Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F07177
CANTIL-SAKAUYE, J.
Defendant Douglas Erwin was tried for robbery (Pen. Code, § 211 -- count one), assault with a firearm (§ 245, subd. (a)(2) -- count two), and possession of a firearm in violation of probation (§ 12021, subd. (d) -- count three) together with multiple enhancements, including the allegation that he personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). The court declared a mistrial after the prosecution discovered a surveillance video previously believed to be missing. Thereafter, defendant pled guilty to robbery in count one and admitted a single enhancement under section 12022.53, subdivision (c) in exchange for a stipulated aggregate prison term of 22 years. The court sentenced defendant in accordance with the agreement: two years for robbery and 20 years for the enhancement.
Hereafter, undesignated statutory references are to the Penal Code.
At the close of the change of plea hearing, the court postponed until sentencing its ruling on the prosecution’s motion to dismiss the remaining counts and enhancements. However, nothing in the sentencing record shows that the court dismissed counts two and three and the enhancements.
The sole issue on appeal is whether the court erred in denying defendant’s section 1538.5 motion to suppress evidence located in the common living area and the master bedroom. We conclude that there was no error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Robbery and Assault:
The following facts were revealed at defendant’s first trial:
F.W. was sitting in her car outside a Circle K in Elk Grove in the early morning hours of July 26, 2005. She worked at the store, but was off-duty at the time. F.W. allowed a short Black man to use her lighter then asked the man if he knew anyone who wanted to buy a bag of marijuana. She gave him her name and phone number. The man returned approximately 10 or 15 minutes later, and demanded her purse at gunpoint. A struggle ensued. A taller, light-skinned man arrived on the scene and told F.W. to open the passenger door. Eventually the taller man pulled the purse from F.W.’s hands. F.W. ran after the two men, yelling, “[Y]ou’re not getting nothing” or “[Y]ou all ain’t nothing but bitches . . . .” The short man shot F.W. in the groin and thigh, and ran away. The crime scene investigator found a .22-caliber shell casing at the scene of the shooting.
B. The Search of Apartment 128:
Before trial, the following evidence was introduced at the hearing on defendant’s motion to suppress:
At approximately 7:00 p.m. on the evening of July 28, 2005, Sacramento Police Officer Zachary Bales was on duty at the Evergreen Shopping Center with his partner Officer Shrum. Bales heard at least three gunshots fired from the direction of apartments across the street. The two officers received a radio dispatch regarding the gunshots at the same time they started driving to the apartments. They advised dispatch that they were responding and asked for back-up units. A copy of the dispatch appeared on Bales’s computer which indicated that the caller described the suspects as a group of five 17-year-old Hispanic males in a black and gray SUV. Given the “computer lag time,” Bales was unsure whether he read all the details at the same time that he received the radio dispatch.
Mr. Shekh, the security guard at the apartment complex, hailed Bales and Shrum when they drove through the gates. Bales testified that he asked Shekh “if he had heard where the shots had come from” and Shekh responded, “[Y]es, they had run into [apartment] 128.” Bales did not ask for details about the physical description of the men that Shekh had seen. Shekh directed the officer to apartment 128. Officer Schrum observed a gray Suburban parked nearby.
Officer Bales noticed children playing in the area and decided to contact the occupants of unit 128 immediately “for the safety of all the individuals” at the apartments. The officers smelled a strong odor of marijuana when they came within 10 feet of the door. Bales knocked, loudly announcing, “Sacramento Police Department . . . open the door.” After about five minutes, a man named Kenneth Carter came to the door and opened it slightly. When he saw Bales, he “raised his hands, opened the door further, and swung his hand backward motioning [Bales] to come in.”
Upon entering the apartment, Bales called for everyone to come out with their hands up. Defendant, his co-defendant and a third man responded by walking out of the apartment. Officer Bales testified that, “all of the subjects stated that they did not live there. They all stated they were on probation.”
Bales and two officers conducted a protective sweep of the apartment while other officers detained the four suspects outside. Bales explained: “There was shots fired in the immediate time frame and [they] had a witness tell [them] that he saw those individuals run into that area. A vehicle matching the description was right there and several subjects came out of the apartment.” During the protective sweep, Bales observed pieces of torn plastic on the floor which looked like narcotics packaging. He also found a plastic bag that contained live ammunition in the back bedroom.
