Opinion
F041000.
7-28-2003
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER ROY MILLER, Defendant and Appellant.
Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and Carlos A. Martinez, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On August 7, 2001, two informations were filed in the Superior Court of Fresno County charging appellant Christopher Roy Miller with multiple felony offenses. In case No. 662222-9, appellant was charged with count I, first degree burglary (Pen. Code, §§ 459, 460, subd. (a)); count II, second degree robbery (§ 211); count III, assault with a deadly weapon (§ 245, subd. (a)(1)); and count IV, making criminal threats (§ 422). As to counts II, III and IV, it was further alleged appellant used a deadly weapon, a knife, in the commission of the offenses (§ 12022, subd. (b)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
In case No. 662223-7, appellant was charged with 11 felony counts: counts I, V, and IX, sodomy of a person under 14 years old and more than 10 years younger (§ 286, subd. (c)(1)); count II, sexual penetration on a person under 14 years old and more than 10 years younger (§ 289, subd. (j)); counts III, VI, and X, oral copulation on a person under 14 years old (§ 288a, subd. (c)(1)); counts IV and VIII, lewd and lascivious act on a child under 14 years old (§ 288, subd. (a)); count VII, lewd and lascivious act on a child more than 10 years younger (§ 288, subd. (c)(1)); and count XI, continuous sexual abuse of a child (§ 288.5). Appellant pleaded not guilty and denied the special allegations.
On September 20 and October 15, 2001, appellant moved to suppress evidence pursuant to section 1538.5. On December 5, 2001, the court denied the motion. On April 3, 2002, the court granted the prosecutions motion to consolidate the two felony informations.
On May 22, 2002, the court granted appellants motion to sever the consolidated informations. In case No. 662222-9, appellant pleaded no contest to count II, second degree robbery; in case No. 662223-7, appellant pleaded no contest to counts I, II, III, IV, V, VI, and XI as charged; and the court dismissed the remaining charges and special allegations.
On June 25, 2002, the court denied probation in both cases and imposed an aggregate term of 21 years in state prison. In case No. 662223-7, the court imposed the upper term of 16 years for count XI; consecutive terms of two years (one-third the midterms) for counts I and V; and concurrent midterms of six years for counts IV, VI, II, and III. It also imposed a $ 4,000 restitution fine (§ 1202.4, subd. (b)), and imposed a $ 4,000 restitution fine (§ 1202.45), but stayed payment of that fine pending the successful completion of probation. The court further ordered appellant to register pursuant to section 290.1; testing pursuant to section 296; and no contact with the minor victim. In case No. 662222-9, the court sentenced appellant to one year (one-third the midterm) for count II, second degree robbery, to run consecutive to the sentence imposed in case No. 662223-7; imposed a $ 200 restitution fine (& sect; 1202.4, subd. (b)), and imposed a $ 200 restitution fine (& sect; 1202.45), but stayed payment of that fine subject to the successful completion of parole. The court reserved restitution in both cases and awarded 440 days of actual credits and 66 days of conduct credits, for a total of 506 credits.
On July 12, 2002, appellant filed a timely notice of appeal.
FACTS
Mariano Espinoza lived in a trailer home in Kingsburg. Around 9:00 p.m. on April 10, 2001, Espinoza noticed appellant Christopher Miller was visiting his next-door neighbor. Espinoza had seen appellant about four times during previous visits to the neighbor, and had been introduced to him. Around 1:45 a.m. on April 11, 2001, Espinoza was asleep when someone entered his trailer and climbed into his bed. The burglar displayed a knife, grabbed Espinozas neck, and covered his mouth. Espinoza grabbed the burglars hands and they struggled for the knife. As they fought, the burglar cut Espinozas neck with the knife.
The facts are taken from the transcripts of the preliminary examination and suppression hearing, and the probation report.
Espinoza testified that during the struggle, he realized appellant was the burglar. Appellant repeatedly said, in Spanish, that he would kill Espinoza. Appellant gained control of the knife and took Espinozas wallet, which contained his identification and about $ 350. Appellant also took a tape-recorder and a radio. Appellant told Espinoza to remain on the floor as he escaped. Espinoza later determined appellant had climbed into a window and unlocked the door of his trailer to get in that night.
