People v. Boselli CA4/1

Filed 2/24/16 P. v. Boselli CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D067751

Plaintiff and Respondent,

v. (Super. Ct. No. SCE334640)

MICHAEL DANIEL BOSELLI,

Defendant and Appellant.

APPEAL from orders of the Superior Court of San Diego County, John H.

Thompson and Laura W. Halgren, Judges. Affirmed.

Nicholas De Pento for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine

Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

Law enforcement officers seized incriminating evidence against Michael Boselli

after they obtained a search warrant based on observations they made during a

warrantless "protective sweep" of his trailer after arresting him on an outstanding
misdemeanor warrant. At a special hearing following the preliminary hearing, defendant

moved to suppress the evidence under Penal Code section 1538.51 on the basis that the

protective sweep was not justified because no articulable facts suggested someone else

might be in the trailer and posing a threat to the officers. The trial court denied the

motion.

Thereafter, defendant retained new counsel and moved for a trial continuance to

allow enough time for the court to hear a second suppression motion. This time

defendant maintained that new evidence was available and that ineffective assistance of

counsel affected the outcome of his first suppression motion. The trial court denied the

continuance, reasoning it had no jurisdiction to hear a second suppression motion and,

therefore, there was no need to continue trial.

Defendant contends both rulings were in error. We disagree, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In a seven-count complaint, the People charged defendant with (1) possession of a

firearm by a felon; (2) person prohibited owning/possessing ammunition/firearm;

(3) possession of nunchaku; (4) possession of a cane sword; (5) possession of marijuana

for sale; (6) possession of concentrated cannabis; and (7) cultivating marijuana.

Suppression Hearing

Defendant moved to suppress most of the evidence against him, arguing police

obtained it based on observations they made during an improper warrantless search of the

1 All further statutory references are to the Penal Code.

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trailer in which he lived. At the hearing on defendant's motion, the People called two law

enforcement witnesses, and defendant called his mother and another relative. We base

the following factual summary on their testimony.2

On the morning of October 17, 2013, San Diego Sheriff's Detective Howard

Bradley and other members of the San Diego Regional Fugitive Task Force went to

defendant's residence in Lakeside to arrest him on an outstanding misdemeanor warrant

for a traffic violation. The officers knew defendant had prior felony convictions for

weapons, violence, and drug offenses. The officers had information that James Cruz—

another suspect with an outstanding felony warrant and a history of arrests for weapons,

violence, and narcotics offenses—was also living at defendant's house.

Defendant lived in a trailer on his parents' large property, which was surrounded

by a fence with a gated entry. There was a main house at the front, and several

outbuildings and a storage shed in the back. Detective Bradley approached the main

house and spoke with defendant's mother, Frances Boselli. After Bradley told Mrs.

Boselli that the officers were looking for defendant, she said he lived in a trailer towards

the back of the property and told Bradley he could search wherever he wanted. Mrs.

Boselli also told Bradley defendant always had people coming and going at all hours of

the day, using the property's rear entrance.

2 Because " 'the trial court resolved this matter in favor of the prosecution, for
purposes of this proceeding we view the record in the light most favorable to the People's
position.' " (People v. Werner (2012) 207 Cal.App.4th 1195, 1200, fn. 3 (Werner).)

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 While Detective Bradley was contacting Mrs. Boselli, Chris Morris (a parole agent

who had been assigned to maintain a perimeter around the property) heard officers

yelling, "We have a runner, we have runner." An adult male had jumped over the fence

and was running away from the property. Officers detained him and determined he was a

parolee at large. It was not Cruz.

