P. v. Cowper

 

 

 

 

 

 

 

 

 

 

 

Filed 11/15/13  P. v. Cowper CA1/2

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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
TWO

 

 
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THE PEOPLE,             Plaintiff and Respondent, v. SAMUEL ELIJAH COWPER,             Defendant and Appellant.

A137398         (Solano County       Super. Ct. No. VCR209766)

 

>I. INTRODUCTION

            After
pleading no contest to one count of committing lewd acts on a child and one
count of possession of child pornography
(respectively, Pen. Code, §§ 288, subd. (a), and 311.11, subd. (a))href="#_ftn1" name="_ftnref1" title="">[1], appellant
was denied probation and, pursuant to a negotiated disposition, was sentenced
to a total term of imprisonment of three years and eight months on the two
counts.  Per his brief to us, he appeals
from that conviction pursuant to People
v. Wende (1979) 25 Cal.3d 436. 
However, his actual appeal is from an order of the trial court denying
his pre-plea motion to suppress evidence.  Such an appeal is specifically authorized by
section 1538.5, subdivision (m), and California Rules of Court, rule
8.304(b)(4)(A).  We have reviewed the
record and the law regarding appellant’s motion to suppress and affirm the
trial court’s order.

II. FACTUAL AND
PROCEDURAL BACKGROUND

            In
2010, Mary Cowper (hereafter Mrs. Cowper), appellant’s mother, managed a
licensed child care facility in her home in Vallejo.  Appellant, then 30 years old, had a bedroom
in that house. 

            On
November 22, 2010, Kimberly Miller, an investigator with California’s Community
Care Licensing Division of the Department
of Social Services, went to that house in connection with an investigation
she was conducting of possible child abuse occurring at the facility.  That investigation had started a few days
earlier, on November 17, 2010, when Miller conducted an interview with an
eight-year-old girl identified as A.C.  A.C.
had started coming to Mrs. Cowper’s facility when she was about two or three
years old.  In May 2004, appellant asked A.C.
to “take down her pants and her underwear and then he asked her to turn around
in a circle while he photographed her parts or photographed her.”  This occurred, A.C. related to Miller, when
she was under the care of Mrs. Cowper at the latter’s home.

            Miller
visited the Cowper residence on November 22 in order to serve a ten-day
complaint notification and to conduct an investigation which, she testified,
“could go criminal.”  At that point in
time, she knew that appellant was the person suspected of committing a
crime.  Mrs. Cowper was in “her side
yard” when Miller arrived at her home, but Miller asked her “if I could tour the
facility, and she stated that I could.”  Miller
then did so, asking to go into various rooms; she did so, she explained,
because prior to her visit, she had done a “facility file review,” a review
which showed that no rooms were “off limits,” i.e., that “every room in the
house is part of the facility floor plan.  [Mrs. Cowper] did not deem it to be off
limits.” 

            When
Miller toured the Cowper house, there were children there, but they were in a
television room and a back room.  Other
than the children, Mrs. Cowper told Miller that no one else was present in the
home.  Miller asked Mrs. Cowper to get
the records for the children and the staff, which Mrs. Cowper did.  Before Miller examined those records, she
walked around the house to review its condition and also see who else was
present.  In the course of doing so, she
asked Mrs. Cowper “if I could please go into the rooms.”  Mrs. Cowper apparently agreed to that
request, because one of the rooms Miller wanted to inspect was appellant’s and,
when Mrs. Cowper took her to the entrance to that room, she advised Miller
“that he was not at home, and that he generally keeps his bedroom door
locked.”  But, when Mrs. Cowper turned
the doorknob to that room, the door opened and Miller “smelled something that
smelled like marijuana” coming out of his room. 
Miller then told Mrs. Cowper that she needed to determine if that room
was safe, because the door was unlocked and some of the children could have
entered it.  Miller was thus permitted to
enter appellant’s bedroom; she made some observations about its contents
(including some CD’s and flash drives), but then left the room and Mrs. Cowper
closed its door.

            Miller
then went to look at the facilities records and interviewed some of the
children who were there; she then returned to appellant’s bedroom, but found
the door now locked.  Miller “requested”
that Mrs. Cowper open the door again so she could check the bedroom “more
thoroughly.”  In so doing, she told Mrs.
Cowper that her office had “received a complaint that her son, Sam, had been
taking photographs of some of the day care children without their clothes, and
I would like to take the DVD’s, the CD’s and the flash drives as evidence.”  Mrs. Cowper let her into the room again,
stating that “there shouldn’t be anything bad on them.”

            In
the course of her inspection of appellant’s room, Miller found several CD’s and
flash drives, a knife in a box, and marijuana under the bed.  Although then without a warrant, Miller took
the CD’s and DVD’s and the knife, marijuana, etc., from appellant’s room.

            The
following week, Miller went to her agency’s Sacramento office and viewed the contents
of the CD’s, DVD’s and flash drives she had collected from the Cowper residence
and childcare facility; the material she viewed showed images of children involved
in sexual acts with men.  Miller then
contacted the Vallejo Police Department regarding her visit to the residence
and facility, and turned over the electronic material she had taken to one of
its detectives.  Another detective
obtained a warrant to search those drives. 
After that review, the first detective obtained a warrant to search the
Cowper house and facility, and seized a hard drive from a computer found
there.  A review of the flash drives by
the Vallejo police showed that they contained child pornography. 