At some point, Officer Shrum informed Bales that the apartment was rented by a woman named Maleka Williams. Officer Bales attempted to contact Williams after he carried out the protective sweep to obtain her permission to conduct a more extensive search of the apartment. However, he was unable to obtain a phone number other than the number for the apartment.
Based on the suspects’ stated probation status, Bales decided to conduct a probation search of the areas under their immediate control. Because there were no locked doors, and the suspects came from the back hallway, the officers searched the entire apartment. They found a .22-caliber revolver in the area between the kitchen and living room. Bales searched what appeared to be the master bedroom and found another handgun and a rifle partly concealed behind the dresser.
Officer Bales contacted Mr. Shekh a second time after the search was over. Bales acknowledged that there was a significant language barrier in conversing with him. This time, Shekh told Bales that he had not heard any gunshots at all.
Defendant moved to suppress evidence collected in the search of apartment 128. Defendant represented in the statement of facts included in his points and authorities that “Officers questioned the men and learned that they were all on searchable probation, and that none of them lived [at the apartment].” (Italics added.) In addition, defendant filed an unsworn declaration in which he described his relationship to Maleka Williams, the tenant in apartment 128. Among other things, defendant stated in the declaration that he had “permission on July 28 to stay with Ms. Williams at her apartment until [his] mother could get enough money together to get [him] out of state to stay with a relative for a while.” Defendant had spent the night at Williams’s apartment in the past and “was free to come and go, . . . to use the facilities . . . and keep some possessions there such as necessary clothing and toiletries.” The declaration went on to say, “On the afternoon of July 28, I expected privacy inside Ms. Williams’ apartment. It was ‘my house’ at that time as far as I was concerned.”
The court denied defendant’s motion to suppress the evidence collected at Williams’s apartment. First, the court found that as an overnight guest, defendant had a reasonable expectation of privacy in the apartment, including the master bedroom, and was therefore entitled to challenge the search. With respect to the search itself, the court found: (1) given the fact that shots were fired and there were children in the area, the officers had an “absolute duty to make sure that any weapons that may be about would be found”; (2) Carter invited the officers into the apartment; (3) the officers properly conducted a protective sweep to determine whether there were additional people in the apartment; (4) because the suspects were all on probation, the officers “[had] the right to search the apartment”; and (5) once Officer Bales found the ammunition in plain sight, he “clearly had the right to search then the entire presence for the purpose of other weapons. And he did so and further weapons were found.” The court expressly found that there was no significance in the conflicting description of the suspects, Shekh’s subsequent statement that he had not heard any gun shots, or the failure to make a more exhaustive attempt to locate Williams.
DISCUSSION
Defendant argues that the court erred in denying his motion to suppress because: (1) Carter’s consent to enter did not provide a basis for searching the entire apartment; (2) there were no exigent circumstances to justify the search that resulted in discovery of the firearms; (3) the suspects’ probationary status did not justify the full search of the apartment; and (4) none of the four suspects had authority or control over the master bedroom. Appearing to contradict the last point, defendant asserts in his reply brief that the court properly found that as an overnight guest, defendant had a reasonable expectation of privacy that allowed him to challenge the search.
On appeal, we defer to the trial court’s factual findings if they are supported by substantial evidence, but independently review as a question of law whether, on the facts found, the search conforms to the constitutional standard of reasonableness. (People v. Alvarez (1996) 14 Cal.4th 155, 182; People v. Stewart (2003) 113 Cal.App.4th 242, 248 (Stewart).) “We may sustain the trial court’s decision without embracing its reasoning.” (People v. McDonald (2006) 137 Cal.App.4th 521, 529.) Accordingly, we will affirm the superior court’s ruling on defendant’s motion to suppress if it is correct on any theory of applicable law, “even if the ruling was made for an incorrect reason.” (Ibid.)
