance of duties].) We thus conclude on this basis that the trial court properly denied the motion to suppress.
Defendant argues sufficient evidence does not support one of the elements of his conviction for exhibiting a firearm in the presence of peace officers. He asserts a “rational trier of fact could [not] have found beyond a reasonable doubt that the officers were acting lawfully in execut[ing] . . . the inspection warrant,” because they effected a forcible entry contrary to the terms of the inspection warrant when they cut the chain without the father’s express consent. The People assert in a brief paragraph that there was sufficient evidence of the father’s consent to the cutting of the link.
The evidence of consent, as opposed to acquiescence to a show of authority, is scant. We do not need to rely on this slim reed, however. Defendant’s course of conduct continued long after the peace officers had fled his property and were seeking shelter behind their vehicles, at which point he made express threats against them. Under these circumstances, their presence on public property was lawful (the prosecutor making this precise point in arguing that trespassing was a straw man, displaying a still shot of that moment to the jury). Defendant’s threatening display of the shotgun was therefore sufficient evidence to support all elements of the offense, and we accordingly reject his argument.
In a similar vein, defendant argues sufficient evidence does not support his conviction for exhibiting a firearm in public,  because the evidence does not show that he acted unlawfully. He repeats his claim that his threatened show of force was a lawful defense of property against a resistant trespasser. (Civ. Code, § 50 [“[a]ny necessary force may be used to protect from wrongful injury the . . . property of oneself” (italics added)]; Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 829 [noting California Constitution as another basis for defense of property].)
As the People correctly point out, self-defense is the sole explicit statutory exception to punishment for brandishing (Pen. Code, § 417, subd. (a)(2) [undesignated section references will be to this code]), to which only defense of others has been added through judicial gloss (People v. Kirk (1986) 192 Cal.App.3d Supp. 15, 18-19 [relying on analysis of People v. King (1978) 22 Cal.3d 12, involving felon’s possession of a firearm]). Defendant does not cite any case authorizing defense of property as another exception.
Assuming the right to defend property applies in the present context by analogy as well, it is limited to using such force as appeared reasonably necessary under the circumstances known to defendant. (Stowell v. Evans (1931) 211 Cal. 565, 567 [use of only so much force as is necessary to eject trespasser from premises]; cf. Vaughn v. Jonas (1948) 31 Cal.2d 586, 600 [use of force to defend self or other].) Defendant does not even begin to explain how a display of deadly force in defense of property could be reasonably necessary as a matter of law on this jury question. Moreover, he fails to identify any evidence that the enforcement officer posed a threat of wrongful injury to his property. We therefore reject this claim.
Finally, defendant argues with respect to his conviction for criminal threats that the evidence did not establish a “true threat” because his statements were directed at trespassers, were conditional because they were contingent on the trespassers choosing to remain on his property (as shown in his surrender of his weapon after they left his property), and were a condition he was entitled to impose as the landowner. (People v. Bolin (1998) 18 Cal.4th 297, 339.) He thus asserts the evidence of a criminal threat was insufficient.
As above, whatever theoretical power this argument may have wilts in the glare of the facts. The prosecutor focused in his closing remarks on the threats that defendant issued as he was standing at the fence after the deputies and enforcement officer had left the property (and where the animal control officer had remained the entire time). The objects of the threats no longer were trespassers; he surrendered the shotgun only at the behest of Pastor Law; and as we discussed above, he did not have any right as a property owner to issue threats of deadly force in defense of property for which there was not any apparent risk of wrongful injury (even if we consider the implied threat he issued while holding the derringer-type pistol). We therefore reject this argument.
The court instructed the jury that “[f]orcible entry onto premises means an entry gained by breaking through gating or fencing on property, or entry gained by any kind of violence or circumstances of terror.” Defendant asserts this definition “informed jurors that only the specific acts listed would qualify as forcible entry” because it lacked qualifying language indicating the non-exclusive nature of the listed acts and therefore omitted “the long-settled principle that breaking locks constitutes forcible entry.” He contends that we must reverse his conviction for exhibiting his firearm in front of peace officers as a result, because the jury could not make an informed decision whether the deputy and enforcement officer were lawfully performing their duties. The People tersely assert that it is not reasonably likely the jury interpreted this instruction as excluding the breaking of a link in a chain securing a gate.
We note the prosecutor never attempted to dispute in closing argument that the entry was not forcible; he simply contended that it was irrelevant to the charges. Therefore, we cannot find any possibility of a more favorable outcome for defendant had the instruction included an express reference to link-breaking as forcible entry. In any event, we agree with the People: we believe any reasonable juror would construe “breaking through gating or fencing” as including breaking through the chain securing the gating or fencing. (Boyde v. California (1990) 494 U.S. 370, 378, 380 [108 L.Ed.2d 316, 327, 329]; People v. Kelly (1992) 1 Cal.4th 495, 525.)
Defendant proposed a special instruction on consent. This provided: “To consent a person must act freely and voluntarily and know the nature of the act or transaction involved. The consent cannot be equivocal or ambiguous. The consent must be voluntary and not submission to the express or implied assertion of authority. Consent can be implied by conduct as well as words but failure to object to the search alone is not consent. The person granting consent must do some affirmative act to show consent to search. The People must prove consent beyond a reasonable doubt.” (Italics and paragraphing omitted.) The trial court rejected defendant’s proposed instruction in favor of the prosecution’s, which provided only that “to consent a person must act freely and voluntarily and know the nature of the act or transaction involved. Consent need not be express, it may be implied from acts.”