Meanwhile, other officers on the task force went to defendant's trailer. They saw a

four- or five-foot tall marijuana plant growing directly next to the trailer's front door. As

the officers approached, dogs inside and outside the trailer barked viciously. When

defendant and his girlfriend exited the trailer, the officers asked defendant to secure the

dogs and arrested him pursuant to the outstanding arrest warrant. Defendant whispered

something into his girlfriend's ear for 15 to 20 seconds, and she went back inside the

trailer and closed the door behind her. Fearing she may be getting a weapon, "hiding

stuff, people," or destroying evidence, the officers yelled for her not to close the door and

to come back outside. She emerged from the trailer after about 30 seconds. After the

dogs were placed in the trailer, they continued to bark and push on the door. Agent

Morris secured the door with a bolt he found on the ground. The officers handcuffed

defendant.

The officers then began conducting a protective sweep of the property and its

outbuildings because they were concerned someone else could be hiding or lying in wait.

Agent Morris explained he was concerned because of the large size of the property, the

fact the officers dispersed through the property while detaining the runner, and the

loudness of the barking dogs and the yelling. About 30 minutes after the dogs had been

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placed inside the trailer, the officers asked defendant to remove them so the officers

could look inside to ensure nobody was hiding there.

Inside the trailer, officers saw a large amount of marijuana drying on strings, large

containers of bulk marijuana, and packaging materials for the distribution of marijuana.

They also saw in plain view a handgun and a pair of nunchaku. In a three-sided shed that

was 10 or 15 feet from the trailer, officers saw eight to 10 smaller marijuana plants.

Detective Bradley testified that his "training and experience has taught [him] where there

is cultivation of marijuana or narcotics involved, there's oftentimes weapons involved,

other people coming and going . . . ."3 The officers did not locate Cruz during the

protective sweep.

Detective Bradley asked defendant for consent to search the trailer. Defendant

verbally consented, but refused to sign a consent form. As defendant's father tried to

convince him to sign the consent form, Bradley overheard their conversation. Defendant

told his dad, "If I do, I'm fucked . . . . [¶] . . . [¶] [T]here's a gun in the trailer."

Mrs. Boselli testified she denied giving the officers consent to search the property

or telling Detective Bradley that people come and go at all hours. She testified that when

she and Bradley spoke, he showed her a photograph of Cruz and said the officers were

looking for him. Mrs. Boselli told Bradley she knew Cruz as "James Licari," and said he

was her niece's son. Mrs. Boselli testified she told Bradley she had only seen Licari a

couple of times, and it was outside the gate to her property.

3 During the officers' search of the property, another individual arrived and was
arrested for possession of methamphetamine.
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 Gina Licari testified she was James Cruz's mother. She explained that Cruz goes

by his father's last name. Licari testified that in October 2013, Cruz was living in Santee.

She said she had never seen Cruz at defendant's property.

The trial court denied defendant's suppression motion, relying on the following

evidence: (1) officers had information that "two potential subjects of arrest were present,

both of which had histor[ies] of narcotics, as well as violence . . . or gun backgrounds";

(2) officers confirmed one of those subjects (defendant) was likely present "and the other

individual who was subject to the arrest might have been there"; (3) Mrs. Boselli gave a

"general consent to search"; (4) the runner's act of fleeing the property "suggest[ed] that

there might be other people present at the trailer"; (5) officers observed contraband

outside the trailer; and (6) the scene seemed "somewhat chaotic . . . , with people running

away from the residence, dogs barking, attempts to get that matter resolved, knowing that

they had these two individuals at or near the property . . . ." Under these circumstances,

the trial court remarked, "I can't believe they would not have conducted a protective

sweep of the trailer. The very nature of the atmosphere would have required it, at least in

my opinion." (Italics added.)

Trial Continuance

Defendant subsequently changed counsel twice. His new counsel moved to

continue the trial date in order to bring a new suppression motion under section 1538.5,

subdivision (i). Defendant cited two bases for his new suppression motion. First, his

girlfriend, who was not available during the original motion hearing, was now available

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and would demonstrate that a protective sweep was not justified.4 Second, defendant

argued his prior counsel's "presentation" of the first suppression motion was

"unsatisfactory." As examples, he cited counsel's failure to (1) call defendant and his

father as witnesses; and (2) examine defendant and his parents regarding the timeframe of

the protective sweep, the officers' lack of consent, and defendant's supposed admission

that he had a gun in the trailer.