Later on April 11, 2001, Fresno County Sheriffs Detective Richard Willhoite investigated the case and determined appellant lived on 12th Street in Kingsburg. Detective Willhoite and another officer went to appellants residence and contacted him. They informed appellant about the robbery investigation and asked his permission to enter his house and look for the victims stolen property, which included his wallet, identification, and money. Detective Willhoite testified he never threatened to conduct the search regardless of appellants consent. Appellant gave the officers his oral consent. Detective Willhoite asked appellant to give his written consent. Appellant asked what he should write, and Willhoite suggested "you do give us permission to search your residence." Appellant wrote and signed a document which stated: "I Chris Miller give Fresno County Sheriff permission to search my bed room."
Appellant escorted the officers to his bedroom. Detective Willhoite searched the bedroom for about 10 minutes, and found a backpack in the closet. The backpack was partially open, and Willhoite saw a small tin box inside the bag. The box was about five inches by four inches, and one-inch deep. Willhoite believed the box could contain the victims stolen property. Willhoite opened the box and found photographs of appellant engaged in sexual acts with a minor child.
Detective Willhoite testified he immediately stopped the search because he believed the photographs could be beyond the scope of appellants consent, and it would be better to wait for a search warrant. Willhoite contacted a detective with the sex crimes unit and informed him about the photographs. The detective subsequently obtained a search warrant for appellants residence.
On April 12, 2001, Sergeant Ronald Vaughn executed the search warrant and found 300 pornographic magazines, several hundred pornographic videotapes, and numerous photographs and films in appellants house. He also found a thin mattress pad stapled across a doorway in the bedroom, which concealed a VCR, television, and Polaroid camera. Sergeant Vaughn determined the videotapes, photographs, and eight-millimeter films depicted appellant sodomizing, orally copulating, and sexually molesting a minor boy. All of the sexual activity depicted in the photographs and videotapes occurred in appellants bedroom, and were apparently filmed from behind the concealed doorway. Sergeant Vaughn determined the boy was named N., and the videotapes were date-stamped various days in April 2000.
Appellant was arrested and advised of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 and agreed to answer questions. Appellant initially denied any sexual misconduct until Sergeant Vaughn showed him the photographs. Appellant then admitted "some activity" but claimed the conduct occurred "at a depraved moment." Appellant said he engaged in sexual activity with N. several times over a two-year period. N. was the son of appellants girlfriend, and they had lived together as a family for several years. Appellant had been N.s primary male role model and caretaker during that time.
Detective Jeff Dodd interviewed N., who was 11 years old. N. said appellant was his mothers ex-boyfriend. N. described appellants extensive sexual molestation of him, which occurred over several years. N. described acts such as sodomy and mutual oral copulation, which primarily occurred in appellants bedroom. N. was not aware that appellant had been videotaping the molestations. N. was very upset and felt it was his fault. N. further stated that appellant told him to perform the sexual acts or he would get in trouble, and warned him not to tell anyone. N.s mother stated she had broken up with appellant several years ago, but appellant still spent time with N. on weekends because he was the only father-figure N. had ever known.
Appellant was charged with multiple felony offenses arising from the burglary and robbery of Mr. Espinoza, and the continuous sexual abuse of N. Appellant moved to suppress the photographs found in the tin box, and other items seized during the execution of the search warrant, and argued Detective Willhoites initial search of the bedroom exceeded the scope of his consent when he opened the tin box. Appellant argued the tin box was too small to contain the wallet, identification and money stolen in the robbery, and his consent to search only covered areas which could potentially contain the stolen property. The court denied the suppression motion and found appellants written and verbal consent extended to his entire bedroom.
Thereafter, appellant entered into a negotiated disposition and pleaded no contest to second degree robbery of Mr. Espinoza, and to the commission of sodomy, oral copulation, sexual penetration, lewd and lascivious acts, and the continuous sexual abuse of N. He was sentenced to an aggregate term of 21 years in state prison.
