People v. Sutton

• Citation: 134 Cal.Rptr. 921,65 Cal.App.3d 341
• Decision Date: 27 December 1976
• Docket Number: Cr. 29098
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Edith Merle SUTTON, Defendant and Appellant.

Page 921

134 Cal.Rptr. 921

65 Cal.App.3d 341

The PEOPLE, Plaintiff and Respondent, v. Edith Merle SUTTON, Defendant and Appellant.

Cr. 29098.

Court of Appeal, Second District, Division 3, California.

Dec. 27, 1976.

As Modified Jan. 4, 1977.

Hearing Denied March 17, 1977.

Wilbur F. Littlefield, Public Defender, Harold E. Shabo, Andrew Mason and H. Reed Webb, Deputy Public Defenders, for defendant and appellant.

Burt Pines, City Atty., and Ward G. McConnell, Chief, Appellate Div., for plaintiff and respondent.

POTTER, Associate Justice.

This appeal from a judgment of the Municipal Court of Los Angeles Judicial District is before us by certification from the appellate department of the Superior Court of Los Angeles County pursuant to rules 63(a) and (c), California Rules of Court.

Appellant, Edith Merle Sutton, was convicted by jury verdicts of violating Penal Code section 273a (endangering a child) and Penal Code section 272 (neglect of a child). Essentially all of the evidence relating to either charge was a product of observations made by Sergeant Earl Blackwell at appellant's home at the time of her arrest. A motion to suppress all such evidence was made by defendant pursuant to Penal Code section 1538.5 and was denied. The sole question presented by this appeal is the propriety of that denial.

The evidence at the 1538.5 motion consisted of the testimony of Sergeant Blackwell of the Los Angeles Police Department. Blackwell received a radio report from the radio communications division advising him that there were 'small children left alone' at 7830 South Western Avenue, apartment number 2. This call was received about 2:00 a.m., and Blackwell proceeded to that address since there were no other available units in the neighborhood. He arrived within a few minutes, parked, and examined the premises. He ascertained that it was a 10-unit apartment building and proceeded to apartment number 2. He knocked on the door, waited several minutes and then knocked again. There was no response. He observed that there were lights on in the front room and in the bedroom. He heard a television or radio playing inside. When he received no response in about 10 minutes, he checked the other apartments to see if anyone would come out 'to tell me who called' and he also looked for the manager's apartment but could not identify one.

He then returned to his police vehicle and initiated radio communications seeking further details. While he was engaged in this process, another car drove up and stopped about 30 feet behind him. There were two occupants, one a man and the other a woman. The woman got out of the car and headed for the apartments. When Blackwell ascertained that the woman was going to apartment 2 he approached the door behind her. He observed her open the door with her key and start to enter.

Blackwell arrived at the door at the point appellant had almost closed it.--it was open 'a matter of a few inches.' He knocked on the door and at the same time put his foot in the door to prevent closure. Blackwell who was in uniform announced that he 'was there on a radio call about children left alone,' and identified himself as a police officer. He asked appellant who she was and if she lived there. Appellant responded that she lived there but did not give her name. During this conversation Blackwell testified he was 'on the doorway. I had my foot in the door.' In the interval Blackwell was inquiring as to appellant's name he opened the door. He estimated that 30 to 40 seconds elapsed or were consumed by this process. Before crossing the threshold Blackwell observed that there was considerable trash and dirty clothes strewn about the kitchen area, and a baby bottle in the living room.

Blackwell also observed that appellant's 'speech was slurred. There was a very strong odor of alcohol beverage about her breath, and she had a hard time hanging onto the door.' Blackwell was of the opinion that appellant was 'in a condition I considered unsafe to care for the children.' Upon crossing the threshold, Blackwell proceeded directly through the living room into the bedroom, where he found appellant's two children. The children, aged 6 and 16 months respectively, were alone in the bedroom one of them lying on a bed and the other in a crib.

Blackwell then examined the conditions in the kitchen where he found 'dirty dishes in the sink, dried food in the pans on the stove.' He opened the ice box and ascertained that it was empty except for a quantity of milk. He found no one present in the apartment other than appellant and the two children.