The People opposed the motion on the basis that the trial court lacked jurisdiction

to rehear the suppression motion because the court had already denied the first motion

after holding a special hearing following the preliminary hearing. The trial court agreed,

finding no continuance was necessary because a renewed suppression motion "would not

be procedurally properly before the court." Accordingly, the court did not address the

merits of the second suppression motion.

Guilty Plea and Sentence

Within one week of the court's denial of his motion for continuance, defendant

pleaded guilty to each of the seven counts against him and admitted three prison prior

enhancement allegations. The trial court sentenced defendant to four years in state

prison.

4 Defendant explained it took him and a private investigator months to locate the
girlfriend because after defendant's arrest they broke up, she relocated, her new residence
burned down, and she was left homeless.
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 DISCUSSION

I. Suppression Motion

Defendant contends the trial court erred by denying his suppression motion

because there were no articulable facts justifying the officers' protective sweep. We

disagree.

A. Protective Sweep Doctrine

"The federal and state Constitutions prohibit . . . unreasonable searches." (People

v. Celis (2004) 33 Cal.4th 667, 676 (Celis); U.S. Const., 4th & 14th Amends.; Cal.

Const., art. I, § 13.) A warrantless entry into a residence is " 'presumptively

unreasonable.' " (Celis, at p. 676; Werner, supra, 207 Cal.App.4th at p. 1198.)

" 'Nevertheless, because the ultimate touchstone of the Fourth Amendment is

"reasonableness," the warrant requirement is subject to certain exceptions.' " (People v.

Troyer (2011) 51 Cal.4th 599, 602.) "One such exception is the protective sweep."

(Werner, at p. 1205.)

"A 'protective sweep' is a quick and limited search of premises, incident to an

arrest and conducted to protect the safety of police officers or others. It is narrowly

confined to a cursory visual inspection of those places in which a person might be

hiding." (Maryland v. Buie (1990) 494 U.S. 325, 327 (Buie).) "The sweep lasts no

longer than is necessary to dispel the reasonable suspicion of danger and in any event no

longer than it takes to complete the arrest and depart the premises." (Id. at pp. 335-336.)

Buie recognized two circumstances in which protective sweeps are permissible. In

the first, "as an incident to the arrest," police may, "as a precautionary matter and without

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probable cause or reasonable suspicion, look in closets and other spaces immediately

adjoining the place of arrest from which an attack could be immediately launched."

(Buie, supra, 494 U.S. at p. 334.) In the second, police may sweep beyond the immediate

area of arrest if there are "articulable facts which, taken together with the rational

inferences from those facts, would warrant a reasonably prudent officer in believing that

the area to be swept harbors an individual posing a danger to those on the arrest scene."

(Ibid.) "[A] protective sweep may not be based on 'a mere "inchoate and unparticularized

suspicion or 'hunch.' " ' " (Celis, supra, 33 Cal.4th at p. 678, quoting Buie, at p. 332.)

This category of protective sweep is subject to the "reasonable suspicion" standard of

proof. (Celis, at p. 678.)

"A protective sweep is not limited to situations immediately following an

arrest . . . ." (Werner, supra, 207 Cal.App.4th at p. 1206.) "[I]n some instances, an entry

of a residence solely to conduct a protective sweep may be justified to ensure the safety

of officers effectuating arrests just outside." (Id., citing People v. Maier (1991) 226

Cal.App.3d 1670, 1675, and People v. Ledesma (2003) 106 Cal.App.4th 857, 864, fn. 3

(Ledesma).) This is because " 'in some circumstances, an arrest taking place just outside

a home may pose an equally serious threat to the arresting officers' as one conducted

inside the house." (Celis, supra, 33 Cal.4th at p. 679; Werner, at p. 1206, italics omitted.)

