Opinion
A147798
10-25-2017
THE PEOPLE, Plaintiff and Respondent, v. MARINA CHEUNG YIU, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 051422682)
I.
INTRODUCTION
Appellant Marina Yiu appeals the trial court's denial of her motion to suppress both evidence found at the time of her arrest and her post-arrest custodial statement. She argues that her landlord and co-resident could not consent to allow officers to enter and arrest her within her rented bedroom for the crime of vandalizing cars. We conclude that the officers did not have consent to enter Yiu's bedroom, but even if the car keys found in her jacket at the time of her arrest should have been suppressed, any error in admitting the keys at trial was harmless beyond a reasonable doubt. We further conclude the officers did have probable cause to arrest Yiu, so her subsequent Mirandized statement was admissible at trial. We affirm.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History
The Contra Costa County District Attorney's Office filed an information charging Yiu with felony vandalism for damage to multiple cars. (Pen. Code, § 594, subd. (b)(1).) Yiu filed a motion to suppress evidence. (§ 1538.5.) The court held an evidentiary hearing on March 27, 2015, and denied the motion. The court held a jury trial and the jury found Yiu guilty of the charge. The court sentenced Yiu to probation.
All further statutory references are to the Penal Code.
B. Suppression Hearing
Hercules Police Department Officers Greg Fernandez and Darin Tellez responded to a call on March 4, 2014, at approximately 2:43 a.m. that an Asian female named "Marina" was committing vandalism by keying cars on Cottage Lane. Joseph Montelongo, Yiu's landlord and co-resident, had called the police about the cars. Montelongo witnessed Yiu scratch several of the cars. He whistled at her and she fled around a corner. When Officer Tellez arrived at Cottage Lane, he saw several cars with long key scratches on them. Officer Fernandez saw approximately 30 cars that had been scratched.
After verifying the damage to the cars, Officers Fernandez and Tellez went to Montelongo's home and spoke to him at the front door. Officer Fernandez testified Montelongo "allowed us inside his residence, and led us to a room where he had stated that that's the room that Miss Yiu and her son is [sic] currently renting from him." Officer Tellez provided similar testimony that Montelongo allowed them inside the home and told them Yiu was upstairs, then Montelongo escorted them to her room.
When they arrived at the room, the door was "slightly open." Officer Tellez knocked on the door and said "police" and pushed the door open to see who was inside. Yiu's son was sitting on the bed in front of a computer with headphones on. Officer Tellez motioned for Yiu's son to remove his headphones and asked if Marina was in the room. Yiu's son answered "yes" and pointed to the person on the bed. At this point, the officers entered the room and contacted Yiu to arrest her.
Yiu's son asked if she could take a jacket with her and he handed Officer Tellez Yiu's jacket. Officer Tellez searched the jacket for weapons and felt a sharp item, which was a group of keys. The keys were covered in paint chips and paint chips fell onto his hands.
At the suppression hearing, defense counsel argued that Montelongo did not have the authority to consent to the police entry into Yiu's room. Opening the door to her bedroom was an illegal search and everything flowing from that should be suppressed. In this case, Yiu's "house" was her individual room within Montelongo's home and Montelongo could not give consent to have someone enter Yiu's room.
The trial court stated that there is a difference between probable cause to arrest and probable cause to search. Under section 836, subdivision (a)(3), an officer may arrest a person without a warrant upon probable cause the person has committed a felony. The officers here saw a number of cars vandalized with key scratches and could estimate the amount of damage exceeded $950. The court stated that in order to arrest a person in their home, the officers must have a warrant or a valid consent. Yiu's co-resident, Montelongo, gave his consent. "The analysis on whether or not he could give consent to search her room, is different than whether he could give consent for the officers to contact her in her home." The court found "there is valid consent by the owner and co-resident who contacted the police in the first place, and invited the officers in to contact the defendant for the purpose of making the arrest."