DISCUSSION
Appellants appointed counsel has filed an opening brief which adequately summarizes the facts and adequately cites to the record, which raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436, 158 Cal. Rptr. 839, 600 P.2d 1071.) By letter of April 9, 2003, this court invited appellant to submit additional briefing and state any grounds of appeal he may wish this court to consider.
Appellant has submitted a letter which requests this court to review the trial courts denial of his suppression motion. Appellant contends Detective Willhoite exceeded the scope of his consent when he opened the tin box and found the photographs. Appellant asserts the tin box was too small to contain any of the robbery victims stolen property, and Willhoite improperly removed and looked through the photographs. Appellant challenges Detective Willhoites testimony that the tin box was in plain view in the open backpack, and his consent never extended to the bedroom closet. Appellant also challenges Willhoites testimony that he immediately realized the photographs depicted appellant having sex with a minor. Appellant asserts that the top photograph, which Willhoite would have seen when he opened the box, was just a legal photograph of his own naked body, and Willhoite improperly examined the other photographs in the stack, which contained the picture of the minor. Finally, appellant points to Willhoites testimony at the suppression hearing, in which he admittedly stopped the search to obtain a search warrant because he didnt want to exceed the scope of appellants consent. Appellant asserts Willhoites own testimony conceded he exceeded the scope of appellants consent when he looked through the photographs.
"The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362, 902 P.2d 729.)
With regard to a warrantless search of property, it is well settled that such is reasonable under the Fourth Amendment where proper consent is given. (Illinois v. Rodriguez (1990) 497 U.S. 177, 181, 111 L. Ed. 2d 148, 110 S. Ct. 2793; People v. Oldham (2000) 81 Cal.App.4th 1, 9.) Where the People rely on the consent exception to justify the reasonableness of a search, it is the Peoples burden to show that such consent was freely, voluntarily and knowingly given. (People v. Harwood (1977) 74 Cal. App. 3d 460, 466, 141 Cal. Rptr. 519.) "The prosecution bears the burden of showing that the consent to a search is voluntary and unaffected by duress or coercion. [Citations.] In every case, the voluntariness of a consent is a factual question to be decided in light of all the circumstances. [Citation.] The trial courts findings, on the issue of consent, whether express or implied, will be upheld on appeal if supported by substantial evidence." (People v. Aguilar (1996) 48 Cal.App.4th 632, 639.) Trial courts may accept an officers testimony that defendant freely consented to the search even in the face of conflicting testimony from defense witnesses. (People v. Ratliff (1986) 41 Cal.3d 675, 687, 224 Cal. Rptr. 705, 715 P.2d 665.)
A search conducted pursuant to a valid consent does not violate the Fourth Amendment unless the search exceeds the scope of the consent. (Washington v. Chrisman (1982) 455 U.S. 1, 9-10, 70 L. Ed. 2d 778, 102 S. Ct. 812; People v. Reed (1994) 23 Cal.App.4th 135, 141.) It is also the Peoples burden to show the warrantless search was within the scope of the consent given. (People v. Harwood, supra, 74 Cal. App. 3d at p. 466; People v. Oldham, supra, 81 Cal.App.4th at p. 11.) The scope of consent usually is defined by the expressed object of the search. (Florida v. Jimeno (1991) 500 U.S. 248, 251, 114 L. Ed. 2d 297, 111 S. Ct. 1801.) In Florida v. Jimeno, supra, 500 U.S. 248, a police officer stopped a vehicle and informed the occupant of the officers suspicion that the vehicle contained narcotics. The court held the drivers consent to a search of the vehicle reasonably could be understood to include within its scope the search of a closed paper bag discovered within the vehicle. The standard for measuring the scope of consent, the court said, is to ask "what would the typical reasonable person have understood by the exchange between the officer and the suspect." (Id. at p. 251.) The court pointed out that in granting permission to search the vehicle, the defendant "did not place any explicit limitation on the scope of the search." (Ibid.) The officer had informed the defendant he believed the defendant was carrying narcotics, and that the officer would be looking for narcotics. The court concluded: "We think that it was objectively reasonable for the police to conclude that the general consent to search respondents car included consent to search containers within that car which might bear drugs. A reasonable person may be expected to know that narcotics are generally carried in some form of a container.... The authorization to search in this case, therefore, extended beyond the surfaces of the cars interior to the paper bag lying on the cars floor." (Ibid.)
