Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

The People v. Tony Harvey Mcclung


September 19, 2011


(Super. Ct. No. P07CRF0013)

The opinion of the court was delivered by: Robie ,j.

P. v. McClung



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Tony Harvey McClung pled no contest to voluntary manslaughter in exchange for dismissal of the remaining counts and allegations and a stipulated 11-year state prison sentence. The court sentenced defendant accordingly.

Defendant appeals. He contends the trial court erroneously denied his suppression motion. We reject his contention and affirm.


About 2:00 a.m. on September 2, 2006, William Harmon approached Deputy Sheriff Steven Fulton who was in the vicinity of the El Dorado County Jail. Harmon said that he wanted to report a murder, but wanted to remain anonymous for his own safety. According to Deputy Fulton, Harmon stated that on August 30, 2006, he received a phone call from defendant, a longtime friend. Defendant asked Harmon to come to his house located on Bramblewood Lane in Shingle Springs because he (defendant) was discarding some property that Harmon might want, some car parts and an older truck explaining he (defendant) was moving to Oregon and his girlfriend, "Pam," was moving to Burlingame. Harmon said it was Pam's house but that defendant had been living there.

Harmon knew defendant's girlfriend Pam was a certified public accountant and was wealthy. About 5:00 p.m. on August 31, 2006, or September 1, 2006, Harmon met defendant outside the house on Bramblewood. Defendant said he would be packing up a U-haul to move to Oregon. In exchange for the car parts and the truck, defendant asked Harmon to paint the inside of the house and to remove the carpet because the house was "evil" or contained "evil spirits." Defendant told Harmon to get rid of anything he found inside or outside the house that he did not want. Harmon went inside the house and saw several black crosses spray-painted on the kitchen walls. Crying, defendant explained that "his baby was gone" and he "shouldn't have gave [sic] her the hamburger" and then began mumbling. Harmon believed that "something bad had happened" and that Pam had choked on a hamburger. Harmon became afraid.

In the kitchen, defendant handed Harmon a military style M-16 rifle and then said that "basically she is gone." Harmon handed the rifle back to defendant. Defendant gave Harmon a key to use to enter the house to do the work. Harmon gave the key to Deputy Fulton and explained that he thought that defendant planned to take Pam's body with him to Oregon.

At 2:15 a.m., Deputy Fulton reported to Sergeant James Byers that Harmon had reported a possible homicide. Sergeant Byers spoke with Harmon who seemed reluctant to provide more information. Harmon's main focus seemed to be a fear for his own safety and a concern that defendant was a threat to him. Harmon's story was disjointed but he never said he saw a body or the signs of a struggle or violence. Harmon told Sergeant Byers that he should hurry before defendant hid the body. Harmon admitted to Sergeant Byers that he had been drinking with defendant when defendant made his statements about the hamburger.

After Sergeant Byers consulted with Sergeant Tom Hoagland, Byers decided a "welfare check" on Pam at the residence was the best course of action. When dispatch inquired whether he wanted a medical unit, Sergeant Byers declined. Sergeant Byers did not call the residence because he was concerned for officer safety (M-16 rifle) and it might alert a suspect who could flee.

About 3:00 a.m., four deputies went with Deputy Fulton to the house. En route to the house, Deputy Fulton received information from dispatch that there had been past calls for medical aid by a person named Pam Krantz who was located at the address of 6040 Bramblewood Lane. No calls had been made for law enforcement. The deputies parked down the street where no one could see them. Harmon had reported that a U-haul trailer and a gray Dodge truck were at the residence but the vehicles were not there when the deputies arrived.

Deputy Fulton knocked on the front door 10 to 15 times. There was no answer and no movement was detected in the house. No lights were turned on inside the house. Through the glass window on the front door, the deputy saw a neon light on the far wall which later was discovered to be a slot machine. Using the key Harmon had given him, Deputy Fulton inserted it into the deadbolt and it opened the lock. The officers entered with guns drawn. Deputy Fulton announced in a very loud voice multiple times that officers were present and demanded that anyone present make themselves known. There was no response. The deputy saw numerous black painted crosses on the living room walls. Double doors, leading to what was later determined to be the master bedroom, had a towel or blanket pushed underneath.