The officers did not search Yiu's room and could properly search Yiu's jacket incident to arrest. The trial court concluded: "They have a right to arrest her, under the code. They have consent to enter to arrest her, by her co-resident, the owner of the home. And they have the right to search her pursuant to her arrest." The court denied the motion to suppress.
C. Trial
We need only provide a brief summary of the testimony at trial. Montelongo testified that he witnessed Yiu scratching cars and contacted the police. The 911 call was played for the jury. Officer Tellez confirmed the damage to a total of about 40 cars.
Yiu attempted to discredit Montelongo's testimony by claiming they were engaged in a landlord-tenant dispute. But at trial both Montelongo and his wife testified that they never asked Yiu or her son to move from the bedroom. Yiu's son continued to live with the Montelongos even at the time of trial.
The prosecution played portions of Yiu's custodial statement for the jury. After being read her Miranda warnings, Yiu agreed to speak to the police. Yiu stated that she was angry because she had lost her home to foreclosure and because people had "keyed" her car. The officer asked her, "[W]hy would you think, because somebody damaged your car, that you could just walk down the street . . . and scratch[] everybody's car? . . . [¶] Why did you think that was a good idea?" She responded, "I have a lot of anger built up inside me." She stated that she did not know what is right and what is wrong anymore. Later in the interview, the following exchange occurred:
"[Officer]: . . . You scratched many cars. Many, many. Every car on that block you scratched, huh?
"[Yiu]: No. Why? Uh . . .
"[Officer]: Yeah you did. Yes. Yes you did. You scratched every single one.
"[Yiu]: No.
"[Officer]: Which ones didn't you scratch?
"[Yiu]: I . . . didn't scratch every single car on the block.
"[Officer]: Well, how many did you scratch then?
"[Yiu]: I don't know."
Yiu testified that when the officers asked her about scratching the cars, she stated she was angry. The officer stated: "Be honest with me right now, did you scratch those cars tonight because you were angry?" Yiu responded, "I was more than angry. I was more than, like I said, sometimes I feel like killing somebody."
III.
DISCUSSION
A. Standard of Review
" 'The standard of appellate review of a trial court's ruling on a motion to suppress evidence is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]' [Citations.]" (People v. Redd (2010) 48 Cal.4th 691, 719, fn. omitted, quoting People v. Glaser (1995) 11 Cal.4th 354, 362.)
"A defendant has the burden at trial of establishing a legitimate expectation of privacy in the place searched or the thing seized. [Citations.] The prosecution has the burden of establishing the reasonableness of a warrantless search. [Citations.] The state may carry its burden of demonstrating the reasonableness of a search by demonstrating that the officer conducting the search had a reasonable belief that the person consenting to the search had authority to do so; it is not required that the state establish that the person consenting to the search had actual authority to consent. [Citations.]." (People v. Jenkins (2000) 22 Cal.4th 900, 972 (Jenkins).)
"[I]n reviewing the trial court's suppression ruling, we consider only the evidence that was presented to the trial court at the time it ruled. [Citation.]" (In re Arturo D. (2002) 27 Cal.4th 60, 77-78, fn. 18.)
B. Denial of Yiu's Motion to Suppress
1. The Homeowner's Consent to Enter the House Was Not Sufficient to Enter Yiu's Rented Room
The Fourth Amendment prohibits the police from entering a suspect's home without a warrant to make a felony arrest. (Payton v. New York (1980) 445 U.S. 573 (Payton).) "In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house." (Id. at p. 590.) There are, however, exceptions to the warrant requirement including a bona fide emergency and consent. (People v. Ramey (1976) 16 Cal.3d 263, 275 (Ramey).)
A person who possesses common authority over a residence may consent to police entry to conduct an arrest or search of the residence. (United States v. Matlock (1974) 415 U.S. 164, 170 (Matlock).) "[I]t is settled that 'the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.'. . ." (Jenkins, supra, 22 Cal.4th at pp. 976-977, quoting Matlock, at p. 170.)
