P. v. Brunty

Filed 5/26/06  P. v. Brunty CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

            APPEAL from a judgment of the Superior Court of Los Angeles County, Dewey L. Falcone, Judge.   Reversed.

            Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.

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            Alba Jeanette Brunty appeals from the judgment entered following her convictions by jury of four counts of felony child endangerment (Pen. Code, §  273a, subd. (a); counts 2 through 5), following the denial of a suppression motion (Pen. Code, §  1538.5).  The court suspended imposition of sentence and placed appellant on probation for five years.

            In this case, we conclude the trial court properly denied appellant's suppression motion.  Police officers received a call that a nude woman, possibly under the influence, was in a house with children.  The officers went to the location, appellant nude, answered the door, and she displayed indicia that she was under the influence.  The officers entered to check on the welfare of the children inside, including infants whom the officers could see from outside the door.  Notwithstanding appellant's claim to the contrary, the officers' entry was lawful under the community caretaking exception to the warrant requirement.

            We also conclude appellant's statements to officers after they entered the house and questioned her were not obtained in violation of her Miranda rights.  The officers posed a moderate number of questions as part of general on-the-scene questioning in appellant's home, and any interrogation was not custodial. 

            We accept respondent's concession that the trial court reversibly erred by failing to instruct on misdemeanor child endangerment as a lesser included offense of each of counts 2 through 5.  Finally, since we must remand to permit a retrial, there is no need to reach appellant's contention that the trial court erred by giving to the jury CALJIC No. 2.20.1, which pertains to evaluating the testimony of a child 10 years old or younger.

FACTUAL SUMMARY

1.  People's Evidence.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on July 29, 2003, appellant's son Richard C. (hereafter Richard) and Martha S., a neighborhood child, were outside Martha S.'s residence.  Richard, upset, had Martha S. help him telephone his aunt.  Richard asked his aunt to pick him up because, according to Richard, appellant was â€