"The People bore the burden below of demonstrating the reasonableness of the

search under a recognized exception to the general proscription against the warrantless

entry into a home." (Werner, supra, 207 Cal.App.4th at p. 1206; see Vale v. Louisiana

(1970) 399 U.S. 30, 34.) "On appeal from a motion to suppress evidence, all

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presumptions are in favor of the trial court's factual findings, whether express or implied,

where supported by substantial evidence, and we review de novo the facts most favorable

to the People to determine whether the officers' conduct in performing the protective

sweep of defendant's home was reasonable under the Fourth Amendment." (Ledesma,

supra, 106 Cal.App.4th at p. 862.)

B. Analysis

The record shows that articulable facts, and the reasonable inferences drawn from

them, support a reasonable suspicion that someone may have been inside the trailer and

posing a threat to the officers. The officers had information that defendant and Cruz

were present. The officers knew both suspects had histories of drug, violence, and

weapons offenses. Mrs. Boselli told the officers people come and go from the trailer at

all hours, using the property's rear entrance. Consistent with this information, officers

detained one man who was fleeing the property when they arrived, and another who

arrived later in possession of methamphetamine. The officers saw a marijuana plant

growing immediately outside the trailer, which suggested to them "there's oftentimes

weapons involved, other people coming and going . . . ." (See, e.g., Ledesma, supra, 106

Cal.App.4th at p. 865 ["Firearms are, of course, one of the ' "tools of the trade" ' of the

narcotics business."].) Defendant's girlfriend disappeared into the trailer, which

heightened the officers' concerns regarding the presence of weapons or concealment of a

third person inside. Dogs were barking viciously at the officers, contributing to a

"chaotic" scene. We find these circumstances "would warrant a reasonably prudent

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officer in believing that the area to be swept harbors an individual posing a danger to

those on the arrest scene." (Buie, supra, 494 U.S. at p. 334.)

Defendant relies primarily on Celis, Ormonde, and Werner to support his

argument that the officers lacked a reasonable belief based on articulable facts to justify

the protective sweep. These cases are distinguishable.

The defendant in Celis was part of a drug trafficking ring that transported and sold

cocaine inside large truck tires. (Celis, supra, 33 Cal.4th at pp. 671-673.) Police

detained him when they saw him rolling a truck tire from his house to a waiting

coconspirator outside. (Id. at p. 672.) Because earlier surveillance suggested the

defendant lived with his wife and " 'possibly a male juvenile,' " the police entered the

defendant's home "to determine if there was anyone inside who might endanger their

safety." (Ibid.) They found no one, but did discover packages of cocaine in a wooden

box large enough to conceal a person. (Id. at pp. 672-673.)

The California Supreme Court held these facts did not create a reasonable

suspicion of danger to police justifying a protective sweep of the defendant's home. The

court reasoned that because officers had not been keeping track of who was in the house,

they entered "without 'any information as to whether anyone was inside.' " (Celis, supra,

33 Cal.4th at p. 679.) The court further noted there was no indication the defendant or his

coconspirator were armed when police detained them, nor had officers yet confirmed the

presence of drugs in the truck tire defendant was transporting. (Ibid.)

In contrast to Celis, there was substantial evidence here beyond the officers'

suspicion that Cruz might be in the trailer. Mrs. Boselli advised Detective Bradley that

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people come and go at all hours, and the officers detained a fleeing parolee when they

arrived. Whereas the officers in Celis did not know if defendant was in possession of

narcotics or weapons, the officers here saw marijuana growing outside the trailer and

knew defendant and Cruz both had criminal histories involving weapons, violence, and

drugs. These circumstances and the others that contributed to the chaotic scene

distinguish this case from Celis.

