People v. Hopper

reporter’s transcript. Gist of the matter is that four minor girls escaped from a custodial facility for juveniles in Stockton. Two nights later police officers found three of the girls (Cathy, Marsaida and Esther) and defendants Hopper, Suazo and Vasquez under somewhat compromising circumstances at the home of Vasquez. The officers took the three girls and the three defendants to the police station, where the girls made statements to the officers. About 5 :30 that morning two of the officers passed the house again. Noticing an open front window and knowing that Vasquez was in jail, they knocked on the door. A person who identified himself as Samuel Barry opened the door. The officers asked permission to enter the house and search. Barry did not object. Over an objection on the ground of unlawful entry and search, Officer Castle testified that he found Flores, the fourth of the appellants, in bed with the fourth girl, Bosalie. This discovery prompted the arrest of Flores and Barry. The latter was subsequently acquitted.

At the trial in the municipal court Cathy and Marsaida were called as prosecution witnesses. Both refused to identify the defendants. When asked if she had made a statement to the officers on the night in question, each stated that she did not remember. In response to further direct examination, each remained mute or indicated that she did not want to answer. Over defense objections, one of the officers was then permitted to relate the statements the two girls had made at the police station. Cathy’s statement did not implicate any defendant and denied indulgence in sex or alcohol. Marsaida, however, had told the police of being picked up in a park by defendants Hopper, Suazo and Vasquez, of drinking liquor with them and of accepting an invitation to go to the house of Vasquez. Admissibility of these statements is one of the two issues on appeal.

People v. Johnson, 68 Cal.2d 646 [ 68 Cal.Rptr. 599 , 441 P.2d 111 ], was decided May 28, 1968, after defendant’s trial and the superior court affirmance of their conviction. By the standard enunciated in Johnson, the trial court erred in permitting evidence of the girls ’ extrajudicial statements.

Evidence Code section 1235 is designed to allow evidence of a witness’ prior inconsistent statement not only to impeach the witness but also for the truth of the statement’s content.^[1]

Johnson holds that in criminal trials section 1235 cannot be constitutionally invoked for the latter purpose; that use of the witness’ prior hearsay statement deprives the accused of his Sixth Amendment right to confront and cross-examine the witness, as that right has been delineated by the federal Supreme Court in such eases as Douglas v. Alabama, 380 U.S. 415 [ 13 L.Ed.2d 934 , 85 S.Ct. 1074 ], Pointer v. Texas, 380 U.S. 400 [ 13 L.Ed.2d 923 , 85 S.Ct. 1065 ], and Bridges v. Wixon, 326 U.S. 135 [ 89 L.Ed. 2103 , 65 S.Ct. 1443 ], Although Johnson was applied to exclude the witness’ prior sworn testimony as substantive evidence in the criminal trial, its rationale applies with equal vigor to the witness’ prior extrajudicial statement. (Bridges v. Wixon, supra, 326 U.S. at pp. 153-154 [89 L.Ed. at pp. 2114-2115] ; People v. Woodberry, 265 Cal.App.2d 351 , 360 [ 71 Cal.Rptr. 165 ]; People v. Green^[2] (Cal.App.) 71 Cal.Rptr. 100 ; Wigmore on Evidence (3d ed.) § 1018(b), fn. 3, p. 688; see McCormick, The Turncoat Witness: Previous Statements as Substantive Evidence, 25 Tex.L.Rev. 573 .)

The People argue that the prior statements of Cathy and Marsaida were admitted for impeachment only, hence that the Johnson rule is inapposite. The settled statement shows that the attorneys’ courtroom debate over admissibility revolved around the question whether a party may impeach a witness who claims forgetfulness but does not testify adversely; that the trial court admitted the statements without limiting their purpose to impeachment. Since People v. Johnson had not yet restricted the scope of Evidence Code section 1235 in criminal cases, there was no apparent reason for the trial judge, as finder of fact, to abstain from considering the statements as substantive evidence against the defendants. We cannot assume that the judge limited this evidence to the narrow purpose of weighing credibility. There was little reason for him to do so, for the girls’ courtroom testimony hardly extended beyond a claim of lost memory.^[3] To give weight to

settled statement creates at least a reasonable possibility that Marsaida’s inadmissible statement substantially influenced the finding of guilt of Hopper, Suazo and Vasquez.

Neither girl’s prior statement implicated Flores. According to the settled statement, Officer Castle’s testimony was the only evidence against him. The officers had found him in bed with Rosalie on their second matinal visit to the house of Vasquez. There is no reasonable possibility that the girls’ earlier statements to the police influenced Flores’ conviction. The error was harmless as to him. Flores’ appeal, however, raises an additional question: validity of the police entry which produced his detection and arrest.

The People point to the consent of Barry, an occupant of the house, as justification for police entry without a warrant. Absence of a warrant puts the burden of showing jTistification on the prosecution. (People v. Faris, 63 Cal.2d 541 , 545 [ 47 Cal.Rptr. 370 , 407 P.2d 282 ]; Badillo v. Superior Court, 46 Cal.2d 269 , 272 [ 294 P.2d 23 ].) The Fourth Amendment is not violated by a warrantless entry and search of a dwelling if made with the consent of a third party whom the police reasonably and in good faith believe has authority to consent. (People v. Hill, 69 Cal.2d 550 , 555 [ 72 Cal.Rptr. 641 , 446 P.2d 521 ] ; People v. Gorg, 45 Cal.2d 776 , 783 [ 291 P.2d 469 ].) It is thus incumbent upon the prosecution to point to the settled statement—the evidentiary record on appeal—to demonstrate that Officer Castle and his companion reasonably and in good faith believed that Barry had authority to consent to their search of the house which they knew belonged to the jailed Vasquez.

The settled statement produces no information to meet the prosecution’s burden of justification. It contains a skeletal narrative furnishing no inference on the score of the officers’ reasonable belief in Barry’s authority.^[4] An appellate court cannot by speculation and surmise fill gaps in a settled statement. (Chaffin v. Wallace Finance Co., 136 Cal.App.2d Supp. 928 , 930 [ 289 P.2d 313 ].) The record on appeal shows no adequate consent to the search.

Alternatively, the People justify the entry and