During its deliberations, the jury submitted a question: “We need more clarification on what would constitute consent (implied) & if not deemed to be given, would that mean the deputies were not performing their lawful duties.” After an unreported discussion with counsel, the court referred the jury back to the instructions on consent, the inspection warrant, and forcible entry. It also provided additional instructions: “If the jury finds that consent, express or implied, was not given, then it also is for the jury to determine whether the deputies were performing lawful duties. . . . Failure to object does not constitute consent. Consent must be the product of free will and not mere submission to an express or implied assertion of authority.” (Paragraphing omitted.)
Defendant argues the instructions on consent failed to include two principles from his proposed instruction: implied consent requires an affirmative act, and the People must prove this beyond a reasonable doubt. As a result, he argues that we must reverse the conviction for the threatening exhibition of a firearm in the presence of a peace officer because their entry was illegal. The People respond that the former concept was communicated in the portion of the instruction that states implied consent can “be implied from acts.” They also argue the instructions as a whole cure any failure to connect the determination of consent expressly with the burden of reasonable doubt.
This argument collapses for the same reason as in its variations above. Consent was ultimately a straw man, given the peace officers’ presence on public property during the threatening display of the shotgun. Any conceivable error in the instruction is thus harmless beyond a reasonable doubt.
The probation report, prepared before the trial court reduced defendant’s convictions to misdemeanors at the March 2010 sentencing hearing, limited defendant’s presentence conduct credits for 64 days of actual custody to 32 days. It denied him the benefit of a more generous formula for calculating conduct credits under January 2010 amendments  because his present conviction for making a criminal threat was a “serious” felony. (§§ 422; 1192.7, subd. (c)(38); see former § 4019, subds. (b)(2), (c)(2) & (e) [Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50 (“former section 4019”)].) After the trial court’s reduction of the convictions to misdemeanors, defendant no longer had a present conviction for a serious felony disqualifying him from the more favorable formula. It also does not appear that he has a prior conviction for a serious felony (or a violent felony (§ 667.5, subd. (c))), or is subject to registering as a sex offender (§ 290 et seq.), either of which would similarly disqualify him from the more favorable formula (former § 4019, subds. (b)(2) & (c)(2); § 2933.1, subd. (a)).
The January 2010 amendments to former section 4019 apply to all cases still pending at the time of their effective date. (Cf. In re Estrada (1965) 63 Cal.2d 740, 745 [amendments that lessened punishment for crime apply to acts committed before passage, provided judgment not final]; People v. Doganiere (1978) 86 Cal.App.3d 237; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [both applying Estrada to amendments involving custody credits].)
Although defendant has undoubtedly completed the jail term that was a condition of his probation, and may never serve any future term of imprisonment if he complies with the remaining conditions of his informal probation, additional conduct credits for presentence custody is not an abstract question on appeal from the order granting probation. Any credits in excess of his term of imprisonment can be credited at a minimum rate of $30 per day proportionally against any base fines (and penalty assessments) or restitution fines. (§ 2900.5, subd. (a); People v. McGarry (2002) 96 Cal.App.4th 644, 647-648.)
As defendant is no longer in any of the classes excepted from accruing additional custody credit, he is now entitled to 64 days of presentence conduct credits for 64 days of actual custody, rather than 32. (Former section 4019, subds. (b)(1), (c)(1) & (f).) We direct the trial court to order a corrected page one of the probation report (prepared before the court reduced his convictions to misdemeanors) reflecting this additional conduct credit.
The judgment is affirmed. The trial court shall order a corrected page one of the probation report reflecting conduct credit of 64 days.
RAYE, P. J.
1. “An inspection warrant is an order . . . signed by a judge . . . directed to a[n] . . . official, commanding . . . [an] inspection required or authorized by state or local law or regulation relating to [various code violations].” (Code Civ. Proc., § 1822.50.)
2. In contrast, a post-hearing inspection/abatement warrant made provision for reasonable forcible entry.
3. While defense counsel intimated in his motion to suppress that the father had problems with his mental competence (a suggestion reiterated on appeal), the father appears competent — albeit irked — at the intrusion, the trial judge presiding over the suppression motion stated that the father appeared competent in the video (and in his demeanor as a spectator in court), and Pastor Law testified at trial that the father appeared to him to be clear-thinking (as did the deputy).
4. It is unclear whether defendant, an Air Force veteran, was using this term in its military sense of a call for assistance from all aircraft when a ground position is at extreme risk of being overrun.
5. This was the actual basis for the Mitchell holding. (Mitchell, supra, 812 F.2d at pp. 1253-1254.)
6. Notably, defendant’s digest of cases involving owners and resistant trespassers involves only civilians; he does not identify a single case that authorizes an owner to eject an illegally present police officer with the show of deadly force, a course of conduct that any reasonable person would recognize ends generally in what some term “suicide by cop.” (See <http://www.wordspy.com/words/suicidebycop.asp>.)
7. The prosecutor expressly elected the enforcement officer as the victim of this offense.
8. The Legislature subsequently revamped the statutory scheme for calculating presentence conduct credits, amending sections 2933 and 4019. (See Stats. 2010, ch. 426, § 5 [effective date Sept. 28, 2010].) As defendant was not sentenced to prison, section 2933 does not apply to him, and the amendments to section 4019 expressly have prospective effect only. (§ 4019, subd. (g).)