People v. Cowper CA1/2

Filed 11/15/13 P. v. Cowper CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, A137398 v. SAMUEL ELIJAH COWPER, (Solano County Super. Ct. No. VCR209766) Defendant and Appellant.

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))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.

1 All further unspecified statutory references are to the Penal Code.

1

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.”