In Ormonde and Werner, appellate courts held protective sweeps unconstitutional

where the officers justified them primarily on the " 'dangerous' " and " 'highly

unpredictable' " nature of responding to domestic violence calls. (People v. Ormonde

(2006) 143 Cal.App.4th 282, 286, 295; Werner, supra, 207 Cal.App.4th at pp. 1208-1209

["without in any way minimizing the crime of domestic violence, compared with drug

smuggling—where weapons are considered to be ' " 'tools of the trade' " ' [citation]—no

suspicion of the presence of weapons may be inferred merely by the nature of the

suspected crime of domestic violence"].) Here, the officers' protective sweep was not

based solely on the nature of the call, but on the specific circumstances discussed above.

The trial court did not err by denying defendant's suppression motion.

II. Continuance

Defendant contends the trial court erred by denying his motion for continuance

because his renewed suppression motion under section 1538.5, subdivision (i) was not

procedurally barred. We disagree.

Section 1538.5, subdivision (i) provides in pertinent part as follows:

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 "If the property or evidence obtained relates to a felony offense
initiated by complaint and the defendant was held to answer at the
preliminary hearing, or if the property or evidence relates to a felony
offense initiated by indictment, the defendant shall have the right to
renew or make the motion at a special hearing relating to the validity
of the search or seizure . . . . If the offense was initiated by
indictment or if the offense was initiated by complaint and no
motion was made at the preliminary hearing, the defendant shall
have the right to fully litigate the validity of a search or seizure on
the basis of the evidence presented at a special hearing . . . . After
the special hearing is held, any review thereafter desired by the
defendant prior to trial shall be by means of an extraordinary writ of
mandate or prohibition filed within 30 days after the denial of his or
her motion at the special hearing."

As a general rule, "determination of a [section] 1538.5 motion at a special hearing

in the superior court . . . deprives that court of jurisdiction to reconsider the matter . . . ."

(Madril v. Superior Court (1975) 15 Cal.3d 73, 77; § 1538.5, subd. (i).)

There are exceptions to the general rule. For example, a renewed motion may

arise under section 1538.5, subdivision (h) on the basis of newly discovered evidence,

subject to a " 'due diligence' limitation." (§ 1538.5, subd. (h) ["If, prior to the trial of a

felony or misdemeanor, opportunity for this motion did not exist or the defendant was not

aware of the grounds for the motion, the defendant shall have the right to make this

motion during the course of trial."]; see People v. Superior Court of Butte County (1971)

4 Cal.3d 605, 611; People v. Young (1976) 62 Cal.App.3d 49, 51-52.) Similarly, a

renewed motion may also arise under section 1538.5, subdivision (h) if ineffective

assistance of counsel prejudicially affected the outcome of the first suppression hearing.

(See People v. Jones (2010) 186 Cal.App.4th 216, 236-244 [defendant established

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ineffective assistance of counsel at first suppression hearing where defense counsel failed

to locate potential eyewitnesses and failed to engage investigator].)

Here, however, defendant did not properly invoke in the trial court any of the

exceptions to the general rule against relitigating suppression motions. Defendant's

motion for continuance and proposed renewed suppression motion both referenced

section 1538.5, subdivision (i), not subdivision (h). Moreover, neither motion cited the

case law authority regarding exceptions to the general rule against successive suppression

motions.

Having already fully litigated his suppression motion at a special hearing held

after his preliminary hearing, defendant's avenue for challenging the outcome of that

hearing "shall be by means of an extraordinary writ of mandate or prohibition filed within

30 days after the denial of his or her motion at the special hearing." (§ 1538.5, subd. (i).)

At oral argument, defendant's appellate counsel acknowledged that defendant did not

timely challenge the trial court's ruling by writ review, and the time to do so had long

since lapsed before he substituted in as counsel. Thus, the trial court properly denied

defendant's request for a continuance on the basis that a renewed suppression motion was

not authorized by section 1538.5, subdivision (i).5

5 We do not construe our ruling as precluding defendant from challenging by way of
writ of habeas corpus the adequacy of his legal representation in connection with his first
suppression motion. We express no opinion on the merits of any such challenge.
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 DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

BENKE, Acting P. J.

MCDONALD, J.

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