Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J38853
McGuiness, P.J.
The juvenile court adjudged appellant M.L. a ward of the court after sustaining a charge that appellant committed first degree residential burglary. (Pen. Code, § 459.) On appeal and in a related petition for a writ of habeas corpus, appellant contends he received ineffective assistance of counsel because his trial attorney failed to move to suppress evidence seized following a purportedly illegal arrest. We affirm the judgment and summarily deny the writ petition.
Factual and Procedural Background
On May 21, 2008, K.A., then 12 years old, was at appellant’s home. Appellant, who was 15 years old at the time, suggested breaking into the house next door to K.A.’s home. Acting on the suggestion, the two youths entered the backyard of K.A.’s next-door neighbor. Appellant removed the screen from a bathroom window, opened the window, then stood on a toy plastic bench or table and climbed through the window into the house. K.A. walked to the front of the house, where he heard noises coming from within.
When appellant emerged from the house, he told K.A. he had taken a Wii video game system from the home. Appellant then found friends to assist and returned to the burglarized residence, where appellant and his companions removed more property from the house. They stored the stolen items at the home of a friend who lived on Ohio Street in Vallejo.
When the owner of the burglarized residence, Bobbie Mawhorter, and her daughter returned home that evening, they discovered that their front door was open. The window to the rear bathroom, which had been shut and locked when they left the house, was open and the outside screen had been removed. A plastic bench had been moved to a location beneath the window. A shoe print was visible on the bench. Among the items missing from Mawhorter’s home were a Wii video game system and some Wii games that work with it, two computers, a cell phone, a camcorder, a camera, and a Nintendo DS. After Mawhorter contacted police, she spoke to her neighbors about what they had seen that day. The neighbors mentioned the first names of two neighborhood children. The names matched the first names of K.A. and appellant.
Vallejo Police Officer James Capoot responded to the scene of the burglary. He contacted Mawhorter, inspected the premises, and photographed the footprint on the dusty plastic bench near the rear bathroom window. In his report, officer Capoot noted the names of the neighborhood children Mawhorter’s neighbors had given her.
Acting on officer Capoot’s report, Corporal Jolene Spears of the Vallejo police department went to a middle school in Vallejo to speak with K.A. the day after the burglary. K.A. cried when the officer interviewed him but was cooperative. He admitted that he had been outside the Mawhorter house when appellant committed the burglary. K.A. directed officer Spears to an address on Ohio Street where he said appellant had taken the stolen property. Officer Spears spoke with two individuals, A.H. and R.O., while at the home on Ohio Street. Neither A.H. nor R.O. wore shoes with sole patterns consistent with the sole print found on the plastic bench outside the Mawhorter home. A search of the house on Ohio Street revealed covers for video games intended for use with a Wii video game system. However, A.H., who lived at the Ohio Street address, did not have a Wii video game system.
Officer Capoot contacted appellant at his home on May 28, 2008. Appellant’s mother invited the officer to enter the home and gave permission to search appellant’s bedroom. After discussing the matter further with appellant’s mother, officer Capoot arrested appellant. During the booking process, the officer noticed that the soles of appellant’s shoes appeared to match the sole print found on the plastic bench at the crime scene. He took appellant’s shoes and booked them into evidence.
The Solano County District Attorney filed a wardship petition in juvenile court pursuant to Welfare and Institutions Code section 602 alleging that appellant had committed first degree residential burglary, a felony violation of Penal Code section 459. At a contested jurisdictional hearing held on February 2, 2009, Mawhorter, K.A., officer Capoot, and officer Spears testified for the prosecution. The juvenile court found the allegations of the petition to be true. At the conclusion of the dispositional hearing on March 16, 2009, the juvenile court adjudged appellant a ward of the court, determined that the maximum period of confinement was six years, and placed appellant on probation in the custody of his parents subject to various terms and conditions.
Appellant timely appealed the court’s jurisdictional and dispositional orders. While his appeal was pending, appellant filed a petition for a writ of habeas corpus. We consolidated the writ petition with the pending appeal and requested that the People file informal opposition to the petition on or before the date the respondent’s brief was due.
Discussion
In both his appeal and his petition for a writ of habeas corpus, appellant contends his attorney rendered ineffective assistance of counsel by failing to challenge the legality of his arrest. He asserts the arrest was illegal because there were no exigent circumstances justifying a warrantless arrest in his home. He further contends that officer Capoot had no probable cause to make the arrest. According to appellant, the evidence seized incident to the illegal arrest—i.e., his shoes—should have been suppressed. He claims that but for evidence linking his shoes to the sole print found on the plastic bench at the crime scene, there is a reasonable probability that he would not have been adjudged a ward of the court. For the reasons set forth below, we conclude that appellant’s contentions lack merit.