There is no dispute here that Montelongo gave his consent for the police to enter the home and he had common authority over the residence. The issue before us is whether Montelongo's consent allowed the officers to enter Yiu's separate bedroom that she rented from him where she lived with her son. Yiu argues that Montelongo could not give consent to entry into her room. We agree.
In People v. Escudero (1979) 23 Cal.3d 800 (Escudero), officers were in pursuit of Escudero, a burglary suspect. They arrived at the ranch owned by his employers, the Perhams. (Id. at p. 805.) There were two residences on the property, the ranch house and a manager's house. Escudero lived in the manager's house, effectively renting it from the Perhams because the quarters were part of his compensation as an employee. (Id. at pp. 805-806.) Mr. Perham entered the manager's house and allowed the officers to enter without Escudero's consent. (Id. at p. 805.) The officers arrested Escudero.
Our Supreme Court reiterated the general rule that a landlord has no authority to consent to a police entry of premises occupied by a tenant. (Escudero, supra, 23 Cal.3d at p. 807.) This applies to a tenant who leases a house, rents an apartment, or lives in the garage. (Ibid.) The owners had "no right to give the police permission to enter such housing for law enforcement purposes while it is lawfully occupied, whether or not the tenant or his family are present at the time." (Id. at p. 808.)
"[A] landlord may not give valid third-party consent to a police search of a house rented to another. [Citations.]" (People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1200.) The same principle applies to prevent a finding of third-party consent where the leased property is an apartment unit, a garage, or a hotel room. (Ibid.) Similarly, a university does not have common authority over a student's dormitory room because under Matlock, the University does not have mutual use of the room or joint access and control for most purposes. (Walker, at p. 1206.)
Here, the trial court found that the arrest was lawful because Montelongo, as the owner and co-resident, could consent to the officer's entry into the home for purposes of arresting Yiu. The court, however, relied on a faulty premise that "[t]he analysis on whether or not [Montelongo] could give consent to search her room, is different than whether he could give consent for the officers to contact her in his home." The court was mistaken; the analysis for an entry to arrest is the same as an entry to search. (See Payton, supra, 445 U.S. at p. 589.) Montelongo could consent to the officers' entry to arrest or search the common areas of the home, but he could not consent to entry into Yiu's rented bedroom.
"[I]t has been held, outside the parent-child context, that adults sharing a residence but maintaining separate bedrooms do not have the apparent authority to consent to the search of one another's bedrooms, at least when officers have no other information about their living arrangements. (See, e.g., Beach v. Superior Court (1970) 11 Cal.App.3d 1032, 1034-1035 . . . [adult sister sharing apartment with adult brothers does not have apparent authority to consent to search of their bedroom]; U.S. v. Almeida-Perez (8th Cir. 2008) 549 F.3d 1162, 1172; U.S. v. Barrera-Martinez (N.D.Ill. 2003) 274 F.Supp.2d 950, 962 [when adult roommates have separate rooms, exclusive control is presumed].)" (In re D.C. (2010) 188 Cal.App.4th 978, 983-984.)
Yiu had common use of the house, but the bedroom was her private "residence" for herself and her son. There was no evidence that it was used for any other purpose. Even though Montelongo owned the house, he did not have "joint access or control" to Yiu's bedroom under Matlock. (Matlock, supra, 415 U.S. at p. 172.) Yiu's bedroom was not a common area of the house where she assumed the risk that Montelongo could consent to a search or seizure. (See People v. Veiga (1989) 214 Cal.App.3d 817, 828 [any co-resident may authorize a search of joint property because this is the "risk" assumed by a person who shares common premises with another].)
Furthermore, Yiu was not only in her bedroom but she was in bed asleep when the officers knocked and opened the door to the room. A person's bed is "the sanctuary of the right to privacy." (United States v. Quaempts (9th Cir. 2005) 411 F.3d 1046, 1048.) Montelongo's consent did not extend to the entry into Yiu's room to wake her and arrest her.
