Super. Ct. No. MF007940A APPEAL from a judgment of the Superior Court of Kern County. Stephen P. Gildner and Jerold L. Turner, Judges.*fn2
The opinion of the court was delivered by: Franson, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Following denial of his suppression motion (Pen. Code,*fn3
§ 1538.5), appellant, Florencio Rios, pleaded no contest
to possessing a firearm after being previously convicted of a violent
offense (§ 12021.1, subd. (a); count 1) and resisting or obstructing a
peace officer (§ 148, subd. (a)(1); count 2). He admitted to having
been previously convicted of four serious or violent felonies (§§ 667,
subds. (c)-(j), 1170.12, subds. (a)-(e)) and having served four prior
prison terms (§ 667.5, subd. (b)). Sentenced to prison for 25 years
to life plus three years and ordered to pay various fines and fees, he
now appeals, claiming his suppression motion was wrongly denied and
that, because section 12021.1 has been replaced by section 12021, the
trial court lacked fundamental subject matter jurisdiction and so the
judgment is void. For the reasons that follow, we conclude that
Rios's Fourth Amendment rights were not violated, and that he cannot
raise the statutory claim because he failed to obtain a certificate of
probable cause. Accordingly, we affirm.
We publish to address Rios's contention that his suppression motion should have been granted because (1) the prosecution failed to prove the scope and precise terms of the search condition of the juvenile probationer in whose residence Rios was present, and (2) Rios's detention and pat search breached the limited power and authority conferred on probation officers under California law.
I.MOTION TO SUPPRESS EVIDENCE
It is settled that a trial court hearing a motion to suppress evidence acts as the finder of fact. Under standard principles of appellate review, we uphold its factual findings, whether express or implied, if they are supported by substantial evidence. (Cf. People v. Johnson (1980) 26 Cal.3d 557, 578.) We then exercise our independent judgment and "measure the facts, as found by the trier, against the constitutional standard of reasonableness" to determine whether the search and seizure were lawful. (People v. Lawler (1973) 9 Cal.3d 156, 160.)
Evidence adduced at the hearing on the motion shows that on July 14, 2007, Kern County Deputy Probation Officer Terry Michael Morris was assigned to the High Risk Juvenile Supervision Unit. At approximately 9:30 that morning, he and five other probation officers went to a residence on C Street in Rosamond, where juvenile probationer R.R. resided. Before going to that location, Morris had reviewed R.R.'s juvenile record, and so was aware that the conditions of R.R.'s probation included orders not to associate with gang members and search terms. In addition, during a home visit by officers on May 11, 2007, R.R. had admitted being under the influence of methamphetamine, and drug paraphernalia and gang tagging had been found in the house.
Upon arriving at R.R.'s home on July 14, one of the officers knocked and announced they were from probation, and someone let them in. Morris was the third officer to enter, whereupon he made contact with Rios, who was sitting on a couch to the right of the front door. When Morris asked who he was, Rios responded that he had just gotten there and was not doing anything. Morris asked Rios's name and address, whether he was on probation or parole, and his purpose for being in the residence; Rios's response to each question was that he was not doing anything. The answer was often accompanied by an expletive directed at Morris. Given the heat of the day, Morris found it unusual that Rios was wearing layers of clothing. In addition, Rios had a tattoo over one eyebrow that read "One Way In, One Way Out," and a tattoo of three dots on the web of one hand. Based on his training and experience, Morris believed these to be gang related.
As Morris moved to be in front of Rios, Rios turned his body away and leaned forward slightly.*fn4 Each time Morris took a step further in front of him, Rios leaned forward farther, pushing his right forearm against his waist and turning his shoulder away from Morris. When Morris asked him not to do that and informed him that he was being detained and that Morris was going to check his identification through the sheriff's department, Rios turned his back to Morris and leaned his upper body down on the couch with his right arm pressed against his stomach.
Based on everything he had noticed, including Rios's clothing, evasiveness, and mannerisms, Morris believed Rios was trying to hide a weapon. Morris asked Rios to please stand up and allow Morris to pat him down for Morris's safety. Rios responded, "Fuck you, I am not doing anything, man." Believing Rios had a weapon and concerned for his own safety and that of the other officers, Morris grabbed Rios's left hand and twisted his wrist. He repeatedly ordered Rios to the ground, but Rios kept saying, "Fuck you, I am not doing anything," and attempting to pull away.