In order to demonstrate ineffective assistance of counsel, a defendant must prove both that trial counsel’s performance was deficient and that the deficient performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687.) To establish deficient performance, a defendant must show that “counsel’s representation fell below an objective standard of reasonableness... [¶]... under prevailing professional norms.” (Id. at p. 688.) To prove prejudice, “ ‘[i]t is not enough for the defendant to show that the error[ ] had some conceivable effect on the outcome of the proceeding.... The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional error[ ], the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
Appellant first claims his trial attorney was incompetent for failing to challenge the legality of his arrest on the ground the officer did not possess an arrest warrant. He relies on the principle that warrantless arrests within the home are per se unreasonable in the absence of exigent circumstances, even if an officer has probable cause to make an arrest. (See Payton v. New York (1980) 445 U.S. 573, 589-590; People v. Ramey (1976) 16 Cal.3d 263, 275-276; People v. Cespedes (1987) 191 Cal.App.3d 768, 772.) Exigent circumstances exist when there is “an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.” (People v. Ramey, supra, 16 Cal.3d at p. 276.) It is undisputed that there were no exigent circumstances justifying entry into appellant’s home for the purpose of arresting him.
Even in the absence of exigent circumstances, however, a warrantless entry into a home to make an arrest does not violate constitutional search and seizure principles when the arresting officer has the occupant’s consent to enter the home. (See People v. Newton (1980) 107 Cal.App.3d 568, 577; see also People v. Ramey, supra, 16 Cal.3d at p. 275; Payton v. New York, supra, 445 U.S. at p. 583; People v. Jacobs (1987) 43 Cal.3d 472, 477-478.) Here, appellant’s mother gave officer Capoot her consent to enter the home. The officer was not required to possess an arrest warrant under the circumstances.
Although appellant acknowledges that an occupant’s consent to enter may excuse the requirement of an arrest warrant, he nonetheless argues that the scope of the mother’s consent did not extend to arresting her son. It is true, as appellant suggests, that when entry is based on consent, an officer’s authority is limited to the scope of the consent. (See People v. Superior Court (1970) 10 Cal.App.3d 122, 127.) Thus, for example, if the consent to enter is based on a representation that an officer merely seeks to talk to the defendant, an officer is not authorized to go beyond the scope of that consent and place the defendant under arrest. (In re Johnny V. (1978) 85 Cal.App.3d 120, 131-132; People v. Superior Court (Kenner) (1977) 73 Cal.App.3d 65, 69.)
On the other hand, the law does not “mandate[] that a consent to enter a home, in order to validate a warrantless arrest within the home, must consist of an express consent to the officers to enter to make an arrest.” (People v. Newton, supra, 107 Cal.App.3d at p. 578.) In People v. Newton, officers obtained permission from the defendant’s common law wife to enter the defendant’s home and look for him. (Id.at pp. 572, 578.) “Although the officers did not expressly state to [the common law wife] that they wanted to come in the home in order to arrest defendant,” the court found her consent was sufficient to allow the officers “to enter to find defendant for any purpose they desired, either to question him or to arrest him.” (Id.at p. 578.) The court held that the “governing principle of the scope of consent is that of the reasonable expectation of the officer derived from the words used and other actions on the part of the occupant giving consent.” (Ibid.)
Here, although officer Capoot did not expressly state that he sought entry in order to arrest appellant, he also did not represent that he sought entry solely for the limited purpose of talking to appellant. There is nothing in the record to indicate that appellant’s mother conditioned or limited her consent to enter in any fashion. Indeed, she not only allowed the officer to enter the home but she also authorized a search of appellant’s bedroom. The officer could reasonably expect that the scope of the mother’s consent extended beyond just being permitted to talk with appellant and allowed the officer to place appellant under arrest.
We observe that the scope of the mother’s consent presumably would have extended to an inspection of appellant’s shoes, the evidence that appellant claims should have been suppressed as the product of a purportedly illegal arrest.
Appellant next contends that trial counsel incompetently failed to challenge the arrest on the ground the officer lacked probable cause to make the arrest. He claims the arrest was premised “entirely” on statements made by K.A. to officer Spears. He further asserts that K.A.’s statement was inherently questionable because K.A. was a likely suspect with “every reason to lie.” We conclude this argument would have failed if offered in a motion to suppress.
“A warrantless arrest is authorized and legal ‘[w]henever [the arresting officer] has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.’ [Citation.]” (People v. Rosales (1987) 192 Cal.App.3d 759, 765.) “Cause to arrest exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime. [Citations.]” (People v. Price (1991) 1 Cal.4th 324, 410.) Probable cause is “less than proof beyond a reasonable doubt [citation]; less than a preponderance of the evidence [citation]; and less than a prima facie showing [citation].” (People v. Tuadles (1992) 7 Cal.App.4th 1777, 1783.) We apply a “totality-of-the-circumstances approach to test probable cause for an arrest.” (People v. Rosales, supra, 192 Cal.App.3d at p. 767.)