Although Montelongo could not consent to entry into Yiu's rented bedroom, her adult son could do so. Yiu and her son shared the bedroom. This issue was not addressed by the trial court, but it was raised by respondent as an independent basis for the consensual entry.
Yiu argues that the officers unlawfully opened the door to the bedroom, which was an improper entry before contacting Yiu's son. There was, however, conflicting testimony about whether the door to the bedroom was fully closed. Officer Fernandez testified that Officer Tellez knocked on the door and then they entered the room. He could not recall whether the door was shut. Officer Tellez described the door as "slightly open." He knocked on the door and said "police" and pushed the door open, for officer safety, to see if anyone was present behind the door. After he pushed the door open, he saw Yiu's son sitting on the bed with headphones on. Officer Tellez said "police" again and motioned for the son to remove his headphones. Officer Tellez asked if Yiu was in the room, and Yiu's son said "yes" and pointed to the person laying in the bed. At that point, the officers entered the room.
Yiu argues that her son's action of pointing to his mother on the bed was not akin to his consent for the officers to enter the room. However, a "consent to enter may be indicated by actions as well as by words. [Citation.]" (People v. Baca (1961) 198 Cal.App.2d 391, 396.)
Yiu's son was not, however, asked by the officers if they could enter the room; he was asked if his mother was present. One reasonable inference is that by responding and identifying his mother as the person in the bed, Yiu's son expected the officers to enter the room and make contact with his mother. But there are other possible inferences; the officers could have stated or yelled Yiu's name to wake her and asked her to come into the hallway.
Yiu's son was not asked for his permission to enter to the bedroom. He was only asked his mother's location. The officer's right to enter is limited to the scope of the consent given. (People v. Superior Court (Kenner) (1977) 73 Cal.App.3d 65.) In Kenner, Kenner's brother allowed the police to enter the home because they asked to "talk to" to Kenner. (Id. at p. 69.) Without any discussion, the police entered and immediately arrested Kenner. (Ibid.) A person may be willing to allow police to enter to "talk" but not to arrest. (Ibid.) The brother's consent did not authorize the officers to immediately arrest Kenner following entry into the home. (Ibid.)
Here, to the extent Yiu's son's response to the officer's question of whether his mother was in the room was a consent to enter the bedroom; it was not a consent to immediately arrest his mother. The officers did not ask Yiu's son to consent to their entry into the bedroom, after opening the door, and did not inform him they sought to arrest his mother. Thus, he did not provide knowing and voluntary consent to her arrest.
2. The Officers Belief that the Landlord/Co-resident Could Give Consent Was Not Reasonable
Even if a homeowner does not have common authority over the entire home, the consent is still valid if the officers reasonably believed the third party exercised common authority. (Illinois v. Rodriguez (1990) 497 U.S. 177, 183-186 (Rodriguez).) "The question before us is whether 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 property as to which consent is given. . . ." (Jenkins, supra, 22 Cal.4th at pp. 977-978, quoting Rodriguez, supra, 497 U.S. at p. 188.)
Yiu argues that the officers did not have apparent authority to enter her room based on a reasonable belief they had Montelongo's authority to enter and arrest her. Respondent argues that this case is analogous to People v. Gorg (1955) 45 Cal.2d 776 (Gorg). In Gorg, the defendant lived in a room in the Stevens home in exchange for doing gardening, but it was unclear whether he was a "tenant, servant, or guest." (Id. at pp. 778, 783.) Defendant was arrested for shoplifting and consented to the officer's search of his bedroom. (Id. at p. 779.) Two days later, Stevens discovered a bucket where defendant was growing marijuana and showed it to the officers. (Ibid.) Later that day, Stevens gave the officers permission to enter and search the entire house. (Ibid.) Stevens believed he had joint control of defendant's room and there was evidence he had entered the room previously to tidy it up. (Id. at pp. 779, 783.) The court held that under the circumstances, the officers were justified in believing that Stevens had the authority to allow the officers to search his entire home. (Id. at p. 783.)