            The
first Vallejo police detective interviewed two young girls, S.P. and A.C., in
December 1010 and January 2011.  S.P.
told him that, when she was between the ages of three and four, appellant
touched her on her legs, chest and back and, when she was a few years older, on
her buttocks and vaginal area.

            On
March 10, 2011, the Solano County District Attorney’s office filed a four count
felony complaint charging appellant with three counts of violating Penal Code section
288, subdivision (a), the commission of lewd acts on a child, and one count of
violating section 311.11, subdivision (a), possession or control of child
pornography.  On August 12, 2011,
appellant, via his counsel, filed a motion to suppress evidence taken by Miller
from the facility and the Cowper home. 
The district attorney filed his opposition to that motion on August 25,
2011, and appellant responded on September 13, 2011.  The court ordered that a hearing on this
motion be continued to a later date.

            On
September 20, the district attorney filed a four count information charging
appellant with the same four counts alleged in the earlier complaint.  On September 30, 2011, appellant was
arraigned and pled not guilty to all four counts. 

            On
October 28, 2011, appellant’s motion to suppress came on for hearing; the
motion was argued and taken under submission by the trial court.  On November 10, 2011, further argument was
had before the trial court, and it then denied the motion to suppress.

            On
June 8, 2012, appellant renewed his motion to suppress under section 1538.5, a
motion the prosecution opposed.  However,
no hearing was ever held on this second motion, as the trial court reset the
matter twice. 

            On
August 9, 2012, appellant withdrew his plea of not guilty and entered pleas of
no contest to counts three and four of the information, i.e., one charge of
violating section 288, subdivision (a), and one count of violating section
311.11, subdivision (a).

            At
a sentencing hearing held on November 29, 2012, the court denied appellant
probation and, pursuant to the previously negotiated disposition, sentenced him
to the low term of three years for his violation of section 288, subdivision
(a), and a consecutive sentence of eight months (one-third of the midterm) for
his violation of section 311.11, subdivision (a), for a total of three years and
eight months.

            On
December 10, 2012, appellant filed a notice
of appeal based on the denial of the motion to suppress brought, as noted
above, under section 1538.5, and also challenging the validity of the
plea.  On December 19, 2012, the trial
court granted appellant’s request for a certificate of probable cause regarding
the validity of the pleas of no contest entered by appellant and the trial
court’s denial of probation.  It did not,
however, grant such a certificate regarding the denial of appellant’s motion to
suppress. 

>III. DISCUSSION

            In
accordance with the procedures outlined in People
v. Wende, supra, 25 Cal.3d 436, and Anders
v. California (1967) 386 U.S. 738, 744, we conclude that there are no
meritorious issues to be argued on appeal. 


            First
of all, appellant specifically waived his right to appeal in executing the
change of plea form on August 9, 2012.  Further,
and contrary to the statement in appellant’s Wende brief that the trial court “did not orally inquire as to that
waiver at the hearing on [appellant’s] change of plea,” the trial court
specifically called appellant’s attention to that form and asked appellant to
confirm that the “initials and a signature” on the form were his, and he did
so.  Then the court asked appellant:  â€œIf you had any questions regarding the
contents of this form, did you have the chance to speak with your lawyer about
those questions?”  Appellant answered:
“Yes.”

            As
stated by our Supreme Court in People v.
Panizzon (1996) 13 Cal.4th 68, 83: “[A] court may rely upon a defendant’s
validly executed waiver form as a proper substitute for a personal
admonishment.”  (See also >id. at p. 84; People v. Foster (2002) 101 Cal.App.4th 247, 250; >People v. Nguyen (1993) 13 Cal.App.4th
114, 119-122; People v Castrillon (1991)
227 Cal.App.3d 718, 722.)  Under those
authorities, we conclude that appellant did, in fact, waive his right to appeal. 

            Secondly,
although, as just noted, the trial court did not grant a certificate of
probable cause regarding the denial of appellant’s motion to suppress, we
consider appellant’s principal basis for appealing to be that order of the
court, i.e., its order of November 10, 2011, in which it found that “the search
was reasonable under the circumstances.” 
We agree; as noted above, Miller testified that “every room in [Mrs.
Cowper’s] house is part of the facility floor plan.”  Further, per her testimony, Mrs. Cowper
specifically let Miller inspect the entire facility, including appellant’s
bedroom.  Thus, anything and everything
that Miller collected therefrom fell within the “plain view” doctrine.  (See People
v. Lenart (2004) 32 Cal.4th 1107, 1118-1119; see also 4 Witkin &
Epstein, Cal. Criminal Law (4th ed. 2012) Illegally Obtained Evidence,
§§ 352 & 353, and cases cited therein.)

            Finally, we also
conclude there is no need for further briefing on either the validity of
appellant’s plea of no contest to the two counts and the trial court’s denial
of probation.  The record before us shows
that appellant was specifically questioned by the court regarding that change.  And the trial court clearly did not abuse its
discretion in denying appellant probation because, immediately after the change
of plea, his counsel specifically waived the referral of the case to the
probation department and the preparation of a probation report.

>IV. DISPOSITION

            Both
the order denying appellant’s motion to suppress and the judgment, including
the sentence imposed, are affirmed.

 

 

 

 

 

 

 

 

                                                                                    _________________________

                                                                                    Haerle,
Acting P.J.

 

 

We concur:

 

 

_________________________

Richman, J.

 

 

_________________________

Brick, J.*

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

            *
Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.