Officers found defendant and another man upstairs in the loft and both were detained. Sergeant Byers asked defendant if he knew why the officers were there and defendant said "no." When told they wanted to check on Pam's welfare, defendant responded, "Pam passed away." Sergeant Byers asked defendant where Pam was and defendant started crying and asked Sergeant Byers if he believed in "spirits."

In the master bedroom, Deputy Fulton saw a six-foot-long object covered with a blanket. The object underneath the blanket was wrapped in black plastic garbage bags and duct tape. There was a candle at one end of the object and a crucifix taped at the other end. The odor of a dead human body was in the room. More crosses had been spray painted on the walls throughout the house. Incense had been used inside the house. Officers continued to search for Pam but were unsuccessful and no one else was found.

About 4:45 a.m., Michael Lensing, a homicide detective, arrived. Lensing spoke with defendant and a search warrant was thereafter obtained. The object under the blanket was the partially decomposed body of Pam Krantz which exhibited signs of physical trauma.

The court denied the suppression motion, finding: 1) the community caretaking exception applied, citing People v. Ray (1999) 21 Cal.4th 464; 2) Harmon had apparent authority to consent to police entry into the residence in that defendant had given a key to Harmon; and 3) exigent circumstances justified entry.*fn1


Defendant contends his conviction must be reversed because the trial court erroneously denied his motion to suppress. He argues the evidence did not support an exception to the warrant requirement for the officers' initial entry. We conclude consent (actual or apparent authority) justified the warrantless entry.


Standard Of Review

"'"An appellate court's review of a trial court's ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] 'The [trial] court's resolution of each of these inquiries is, of course, subject to appellate review.' [Citations.] [¶] The court's resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review."' [Citation.]" (People v. Ayala (2000) 24 Cal.4th 243, 279.)

"Because a warrantless entry is presumptively unreasonable within the meaning of the Fourth Amendment [citations], the People bear the burden of establishing that exigent circumstances or another exception to the warrant requirement justified the entry. [Citation.]" (People v. Coddington (2000) 23 Cal.4th 529, 575, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) The prosecution must demonstrate the exception by a preponderance of the evidence. (United States v. Matlock (1974) 415 U.S. 164, 177-178 [39 L.Ed.2d 242, 253].)

Consent satisfies the Fourth Amendment's requirement of reasonableness. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 [36 L.Ed.2d 854, 858].) "Voluntariness [of consent] is a question of fact to be determined from all the circumstances. . . ." (Id. at pp. 248-249 [36 L.Ed.2d at p. 875].) Whether consent justifies entry is a question of law subject to our independent judgment. (People v. Wilkins (1993) 14 Cal.App.4th 761, 772-773.)


The Search Was Consensual

The prosecution "is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." (United States v. Matlock, supra, 415 U.S. at p. 171 [39 L.Ed.2d at pp. 249-250].)

Consent is also valid where "'the facts available to the officer at the moment'" would "'"warrant a man of reasonable caution in the belief"' that the consenting party had authority over the premises[.] [Citation.]" (Illinois v. Rodriguez (1990) 497 U.S. 177, 188 [111 L.Ed.2d 148, 161].)

Defendant does not allege that the officers coerced or intimidated Harmon into providing the key to the house or into consenting to the officers' entry into the house. Instead, relying upon People v. Roman (1991) 227 Cal.App.3d 674, defendant claims that Harmon did not have actual or apparent authority to consent to the officers' entry into the house. And, citing People v. Jaquez (1985) 163 Cal.App.3d 918, 928, defendant claims that any authority Harmon had was limited to cleaning, painting, and discarding items.