As explained above in section B.2, there was no evidence here that Montelongo had access or control of Yiu's bedroom. Unlike the defendant in Gorg, where the defendant's status as tenant, servant or guest was unknown, the officers here knew that Yiu rented the bedroom for herself and her son. There was no evidence Montelongo believed he could enter Yiu's bedroom for any purpose. Montelongo agreed to allow the officers entry into his home and he escorted them to the hallway outside Yiu's room, but he did not enter her room.
"In the ordinary case, the police may not reasonably rely on a landlord's claimed authority over a rented room as being a sufficient basis for consent to a search. [Citations.]" (Walker, supra, 143 Cal.App.4th at p. 1209.) In Walker, the court found the police did not have the apparent authority to search a student's dormitory room. "[T]he relationship between the University and the student-resident, defendant, was akin to a landlord-tenant relationship, and the mere fact that [the campus security officer] stated that he had defendant's consent to search the room did not give rise to a reasonable conclusion that that University official could agree to a police search of the room on defendant's behalf. [Citation.]" (Ibid.) Similarly, an officer's assumption that an owner had the right to consent to law enforcement inspection of a garage occupied by a tenant was not reasonable. (People v. Roman (1991) 227 Cal.App.3d 674, 680.) "The general rule is that a landlord has no authority to consent to a police entry of premises occupied by a tenant. [Citation.]" (Ibid.)
Here, if the officers believed that Montelongo could consent to entry into Yiu's rented bedroom that belief was not reasonable. The officers knew that Yiu had rented the bedroom for herself and her son. This conclusion is bolstered by the fact the officers treated the bedroom as if they were seeking entry into a separate residence. Officer Tellez employed knock and announce procedures, by knocking on the door before opening it and staying "police" twice. Under Walker and Roman, the officers should have known the general rule that a landlord or co-resident cannot consent to entry into a private bedroom.
3. No Exception to the Warrant Requirement Applies
We can quickly dispense with respondent's argument that exigent circumstances justified the warrantless entry into Yiu's bedroom.
An arrest within the home is unreasonable in the absence of exigent circumstances, meaning an emergency situation requiring swift action to prevent injury, destruction of property, or escape. (Ramey, supra, 16 Cal.3d at p. 276.) Officers are not required to get a warrant when they are in "hot pursuit" of a fleeing felon. (Escudero, supra, 23 Cal.3d at pp. 808-809.)
Yiu argues no exigent circumstances justified the warrantless entry into her room. Officers believed that Yiu had keyed numerous cars in the neighborhood and while this amounted to extensive property damage, it was not a violent crime and Yiu posed no danger. We reject respondent's argument that the crime involved danger and/or violence because Yiu possessed an "unknown metal object" (which turned out to be keys) to scratch the cars.
The officers knew Yiu was in her bedroom when they sought to enter the house. It was around 3:00 a.m. and there was no indication that Yiu was going to leave the home before officers could acquire a warrant.
The exception is meant to apply to situations "where the delay occasioned by obtaining a warrant would permit the escape of a suspect in a 'grave offense' who remains 'dangerous to life and limb.'. . ." (People v. Keltie (1983) 148 Cal.App.3d 773, 779 (Keltie), quoting Escudero, supra, 23 Cal.3d 800.) It is not meant to apply where the suspect poses no imminent danger if allowed to temporarily remain at large. (James v. Superior Court (1978) 87 Cal.App.3d 985.)
In addition, there was no continuous or immediate pursuit of Yiu. The officers questioned Montelongo and then went and observed the damage to the cars before returning and seeking entry to the home. (See Welsh v. Wisconsin (1984) 466 U.S. 740, 753 [a claim of hot pursuit is "unconvincing because there was no immediate or continuous pursuit of the petitioner from the scene of a crime"].) Here, there was no pursuit, simply a straightforward investigation that led to Yiu. Under the circumstances of this case, the warrantless entry into Yiu's bedroom was not justified by exigent circumstances.
