Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF128141, Elisabeth Sichel and Bernard Schwartz, Judges.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
A jury convicted defendant and appellant Manuel Pedroza Rosales, Jr., of two counts of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a), counts 1 & 3), possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 2), possessing methamphetamine for sale (Health & Saf. Code, § 11378, count 4), and possessing less than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b), count 5). Counts 1 and 2 arose from an incident on January 24, 2006; counts 3 through 5 arose from an incident on January 5, 2006. Defendant contends the trial court erred in denying his motion, pursuant to Penal Code section 1538.5, to suppress the evidence seized on January 24, 2006. We affirm with directions to correct the abstract of judgment.
BACKGROUND
At 6:30 p.m., on January 24, 2006, a police officer and his partner pulled over a black, four-door Mitsubishi Galant that was speeding. Defendant was in the front passenger seat; the car belonged to him. The driver was on probation. The driver was asked to exit the vehicle and was searched. Defendant was asked to exit the vehicle and complied. The police officer told defendant that because the “driver was on probation, that [the officer and his partner] were going to search the front part of the vehicle, the passenger compartment of the vehicle and [defendant] mentioned that it was okay.” The officer found “a phone case that was up on the visor of the front—in front of the front passenger seat. And inside that visor there were little Ziplock baggies that contained a couple other Ziplock baggies.” The officer did not remember where on the visor the phone case was located, or whether it was located closer or further from the driver’s side. The officer also could not recall if a phone was inside the case with the baggies, but the baggies had been protruding out of the case. The baggies contained methamphetamine.
The officer showed defendant and the driver what he had found, and told defendant he “wasn’t going to ask any questions about it.” He then “mentioned something to the effect of the driver being on probation.” Defendant then said, “It’s mine.” The officer then “asked, ‘Do you want to fall down for that?’ Or, ‘Do you want to take the rap for this?’ or something to that effect, something like that. And [defendant] said, ‘Yes.’ ”
At the hearing on the motion to suppress, the police officer testified and counsel presented arguments. The trial court took the matter under submission and announced its ruling at a continued hearing date. The trial court denied the motion: “The Court finds that the police can detain for a reasonable time. The time was reasonable. They discovered that the driver was on probation, and the only way to see if the driver was in compliance with the terms of his probation was to detain the passenger as well. [¶] They searched the car as part of the probation search, that’s [People v. Matelski (2000) 82 Cal.App.4th 837]. The area search[ed] was under the joint control of both the driver and the passenger, and the Court notes that there is a reduced expectation of privacy for things transported in a car, and that’s [People v. Baker (2008) 164 Cal.App.4th 1152]. [¶] And the Court believes that this particular case is different from [People v. Spicer (1984) 157 Cal.App.3d 213]. Spicer did not involve a probation search. This case is exactly—almost exactly as the facts described in Baker, and therefore, the Court finds that the search was appropriate and legal.”
STANDARD OF REVIEW
“ ‘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.’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 384.)
DISCUSSION
Defendant contends the search of the cell phone case exceeded the scope of a search pursuant to the driver’s probationary search condition because there is no substantial evidence to support the trial court’s conclusion that “the cell phone case was reasonably under exclusive or joint control of the driver.” The People contend that the trial court properly found the cell phone case was under the probationer’s joint control and, that even if the officers violated the Fourth Amendment by searching defendant’s cell phone case, the violation was inadvertent so the exclusionary rule would not apply. We agree with the People.
“ ‘Pursuant to article I, section 28, of the California Constitution, a trial court may exclude evidence under Penal Code section 1538.5 only if exclusion is mandated by the federal Constitution.’ [Citation.] Our Constitution thus prohibits employing an exclusionary rule that is more expansive than that articulated by the United States Supreme Court. [Citation.]” (People v. Robinson (2010) 47 Cal.4th 1104, 1119.) “ ‘As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is “reasonableness.” ’ [Citation.] [¶] ‘Reasonableness... is measured in objective terms by examining the totality of the circumstances’ [citation], and ‘whether a particular search meets the reasonableness standard “ ‘is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.’ ” ’ [Citations.]” (Id. at p. 1120.) If the search is unreasonable, we determine whether the exclusionary rule applies by “focus[ing] on whether the facts presented warrant application of the exclusionary rule ‘to deter deliberate, reckless, or grossly negligent conduct, or... recurring or systemic negligence.’ [Citation.]” (Id. at p. 1126.)