In Roman, the defendants rented a garage in a commercial building. They explained to the landlord that they needed the premises to replace an engine in a truck. The landlord let them take immediate possession and lent them locks for the garage but he did not tell them that he kept a key to the locks. There was no understanding that the landlord could enter. They moved their property into the garage, partially paid for a month, and promised to pay the rest later that week. When the defendants failed to pay the remaining rent due, the landlord and the owner unlocked the garage and entered the space. Finding truck parts and tools, the owner was concerned about illegal activities and contacted an officer, explaining what had happened. The owner unlocked the garage door for the officer who found stolen parts. The officer did not ask the owner if he had retained the authority to unlock the door with a key. The officer based his entry on two grounds, a warrantless administrative inspection under the Vehicle Code and the apparent authority of the owner to give consent. (People v. Roman, supra, 227 Cal.App.3d at pp. 677-678, 680, 681.) Roman rejected both grounds. (Id. at pp. 679, 681.) Citing the general rule that "a landlord has no authority to consent to a police entry of premises occupied by a tenant," Roman found the officer's belief in the owner's authority to consent to the officer's entry was not reasonable. (Id. at pp. 680-681.)

The People distinguish Roman. Citing no authority other than Rodriguez, the People simply state, "[i]n view of Harmon's possession of a working key to the front door," the question of whether the officers "were warranted in reasonably believing Harmon had authority over the premises" "was not even a close question."

Roman is not on point. It involved the general rule that a landlord/tenant relationship, without more, does not authorize a landlord to consent to a search during the tenancy. Here, there was no landlord/tenant relationship between defendant and Harmon.

Harmon was a longtime friend of defendant's. Defendant gave Harmon a key to the house and told him to enter the house to paint, remove carpets, and discard whatever items of property left by defendant and the victim, who were moving away. Defendant told Harmon that the victim was "gone." Once defendant left, the house would be unoccupied and Harmon had total use, access and control of the house; defendant assumed the risk that Harmon might permit the house to be inspected by others including the police. (United States v. Matlock, supra, 415 U.S. at p. 171, fn. 7 [39 L.Ed.2d at p. 250, fn. 7]; U.S. v. Kim (9th Cir. 1997) 105 F.3d 1579, 1580-1582 [the defendant assumed the risk that third party would consent to search storage lockers where third party rented lockers on the defendant's instructions and kept lease papers and the keys on occasion]; see also United States v. Sledge (9th Cir. 1981) 650 F.2d 1075, 1080, fn. 10.) Harmon had common authority over the house and had actual authority to give third party consent to the officers' entry.

Defendant misplaces his reliance upon Jaquez to support his claim that Harmon's authority was limited to his entry for cleaning, painting, and discarding items.

Jaquez involved the authority of a real estate agent to authorize police entry into house listed as occupied but seemingly vacant where the agent, using a key from a multiple listing lockbox on the front door, had seen lots of stereo equipment and televisions. Suspicious the items had been stolen, the agent called the police and when the officer arrived, the agent used the key and opened the door, permitting the officer to enter. (People v. Jaquez, supra, 163 Cal.App.3d at pp. 922-925.) In rejecting a finding of actual authority, Jaquez determined that "the authority of a real estate agent to authorize entry to a house listed for sale is limited . . . as is all consensual authority, by the terms of the consent and the purpose for which it was given. [Citations.] A real estate agent is authorized to consent to the entry of persons the agent believes in good faith to be potential purchasers of the property." (Id. at p. 928.) Jaquez also rejected the claim of apparent authority, noting that the officer had been shown the listing which indicated the house was occupied and that the officer should have known that an agent's authority is limited to allowing entry of persons the agent believes are interested in purchasing the property. (Id. at p. 929.)

Harmon's story to Deputy Fulton and Sergeant Byers was confirmed. Harmon recounted that defendant said that he and Pam were moving and that Pam was already gone. Harmon said a U-haul and truck were parked at the residence when he was there but upon the officers' arrival, there were no such vehicles, the house was dark, and no one answered the knocks on the door or turned on any lights in response. Harmon's story was confirmed in another respect -- the key fit and unlocked the deadbolt. The officer could reasonably believe that Harmon had the authority over the premises which appeared to be unoccupied. Jaquez is distinguishable.


The judgment is affirmed.

We concur: RAYE , P. J. MAURO , J.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.