4. Yiu's Warrantless Arrest in Her Home Does Not Require Suppression of Her Later Mirandized Statement
Yiu argues that her custodial statement should have been suppressed as fruit of the poisonous tree. Once Yiu was arrested in her home, she was taken to the police station and interviewed, after being given Miranda warnings.
In New York v. Harris (1990) 495 U.S. 14 (Harris), the court held that a confession made within the residence at the time of the arrest presumably would be the fruit of the illegality, but a confession made at the stationhouse after Miranda warnings were given was not tainted by the prior illegality. "Nothing in the reasoning of [Payton, supra, 445 U.S. 573] suggests that an arrest in a home without a warrant but with probable cause somehow renders unlawful continued custody of the suspect once he is removed from the house." (Harris, supra, 495 U.S. at p. 18.) The Supreme Court held "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton." (Id. at p. 21.)
Our Supreme Court has reached the same conclusion. Where there is probable cause to arrest, the fact that police illegally enter a home to make a warrantless arrest neither invalidates the arrest itself nor requires suppression of any post-arrest statements the defendant makes at the police station. (People v. Marquez (1992) 1 Cal.4th 553, 568-569 (Marquez).) "[W]e conclude that the lack of an arrest warrant does not invalidate defendant's arrest or require suppression of statements he made at the police station. It would require suppression solely of evidence obtained from searching the home at the time of the arrest." (Id. at p. 569.)
Under Harris and Marquez, the fact that the officers did not have consent or a warrant to arrest Yiu in her home does not mean a subsequent confession must be suppressed, so long as there was probable cause for the arrest. (Harris, supra, 495 U.S. at pp. 17-19); Marquez, supra, 1 Cal.4th at pp. 568-569.) The trial court found that the officers had probable cause to arrest Yiu. Montelongo watched Yiu vandalize the cars and the officers verified the damage, which provided probable cause for the officers to arrest her. Therefore, Yiu's post-arrest statement was properly admitted at trial.
Yiu did not contest the trial court's probable cause finding or address it in her opening brief on appeal. In her reply brief, she argues the officers lacked probable cause to arrest her. --------
5. Even if Yiu's Car Keys Found Pursuant to a Search of Her Jacket Are Fruit of the Poisonous Tree and Should Have Been Excluded, Any Error in Admitting the Evidence Was Harmless Beyond a Reasonable Doubt
Officers can conduct a warrantless search of a suspect incident to a lawful arrest. (United States v. Robinson (1973) 414 U.S. 218, 235.) Yiu argues that because the arrest was unlawful, any search was also unlawful and the car keys recovered from her jacket should have been suppressed as fruit of the poisonous tree.
"[N]ot . . . all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' [Citation.]" (Wong Sun v. United States (1963) 371 U.S. 471, 487-488.) " '[T]he question before the court is whether the chain of causation proceeding from the unlawful conduct has become so attenuated or has been interrupted by some intervening circumstance so as to remove the 'taint' imposed upon that evidence by the original illegality.'. . ." (People v. Brendlin (2008) 45 Cal.4th 262, 269 (Brendlin), quoting United States v. Crews (1980) 445 U.S. 463, 471.) " 'Relevant factors in this 'attenuation' analysis include the temporal proximity of the Fourth Amendment violation to the procurement of the challenged evidence, the presence of intervening circumstances, and the flagrancy of the official misconduct.' [Citation.]" (Brendlin, supra, at p. 269.)
Here, the officers did not discover the car keys in conducting an unlawful search of Yiu's room. In fact, the officers never conducted a search of the room. They arrested Yiu and her son asked if she could take a jacket with her. The son then provided the jacket, with the keys in the pocket, to the officers. Officer Tellez patted down the jacket for weapons and discovered the keys.