The parties both rely on People v. Baker, supra, 164 Cal.App.4th 1152. The defendant in Baker was female and the only passenger in a car driven by a male parolee. (Id. at p. 1156.) After the car was stopped for speeding, the defendant exited the car so that it could be searched pursuant to the driver’s parole search condition. (Ibid.) The defendant had been sitting in the front passenger seat with her purse at her feet; she left her purse behind when she exited the car. (Ibid.) After nothing was found in the car, the purse was searched and methamphetamine was found in a tinfoil packet located inside a pocket. (Ibid.) The Baker court held that “there could be no reasonable suspicion that the purse belonged to the driver, that the driver exercised control or possession of the purse, or that the purse contained anything belonging to the driver.” (Id. at p. 1159.) The Baker court determined that the validity of the search of an item, potentially belonging to someone not themselves subject to a search condition but riding in a vehicle with someone who was, is determined by “whether there is joint ownership, control, or possession over the searched item with the parolee or probationer.” (Ibid.)
The trial court found that “[t]he area search[ed] was under the joint control of both the driver and the passenger.” The testimony of the officer that the cell phone case was located on the passenger visor is sufficient evidence supporting the trial court’s factual finding because the trial court could infer that this area was accessible to the driver and thus subject to the driver’s control. Unlike the purse in Baker, there is nothing in the record to indicate that the cell phone case was distinctive such that it obviously could not have been related to the driver. Furthermore, to the extent the cell phone case may have had some indicia of ownership, or was somehow inaccessible (due to its location on the visor or otherwise) to the driver, there is nothing indicating that the officer’s decision to search the cell phone case was done for any reason other than to examine the driver’s probation compliance. Accordingly, suppression of the evidence, through application of the exclusionary rule, is not necessary “ ‘to deter deliberate, reckless, or grossly negligent conduct, or... recurring or systemic negligence.’ [Citation.]” (People v. Robinson, supra, 47 Cal.4th at p. 1126.)
ABSTRACT ERRORS
Although not raised by the parties, we note that the abstract of judgment is not accurate. Defendant was convicted of two counts of transporting methamphetamine in violation of Health and Safety Code section 11379, subdivision (a); section 11379 also prohibits importation, selling, furnishing, administering, and giving away specified controlled substances. While defendant’s convictions under counts 1and 3 were specifically for transportation of methamphetamine, the indeterminate abstract states “IMPORT/SALE/DIST/CONTROL SUB INTO STATE” on the lines describing the count 1 and 3 convictions. Defendant’s count 2 conviction was for possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a), but the abstract states “POSSESS CONTROLL.” Defendant’s count 4 conviction was for possessing methamphetamine for sale in violation of Health and Safety Code section 11378, but the abstract states only “POSSESSION OF CONTROLLED SUBSTANCE.” While all of defendant’s convictions were for violations of the Health and Safety Code, the abstract states “PC” in the “CODE” column referencing Penal Code rather than Health and Safety Code. We have the inherent power to correct clerical errors to make records reflect the true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, the indeterminate abstract of judgment should be corrected.
DISPOSITION
The superior court clerk is directed to correct the abstract of judgment to describe counts 1 and 3 as “Transporting methamphetamine, ” describe count 2 as “Possessing methamphetamine, ” describe count 4 as “Possessing methamphetamine for sale, ” and identify the relevant codes as Health and Safety Code rather than Penal Code. The superior court clerk is then directed to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST J., MILLER J.