The first question is whether, as an overnight guest, defendant is entitled by law to challenge the search of apartment 128. “An illegal search or seizure violates the federal constitutional rights only of those who have a legitimate expectation of privacy in the invaded place or the seized thing. [Citations.] The legitimate expectation must exist in the particular area searched or thing seized in order to bring a Fourth Amendment challenge. [Citation.] Defendant bears the burden of showing a legitimate expectation of privacy. [Citation.]” (People v. Roybal (1998) 19 Cal.4th 481, 507 (Roybal).) To establish a reasonable expectation of privacy, defendant must demonstrate that his subjective expectation is objectively reasonable, that is, “‛justifiable’ under the circumstances.” (Smith v. Maryland (1979) 442 U.S. 735, 740 [61 L.Ed.2d 220, 226-227].) Because the historical facts concerning standing are established by uncontradicted evidence, we independently review the trial court’s ruling that defendant was entitled to challenge the search. (People v. McPeters (1992) 2 Cal.4th 1148, 1172 (McPeters).)
In deciding whether a defendant has demonstrated a reasonable expectation of privacy, the court must consider whether: (1) the defendant has a property or possessory interest in the place searched; (2) whether he has the right to exclude others from that place; (3) whether he has shown the subjective expectation that the place would remain free from governmental invasion; (4) whether he took normal precautions to maintain his privacy; and (5) whether he was legitimately on the premises. (Roybal, supra, 19 Cal.4th at p. 507.) Whether an overnight guest has a reasonable expectation of privacy under this test turns on the facts of the particular case. (See, e.g., McPeters, supra, 2 Cal.4th at pp. 1171-1172; see also Stewart, supra, 113 Cal.App.4th at pp. 250-253.)
Here, defendant’s declaration in support of the suppression motion described his connection with the apartment in broad terms. From defendant’s perspective, it was “his house” where he was “free to come and go” as he liked. Nothing in the declaration suggests that defendant’s use of the apartment was limited to the common areas in the front. Indeed, Officer Bales testified that defendant and the two other men came from “the back hallway where the two bedrooms were” when he told them to come out. We conclude that the record supports the court’s finding that defendant had a reasonable expectation of privacy in the entire apartment.
The second question is whether the search of the common areas of the apartment violated defendant’s Fourth Amendment rights. Consent is a well-established exception to the warrant requirement. (People v. Woods (1999) 21 Cal.4th 668, 674.) A person on probation may validly consent in advance to warrantless searches and seizures in exchange for the chance to avoid serving a state prison term. (Ibid.) The People have the burden of showing that the officers conducted the search pursuant to a valid exception to the warrant requirement. (People v. Williams (1999) 20 Cal.4th 119, 127-128, 136.)
The record supports the trial court’s finding that Carter consented to the officer’s entry into the apartment. At that point, Bales called for the suspects to come out, and then conducted a protective sweep to ensure the safety of the officers and nearby residents. (See People v. Ledesma (2003) 106 Cal.App.4th 857, 863.) Whether the officer has a reasonable suspicion to justify a protective sweep depends on the totality of the circumstances. (Ibid.) Here the protective sweep was justified by the fact that recent shots had been heard in the vicinity, Shekh hailed the officers and directed them to apartment 128, a vehicle matching the dispatch description was parked nearby, children were playing in the area, there was a five minute delay before Carter opened the door of the apartment, and three additional men showed themselves only after the officers told them to come out with their hands up.
When the protective sweep revealed a bag of live ammunition in plain view, the officers conducted what Bales called a probation search based on the suspects’ statement that they were on probation and did not live at the apartment. The officers found a .22-caliber handgun in the common area, and the additional weapons in the master bedroom.
Whether the probation search was justified turns on whether the officers understood that the suspects were subject to a search condition. (See People v. Sanders (2003) 31 Cal.4th 318, 332.) Although Bales’s testimony that defendant was on “probation” may have been ambiguous, defendant conceded in his points and authorities in the trial court that it was “searchable probation.” The court properly relied on that concession in ruling that the search was proper.
DISPOSITION
The judgment is affirmed. We remand with directions that the court dismiss counts two and three and the remaining enhancements.
We concur: BLEASE, Acting P.J., BUTZ, J.