The evidence upon which appellant's conviction was based consisted largely of Blackwell's testimony and observations of others based upon matters discovered by him. Photographs of the children and conditions in the apartment made by the scientific investigation division of the police department, called in by Blackwell, were also received in evidence. Blackwell informed appellant that she was under arrest and she and the children were transported to the police station by a second unit called for that purpose.

Contentions

Appellant contends that her constitutional right to be immune from unreasonable search and seizure was violated when Sergeant Blackwell 'put his foot in the doorway and pushed open the door,' because 'it was only After the officer had made his intrusion that the officer obtained any additional facts to corroborate his anonymous telephone call.' The People assert 'full comportment by all police herein with every Fourth Amendment principle.'

Discussion

The trial court heard the testimony of Sergeant Blackwell and denied the motion to suppress. In viewing this determination, we must accept 'the trial court's resolution of all questions of credibility of witnesses and the permissible inferences drawn by it from the testimony at the hearing.' (People v. Freeny, 37 Cal.App.3d 20, 24, 112 Cal.Rptr. 33, 36.) 'Generally the ruling of a trial court upon a motion implies a finding of fact favorable to the prevailing party on each ground or theory underlying the motion.' (People v. Manning, 33 Cal.App.3d 586, 601, 109 Cal.Rptr. 531, 542.) 'Appellate review of a ruling made under section 1538.5, Penal Code, is limited to whether there is substantial evidence in the record to justify such ruling.' (People v. Junious, 30 Cal.App.3d 432, 436, 106 Cal.Rptr. 344, 346.) Consequently, we will imply that the trial court found in favor of the People on all issues presented by the motion to suppress, and limit our inquiry to the question whether there was substantial evidence to support such findings.

Appellant did not demand a showing of the foundation for the official report of 'small children left alone' received by Sergeant Blackwell on the police radio. Consequently the rule stated in People v. Collin, 35 Cal.App.3d 416, 420, 110 Cal.Rptr. 869, is applicable. There the court said:

'In the instant case defendant did not, at the time of the hearing of the motion pursuant to Penal Code section 1538.5, specifically challenge the prosecution to present evidence that the officer who originally furnished the information transmitted over the police radio had probable cause to believe that defendant had committed a felony or that he was in possession of facts amounting to circumstances short of probable cause which would have justified him making the detention. The thrust of defendant's attack on the detention, as appears in his memorandum of points and authorities filed in the municipal court in support of his motion, was that the initial stop of defendant exceeded its lawful scope when the detention was prolonged past what was reasonable to the performance of the officer's official duties. Accordingly, the prosecution was not required to present as a witness the officer who initiated the original broadcast or the officer who had the conversation with the mail carrier. As applied to this case, it must be assumed that the officer who initiated the broadcast had adequate cause to detain defendant and that, accordingly, he could properly delegate the detention to Officer Fischer. . . .'

As applied to this case, appellant's failure to demand a Remers-Madden ¹ showing requires us to assume that the officer who originated the radio report had probable cause to believe that there were, in fact, small children left alone at appellant's apartment. Consequently, appellant's argument in her brief that there was an absence of 'additional facts to corroborate his anonymous telephone call' at the time Sergeant Blackwell put his foot in the door erroneously assumes that there was any requirement for corroboration. Blackwell was entitled to treat the official report as reliable information based upon a citizen-informant's report appropriately verified by the officer who received it. As such it required no corroboration. (People v. Ramey, 16 Cal.3d 263, 269, 127 Cal.Rptr. 629, 545 P.2d 1333.)

There were, moreover, corroborative circumstances known to Sergeant Blackwell at the time he restrained appellant from closing her door. He had verified the fact that if there were occupants in appellant's apartment, they were not capable of responding to his repeated knocks on the door. This was consistent with their being 'small children' too young to respond. Further, he observed appellant's return to the apartment after an absence at least as long as the duration of his presence in the vicinity of the apartment. Appellant's entry into the apartment with a key prima facie indicated that she was an occupant. There was, therefore, probable cause to arrest appellant for a violation of Penal Code section 273a, which was being committed in the officer's presence. Section 273a makes it a criminal offense to place a child 'in such situation that its person or health is endangered' or even to permit a child to be 'placed in such situation that its person or health may be endangered.' Upholding the constitutionality of...