Although Jimeno cautioned the defendants consent probably would not extend to a locked briefcase in the trunk of the car, the court rejected the defendants contention that the police must request separate permission to search each container in the area to be searched. (Florida v. Jimeno, supra, 500 U.S. at pp. 251-252.) The court found no basis for adding such a requirement, observing that although a suspect may limit the scope of consent, if consent reasonably would be understood to extend to a container, no further authorization is required. (Id. at p. 252.) The court relied upon the publics interest in permitting consensual searches, stating that "the community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime, evidence that may insure that a wholly innocent person is not wrongly charged with a criminal offense." (Ibid.)
"Other courts and commentators have observed that open-ended consent to search normally does not suggest that the person consenting would expect the search to be limited in any way, and that a general consent to search includes consent to pursue the stated object of the search by opening closed containers. (See People v. $ 48,715 United States Currency (1997) 58 Cal.App.4th 1507, 1515 [consent to search vehicle for drugs included seed bags and suitcases, or any area of the vehicle that might contain drugs]; U.S. v. Stewart (5th Cir. 1996) 93 F.3d 189, 192 [consent to look at medicine bottle includes consent to examine contents]; U.S. v. Snow (2d Cir. 1995) 44 F.3d 133, 135 [consent to search vehicle for drugs includes consent to open and search a duffel bag inside the vehicle]; U.S. v. Zapata (1st Cir. 1994) 18 F.3d 971, 977 [consent to search vehicle includes consent to search duffel bag found in trunk]; 3 LaFave, Search and Seizure (3d ed.1996) § 8.1(c), p. 613 [general consent ordinarily may be understood to extend to an examination-in furtherance of the object of the search-of closed containers found in the area, particularly if the police have indicated they are searching for a small object which might be concealed in such a container]; see also Erwin et al., Cal. Criminal Defense Practice (1998 ed.) § 22.02[6], pp. 22-31 to 22-32 [consent to search generally implies consent to a complete search, unless a limitation is expressed]; but see U.S. v. Infante-Ruiz (1st Cir. 1994) 13 F.3d 498, 504-505 [when third party consent to search a vehicle and trunk is qualified by a warning that the briefcase belonged to another, officers could not assume without further inquiry that the consent extended to the briefcase].)" (People v. Jenkins (2000) 22 Cal.4th 900, 975-976, 997 P.2d 1044, fn. omitted.)
In the instant case, Detective Willhoite testified without contradiction that appellant freely and voluntarily consented to the search of his bedroom, and testified he never threatened to conduct the search in the absence of such consent. Detective Willhoite also testified that appellant wrote and signed the document which granted his consent to the sheriffs department to search his bedroom. Even if appellants consent was limited by the object of the search, Willhoite did not exceed the scope of appellants consent when he opened the tin box. Again, Willhoite testified without contradiction that he found the backpack in the bedroom closet, the backpack was partially open, and the tin box was in plain view. The bedroom closet was clearly within the scope of appellants consent. The tin box was approximately five inches by four inches in dimension, and one inch deep. Such a box could have easily contained Mr. Espinozas stolen wallet, identification, and cash. In addition, the identification or cash could have been concealed within the stack of photographs which Willhoite found in the box, and Willhoite did not exceed the scope of the consent when he looked through all the photographs.
We thus conclude appellants consent to search was freely and voluntarily given, the consent extended to his entire bedroom and closet, and Detective Willhoites examination of the tin box was within the scope of the consent. The trial court properly denied appellants suppression motion.
Our independent review discloses no further reasonably arguable appellate issues. "An arguable issue on appeal consists of two elements. First, the issue must be one which, in counsels professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment." (People v. Johnson (1981) 123 Cal. App. 3d 106, 109, 176 Cal. Rptr. 390.)
DISPOSITION
The judgment is affirmed.