(Super. Ct. No. 09F05741)
The opinion of the court was delivered by: Nicholson , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The trial court sentenced defendant Joseph Edward White to a prison term of 62 years to life for committing a lewd and lascivious act upon a child (Pen. Code, § 288, subd. (a)), possessing child pornography (Pen. Code, § 311.11, subd. (a)), and various other enhancements. In this appeal, defendant claims the trial court erred when it denied his motion to suppress evidence and his motion to quash a search warrant. We conclude the warrantless searches and seizures and the subsequent search pursuant to a warrant did not violate defendant's Fourth Amendment rights, and we affirm the judgment.
Eight-year-old Haley lived at an apartment complex in Sacramento. Sometime in April 2009, a resident of the apartment complex, Nicole Buzzetta, known to Haley as Nicki, came by Haley's apartment and asked Haley if she wanted some kittens. Haley went to Nicki's apartment with her sister to look at the kittens. The kittens were too young at that time to be taken from their mother.
On May 12, 2009, Haley told her mother she was going to the apartment complex's parking lot to show a friend her glasses. She also was going to see the kittens at Nicki's apartment.
A short time later, Haley returned home very scared. She told her mother that Nicki's boyfriend, defendant, had grabbed her by the hand and asked her what she was doing in the parking lot. He led Haley to a green truck or sport utility vehicle in the lot. While he sat inside the truck and she stood outside it, he stuck his hand down her shorts and touched her vagina.
On June 16, 2009, detectives visited Buzzetta's apartment three times. On the second visit, they located defendant inside the apartment's master bedroom. On the third visit later that day, detectives retrieved a laptop computer that was owned by Buzzetta from the apartment's master bedroom. The detectives did not have a warrant on any of these three occasions.
On July 7, 2009, detectives executed a search warrant at the apartment. In the apartment's master bedroom, they retrieved computer equipment and CDs which stored or contained numerous images of child pornography. They also found several written documents associated with defendant in the same bedroom. Because this appeal is based on these searches and seizures, we set forth the relevant facts in detail below.
The trial court sentenced defendant to a state prison term of 50 years to life on the lewd and lascivious act conviction and a corresponding finding that defendant was a habitual sexual offender within the meaning of Penal Code section 667.71. The court also sentenced defendant to a consecutive determinate term of 12 years based on the upper term of three years for the child pornography count, three years for the habitual offender allegation, five years for a prior conviction within the meaning of Penal Code section 667, subdivision (a), and one year for a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
Pursuant to Penal Code section 1538.5, defendant moved to suppress all evidence obtained during the warrantless searches of the apartment's master bedroom on June 16, 2009. He also moved to quash the search warrant executed on July 7, 2009, claiming its supporting affidavit contained intentionally or recklessly false assertions of fact.
The trial court denied the motions. Of relevance here, the court found the detectives' entries into the apartment and its master bedroom on June 16, 2009, were with consent voluntarily provided by Buzzetta's cotenant, Tommie Butler, who is also defendant's mother. The court found that although Buzzetta's laptop computer was seized upon the detectives' request for it, defendant had no reasonable expectation of privacy in the laptop. Also, the court determined the affidavit supporting the search warrant did not contain false or reckless assertions of fact.
Defendant disagrees with the trial court's rulings. He contends: (1) the cotenant, Butler, had no authority, either legal or apparent, to consent to the search of the master bedroom; (2) Butler did not consent voluntarily; (3) defendant had a reasonable expectation of privacy in the laptop computer that was seized without a warrant; (4) the affidavit for the search warrant contained false assertions of fact made with knowing or reckless disregard for the truth; and (5) the evidence should have been suppressed because he was arrested inside his residence without a warrant. We address and reject each argument.
Defendant claims the trial court erred when it determined Buzzetta's cotenant and defendant's mother, Tommie Butler, could consent to the search of his bedroom. We conclude the search did not violate the Fourth Amendment as it was reasonably conducted pursuant to Butler's apparent authority to consent and defendant's actual authority to consent.
A. Additional background information
Sacramento County Sheriff's Detective Darin Pometta learned from Haley that the molestation happened next to a green Chevy Tahoe she identified in the apartment complex's parking lot, and the person who had touched her was associated with a woman identified as Nicki who resided in apartment number 104. Pometta contacted a manager of the apartment complex and learned the listed tenants for apartment 104 were Nicole Buzzetta and Tommie Butler. Defendant was identified in a letter in the tenant file as a caregiver.
About 9:00 a.m. on June 16, 2009, Detective Pometta and his partner, Detective Anthony Saika, knocked on the door of apartment 104. The detectives were wearing plain clothes with their firearms on their belts and had their badges in view. Tommie Butler invited the detectives inside. They introduced themselves to Buzzetta and Butler, who agreed to answer some questions for them. Pometta met with Buzzetta outside in the parking lot while Saika met with Butler inside the apartment.
Detective Pometta asked Buzzetta if she had any boyfriends or male acquaintances that were associated with the apartment. She said she did not. Meanwhile, Butler, in her conversation with Detective Saika, told the officer her son, defendant, was engaged to Buzzetta. He was the only male associated with the apartment that would come and visit. Butler said defendant was then out of town looking for work and she had no way of contacting him. Saika also learned the green Chevy Tahoe that had been identified by Haley was registered to Buzzetta's father but it was, for practical purposes, Buzzetta's car.
Detective Saika went outside to the parking lot and informed Detective Pometta what he had learned. Pometta then asked Buzzetta about her relationship with defendant. Buzzetta said she had a relationship with him but downplayed its significance. Saika asked her if she was engaged to defendant. She said she was not.
Following these conversations, the detectives returned to their station. After comparing notes, they decided to focus their investigation on defendant. A records check found no information associating defendant with apartment 104. However, the check did reveal defendant had outstanding warrants and was a registered sex offender from Santa Cruz County. To follow up on that information, the detectives returned to the apartment complex that day to ask Buzzetta and Butler additional questions about defendant.
Butler answered their knock on the door around 11:00 a.m. Detective Pometta told her they had additional questions and asked if they could enter the apartment to speak with her. Butler opened the door and gestured with her hand in an inviting manner, and the detectives entered the apartment.
Detective Pometta asked Butler if there was anyone else inside the apartment. Butler said her daughter and her two grandsons were sleeping in a bedroom in the back. Pometta asked if he could look in the different bedrooms and verify. Butler said he could. She directed him down the hallway to a room on the right, and he entered the room. He saw a ...