Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA061046, Lawrence Mira, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, J.
After the trial court denied his motion to suppress evidence, Robert B. Derossett pleaded guilty to misdemeanor possession of a controlled substance, and was placed on summary probation. In the appeal before us today, Derossett challenges the trial court’s decision not to suppress the drugs. We affirm.
FACTS
On April 30, 2007, Los Angeles County Deputy Sheriff Ernesto Masson and his partner were on patrol in a marked vehicle, when they drove their car into a public park and saw a female standing near a truck which was parked in a space in the parking lot. Deputy Masson got out of his vehicle, and was walking around the parked truck when he saw Derossett standing toward the front of the parked truck, near a large tree. At about the same time, Derossett saw Deputy Masson, and Derossett’s “facial expressions were one of someone who appeared nervous. His eyes got a little wider and [he] look startled [and] his body motion [became] kind of jittery.” After he had made “eye contact” with Deputy Masson, Derossett placed a small tubular container of mini-M&Ms which he had been holding in his hands into the branches of the nearby tree. Deputy Masson went and retrieved the M&Ms container. When Deputy Masson looked inside the container, he found a glass pipe for smoking methamphetamine and a baggie of a substance that looked like methamphetamine.
On May 17, 2007, the People filed an information charging Derossett with felony possession of a controlled substance. On July 17, 2007, Derossett filed a written motion to suppress the drugs found in the M&Ms container, arguing that the People had the burden to justify the warrantless search. On June 5, 2008, the trial court conducted an evidentiary hearing on Derossett’s motion to suppress. During the course of the hearing, Deputy Masson testified to the facts summarized above, and the court heard extensive argument from the prosecutor and defense counsel. At the conclusion of the hearing, the trial court denied Derossett’s motion based on the court’s finding that Derossett did not have an expectation of privacy in the M&Ms container because he had “abandoned” it. Following the court’s ruling, Derossett agreed to plead guilty to a misdemeanor count of possession of a controlled substance, and the trial court placed Derossett on summary probation for two years, on condition he serve five days in county jail, with five days of presentence credit.
DISCUSSION
I.
Derossett contends the evidence does not support the trial court’s finding that he “abandoned” the M&Ms container, meaning the trial court wrongly denied his motion to suppress. We disagree.
Whether or not Derossett “abandoned” his M&Ms container is not determined by his property rights, but rests instead on a determination whether he “ ‘ “ ‘so relinquished his interest in [the M&Ms container] that he no longer retained a reasonable expectation of privacy in it at the time of the search.’ ” [Citations.]’ ” (People v. Parson (2008) 44 Cal.4th 332, 346, internal quotation marks omitted.) “ ‘The question whether property is abandoned is an issue of fact, and the [trial] court’s finding must be upheld if supported by substantial evidence.’ ” (Ibid.)
An exegetic discussion is not needed. Viewed in the light most favorable to the trial court’s ruling, the court could have reasonably found, and did reasonably find, that Derossett abandoned his M&Ms container. A person who puts a candy container into the branches of a tree in a public park does not retain a reasonable expectation of privacy in the container because anyone could find it, take it, and open it up. We have no doubt that Derossett subjectively hoped that no one would find his M&Ms container, but this does not mean that he had a reasonable expectation of privacy in the container under objective, social norms. (In re Baraka H. (1992) 6 Cal.App.4th 1039 [crumpled paper bag left on the ground, among some leaves, in a grass area next to a ramp leading to a walkway over a public road]; People v. Shaw (2002) 97 Cal.App.4th 833 [drugs buried in common area backyard of multi-unit apartment complex].)
Derossett’s argument that he “made concerted effort to protect the container from the deputy’s inspection” is interesting, but unavailing, and his reliance on Smith v. Ohio (1990) 494 U.S. 541 (Smith) does not persuade us to find “nonabandonment” as a matter of law. In Smith, the defendant “threw” a brown paper grocery bag on the hood of his own car while he turned to talk to a police officer. Under those circumstances, the Supreme Court observed that a person who puts private property on the hood of his own car while talking to a police officer “clearly has not abandoned that property.” (Id. at pp. 543-544.) In our view, Smith does not help Derossett because placing a shopping bag on the hood of one’s own car is simply not an act of the same character, privacy-wise, as placing a small candy container in a tree in a public park. The former act embodies objective indicia of a desire to retain a privacy interest; the latter does not. (People v. Parsons, supra, 44 Cal.4th at p. 346.)
II.
In their respondent’s brief on appeal, the People contend the trial court erred by failing to impose a series of mandatory fees, and/or surcharges and/or assessments. We agree that these types of sentencing errors generally are not waived by a failure to draw them to the trial court’s attention. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157; People v. Stewart (2004) 117 Cal.App.4th 907, 912.) Accordingly, we remand this case to the trial court, with directions to the People to set forth specifically for the court any and all fees, surcharges and penalty assessments (in the appropriate amounts) which they desire to have included in any corrected sentencing orders.
DISPOSITION
The cause is remanded to the trial court for further proceedings in accordance with this opinion. In all other respects, the judgment is affirmed.
We concur: RUBIN, Acting P. J. O’NEILL, J.
Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.