As a possible participant in the crime, K.A. could not be regarded as a citizen informant whose statement required no corroboration. (See People v. Ramey, supra, 16 Cal.3d at p. 269.) However, K.A’s statement was not the only information supporting appellant’s arrest. Information learned through the police investigation corroborated K.A.’s statement and provided probable cause to arrest appellant.
Specifically, the probation report details the investigation conducted by police following K.A.’s tearful admissions to officer Spears: “Two officers then contacted [A.H.], who resided at [an address on] Ohio Street. He confirmed to the officers that he was on probation with search and seizure terms. The officers searched [A.H.’s] downstairs bedroom. [A.H.] claimed no knowledge of the burglary. He stated [appellant] had brought some property over the day before, but he had taken it with him when he left. [A.H.] stated [appellant] was in possession of a Wii, some games, and a camera he had brought in his backpack. [A.H.] was sure [appellant] had taken the property with him, because he was looking for someone to buy them. [Appellant] had other items in his backpack. He had hooked up and played with the Wii while at [A.H.’s] house. [An officer] located two empty Wii game packages in [A.H.’s] bedroom. [A.H.] stated they did not belong to him and assumed [appellant] had left them there when he left. The empty game packages were booked into evidence. [¶] While [officers were] searching [A.H.’s] bedroom, [R.O.] came to the window. [R.O.] was contacted by police after being instructed to wait outside on the curb. [R.O.] said he was at [A.H.’s] house on 5/21/08, and he was present when [appellant] arrived with the Wii. He denied any knowledge of a burglary, and he confirmed [appellant] had taken the items with him when everyone left to play basketball. [¶] The officers checked the shoes of [K.A., R.O., and A.H.], and none of them matched the photos of the shoe print taken by Officer Capoot on 5/21/08.”
The statements of A.H. and R.O. corroborated and were consistent with the account given by K.A. (See People v. Green (1981) 117 Cal.App.3d 199, 205 [corroboration of unreliable informant’s statements provided by those of another, if interviews conducted independently and at a different time and place].) Likewise, the physical evidence at the scene of the burglary as well as the statements of the victim, Mawhorter, were consistent with K.A.’s account of the burglary. Contrary to appellant’s contention, the arrest was not premised entirely on K.A.’s statement. Rather, the statements of the victim, K.A., A.H., and R.O., taken together with evidence observed at the scene of the burglary, supplied probable cause to arrest appellant for the burglary of the Mawhorter residence.
Appellant complains that the People rely extensively on the probation officer’s report in order to supply probable cause for the arrest. He argues that the report contains “a good deal of hearsay” that might not have been presented or admitted into evidence at a suppression hearing. Appellant can hardly fault the prosecution for failing to introduce evidence to oppose a suppression motion that was never made. In any event, appellant’s argument misses the mark. When determining whether probable cause exists to justify an arrest, a court may consider evidence that consists of information a law enforcement officer received from others. (People v. Boyles (1955) 45 Cal.2d 652, 656.) “Hearsay evidence has universally been held to establish probable cause. [Citations.] Indeed, such hearsay evidence, consisting of statements by informers to law enforcement officers, appears to be the principal basis of judicial findings of probable cause.” (Mueller v. Department of Motor Vehicles (1985) 163 Cal.App.3d 681, 685.) Therefore, the fact that statements corroborating appellant’s involvement in the burglary include hearsay does not preclude their use in assessing whether officer Capoot had probable cause to arrest appellant.
As explained above, the arresting officer had probable cause to make the arrest as well as consent to enter appellant’s home, thus obviating the need for a warrant or exigent circumstances to justify a warrantless arrest in the home. Accordingly, appellant cannot demonstrate his trial counsel’s performance was deficient. Failing to file an unmeritorious motion does not constitute ineffective assistance of counsel.
Finally, even if footprint evidence should have been suppressed as the fruit of an illegal arrest, it is not reasonably probable the court would have reached a different result in the absence of the evidence. As the court explained when it sustained the petition: “I’m aware of the age of [K.A.] However, his demeanor, his tone of voice, the cadence of his language all suggest that he was telling the truth when he was testifying. His testimony is corroborated by the testimony of Miss Mawhorter regarding the child’s bench or table that was at the scene and by the officer’s testimony.” Although the court found “further corroborat[ion]” of K.A.’s testimony in the match between appellant’s shoes and the sole print left on the plastic bench found at the crime scene, the court’s statements indicate that the unchallenged testimony was sufficient to sustain the petition even without the footprint evidence. Thus, even if appellant could establish deficient performance by his trial attorney, he cannot show he was prejudiced by any error.
Disposition
The judgment is affirmed. The petition for a writ of habeas corpus is denied.
We concur: Siggins, J., Jenkins, J.