Another officer helped Morris take Rios to the ground and handcuff him. Rios was face down on the floor but kept turning his upper body, making it difficult for Morris to pat him down. Morris stood him up and started patting him down; Rios leaned forward suddenly and a handgun wrapped in a blue bandanna fell out of the front of his shirt area. Morris then discovered a switchblade on Rios.
At the hearing on the suppression motion, the People conceded that there was no arrest or search warrant for Rios at the relevant time, and no evidence was presented that the probation officers possessed any kind of warrant with respect to R.R. or his residence. Because the "'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,'" "[i]t is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." (Payton v. New York (1980) 445 U.S. 573, 585-586, fns. omitted.) This principle extends to warrantless entries. (Illinois v. Rodriguez (1990) 497 U.S. 177, 181.) Because the officers here lacked a warrant, the People bore the burden of establishing, by a preponderance of the evidence, an exception to the warrant requirement. (People v. Camacho (2000) 23 Cal.4th 824, 830; People v. Jordan (1990) 217 Cal.App.3d 640, 645; see Lego v. Twomey (1972) 404 U.S. 477, 488-489.) Consent constitutes such an exception. (Illinois v. Rodriguez, supra, 497 U.S. at p. 181.)
The People presented evidence that R.R., who resided at the residence in which the search and seizure took place, was subject to a search condition of probation, which constitutes advance consent. (See People v. Bravo (1987) 43 Cal.3d 600, 605 (Bravo).) At the suppression hearing, Rios did not challenge the entry into the residence, but instead limited his challenge to his "detention" after entry. On appeal Rios now argues, however, that because the prosecution failed to prove the precise terms of R.R.'s warrantless search condition, the warrantless entry, and resulting detention and pat search of Rios, violated the Fourth Amendment.
But Rios cannot now challenge the lawfulness of the entry on appeal because he made no objection to it in the trial court. (See People v. Scott (1993) 17 Cal.App.4th 405, 410-411.) Accordingly, we assume the officers' entry into R.R.'s residence was lawful, and we examine the extent to which Rios can challenge what took place after the entry.*fn5
1.Fourth Amendment rights are personal and may not be vicariously asserted. (Rakas v. Illinois (1978) 439 U.S. 128, 133-134.) "[A] court may not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant's own constitutional rights. [Citations.] And the defendant's Fourth Amendment rights are violated only when the challenged conduct invaded his expectation of privacy rather than that of a third party. [Citations.]" (United States v. Payner (1980) 447 U.S. 727, 731.) A defendant bears the burden of establishing a legitimate expectation of privacy in the area searched. (People v. McPeters (1992) 2 Cal.4th 1148, 1172, superseded by statute on another point as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107; People v. Madrid (1992) 7 Cal.App.4th 1888, 1895-1896.) Being legitimately on the premises, without more, is insufficient. (Rakas v. Illinois, supra, 439 U.S. at pp. 143, 148; People v. Koury (1989) 214 Cal.App.3d 676, 686.)
In the present case, we can reasonably infer that Rios was legitimately on the premises, since he was seated inside on a couch when officers entered and there was no evidence that whoever gave admittance to the officers complained about his presence. Beyond this, however, there was no suggestion Rios was anything more than a casual, temporary visitor.*fn6 Therefore, he had no legitimate expectation of privacy. Accordingly, he failed to establish that his own Fourth Amendment rights were violated by a search of the residence, and so he cannot now challenge that search. (People v. Rivera (2007) 41 Cal.4th 304, 308, fn. 1.)
2.Rios can, however, challenge the seizure (detention) and search of his person, which led to discovery of the firearm.*fn7 (People v. Hannah (1996) 51 Cal.App.4th 1335, 1340 (Hannah).) The Fourth Amendment prohibits unreasonable seizures. (People v. Celis (2004) 33 Cal.4th 667, 673.) "'A seizure occurs whenever a police officer "by means of physical force or show of authority" restrains the liberty of a person to walk away.' [Citations.] Whether a seizure has taken place is to be determined by an objective test, which asks 'not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person.' [Citation.] Thus, when police engage in ...