The first factor, the timing of the discovery the keys, weighs against a finding of attenuation. This factor does not favor attenuation unless " 'substantial time' elapses between an unlawful act and when the evidence is obtained. [Citation.]" (Utah v. Strieff (2016) 136 S.Ct. 2056, 2062 (Strieff).) The keys were discovered as the officers arrested Yiu and took her into custody.
Respondent argues that the son's actions in independently providing the jacket purged any taint from the police's illegal entry to conduct the arrest. If the officers had searched incident to an illegal entry, the keys would be subject to the exclusionary rule. (Harris, supra, 495 U.S. at p. 20.) But here there was the intervening circumstance of the son providing the jacket to the officers. Respondent argues the son's action weighs in favor of attenuation. It constitutes an intervening circumstance that removes the taint from the keys.
Additionally, the officers did not seek to exploit the illegality of their entry. The attenuation doctrine favors exclusion "only when the police misconduct is most in need of deterrence—that is, when it is purposeful or flagrant." (Strieff, supra, 136 S.Ct. at p. 2063.) Here, the officers did not search the room or interrogate Yiu. They simply sought to arrest her. Their entry was not a pretext to search for incriminating evidence. The officers were operating on the mistaken belief that Montelongo's consent allowed them to arrest Yiu in her room; their conduct was not purposeful or flagrant.
Respondents present a strong argument that the keys did not need to be suppressed as fruit of the poisonous tree. We, however, conclude that even if they should have been excluded as fruit of the illegal entry, any error in admitting the keys was harmless given the other evidence presented.
The erroneous denial of a defendant's motion to suppress is subject to harmless error analysis under the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18 (Chapman). (People v. Neal (2003) 31 Cal.4th 63, 86.) " ' "To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is on what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is 'whether the . . . verdict actually rendered in this trial was surely unattributable to the error." (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 . . . .)' [Citation.]" (People v. Pearson (2013) 56 Cal.4th 393, 463.)
Yiu argues the erroneous admission of her custodial statement and the keys could not be found to be harmless error, but because we conclude the statement was properly admitted, the only potential inadmissible evidence was the car keys. Given the eyewitness to the crime, Yiu's statement to police, and the visible damage to the cars, the erroneous admission of the keys was harmless beyond a reasonable doubt.
Montelongo witnessed Yiu scratching cars and contacted the police. The 911 call was played for the jury. Officers were able to locate the cars based upon Montelongo's description of the location and type of damage. Officer Tellez confirmed the damage to about 40 cars.
Yiu attempted to discredit Montelongo's testimony at trial by claiming they were engaged in a landlord-tenant dispute. But at trial both Montelongo and his wife testified that they never asked Yiu or her son to move from the bedroom. Yiu's son continued to live with the Montelongos even at the time of trial.
In Yiu's custodial statement she admitted she had scratched the cars because she was angry. The officer stated: "Be honest with me right now, did you scratch those cars tonight because you were angry?" Yiu responded, "I was more than angry. I was more than, like I said, sometimes I feel like killing somebody." Yiu also made the admission that she did not scratch every single car:
"[Office]r: Yeah you did. Yes. Yes you did. You scratched every single one.
"[Yiu]: No.
"[Officer]: Which ones didn't you scratch?
"[Yiu]: I . . . didn't scratch every single car on the block.
"[Officer]: Well, how many did you scratch then?
"[Yiu]: I don't know."
The car keys were not significant evidence when compared to Yiu's statements, and Montelongo's eyewitness testimony about the crime. We are satisfied beyond a reasonable doubt that the error was harmless under Chapman. (See People v. Jasmin (2008) 167 Cal.App.4th 98, 114 ["in light of the overwhelming evidence presented at trial, including eyewitness identifications; video surveillance tapes; and ballistic evidence . . . , any error in admitting the challenged evidence did not contribute to the verdict obtained, and was therefore harmless"].)
IV.
DISPOSITION
The judgment is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.