People v. Do CA6

Filed 5/10/16 P. v. Do CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041759 & H042461 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1472627)

v.

HOAN VAN DO,

Defendant and Appellant.

Defendant Hoan Van Do appeals from the judgment of conviction entered following his plea of no contest to cultivation of marijuana. On appeal, defendant contends that the trial court erred in denying his Penal Code section 1538.5 motion to suppress evidence, and he alternatively asserts that the trial court erred in issuing a restitution award. As set forth below, we conclude that the trial court erred in denying defendant’s suppression motion, and we will reverse. PROCEDURAL HISTORY An information, filed on May 8, 2014, charged defendant with cultivation of marijuana (Health & Saf. Code, § 11358; count 1), possession of marijuana for sale (Health & Saf. Code, § 11359; count 2), and theft of utility services (Pen. Code, § 498, subds. (b), (d); count 3). On June 17, 2014, defendant filed a motion to suppress evidence pursuant to Penal Code section 1538.5. The trial court denied the motion on July 25, 2014.

On August 4, 2014, defendant pleaded no contest to count one, cultivation of marijuana. Pursuant to the plea agreement, counts two and three were dismissed, and defendant entered a Harvey1 waiver by which he agreed to pay restitution on the dismissed count of theft of utility services. At the sentencing hearing on October 31, 2014, the trial court suspended imposition of sentence and placed defendant on probation for a period of three years. The trial court ordered defendant to pay restitution to Pacific Gas and Electric, but it reserved determination of the amount for a later hearing. At a hearing on January 16, 2015, the trial court ordered defendant to pay $82,742.01 as restitution to Pacific Gas and Electric. DISCUSSION Defendant contends that the judgment must be reversed because the trial court erred in denying his motion to suppress evidence. Specifically, he asserts that a warrantless entry into his home was unlawful, and that all evidence seized during the search of his home therefore should have been suppressed. Defendant alternatively asserts that the restitution award must be stricken because it was “based on speculation.” The Attorney General contends that the search of defendant’s home was lawful because the warrantless entry was justified by the emergency aid exception to the warrant requirement. The Attorney General also asserts that the restitution award was proper. As explained below, we conclude that the warrantless entry into defendant’s home was not justified by the emergency aid exception to the warrant requirement, and that the search of defendant’s home was unlawful. We accordingly will reverse the judgment of conviction.2