People v. Yang CA1/5

Filed 2/11/15 P. v. Yang CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Appellant, A141340 v. NENG VANG YANG, (Humboldt County Super. Ct. No. CR1300493) Defendant and Respondent.

Defendant Neng Vang Yang was charged with possessing marijuana for sale after police officers found large quantities of the drug while responding to a shooting inside his home. (Health & Saf. Code, § 11359.) The trial court granted defendant’s motion to suppress the evidence discovered during the search (Pen. Code, § 1538.5), and dismissed the case in the interest of justice after the People indicated they would be unable to proceed. The People appeal (Pen. Code, § 1238, subd. (a)(7)), arguing the marijuana was discovered during a lawful protective sweep of the premises. (Maryland v. Buie (1990) 494 U.S. 325 (Buie). We agree and reverse.

I. FACTS AND PROCEDURAL HISTORY1 At about 9:30 p.m. on November 23, 2012, Eureka Police Department officers were dispatched to a single-family, two-story house on Progress Street after a shooting at that location was reported. For safety reasons, they ordered everyone in the house to

1 The facts are taken from the hearing on the motion to suppress.

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come outside. About six to eight people complied, all of whom appeared to be members of the same family. Defendant was one of the people in the group and lived in the house. One of the men who came out of the house was handcuffed and taken into custody after being identified as the shooter. The people outside the house told police the shooting victim was the only person still inside. Officers entered the house and found the victim in the kitchen, bleeding from a gunshot wound to his leg. They performed a protective sweep to see whether any other suspects or victims were inside. The purpose of the sweep was to “clear” the residence and make sure it was safe for medical personnel and others to enter without fear of being attacked. Officer Stelzig covered the bottom floor during the sweep, while Officer Cooper went upstairs, checking rooms and looking anywhere he thought a person might be. Cooper entered one of the upstairs rooms and saw a large triple beam scale of the type used for weighing larger packages of marijuana. He also smelled an “overpowering odor” of marijuana. Cooper noticed what appeared to be a closet door inside the room that smelled of marijuana (he did not recall whether it was open or closed) and looked inside. He saw what he described as a large “attic” or “crawl space,” though it was on the same level as the second flood itself, rather than overhead. Inside the room were a “couple of rifle cases and several tubs and just areas where people could hide.” Cooper asked for more officers to come upstairs to help him clear the space. When more officers arrived, they entered the space and determined the rifle cases were empty. They saw large amounts of processed marijuana inside the tubs, some of which were see-through. The attic smelled of marijuana.