Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 06F09275 & 06F01807
SCOTLAND, P. J.
After his motion to suppress evidence was denied, defendant Evans Lowery pled no contest to possession of a firearm by a convicted felon (case No. 06F01807) and sale of cocaine base (case No. 06F09275). Finding that defendant’s prior juvenile adjudication of second degree robbery constituted a “strike” within the meaning of the “three strikes law,” the trial court sentenced defendant to state prison for an aggregate term of seven years and four months.
On appeal, defendant contends (1) his suppression motion should have been granted, (2) the true finding on the strike allegation is not supported by sufficient evidence, a point conceded by the People, and (3) his prior juvenile adjudication cannot be treated as a strike. We shall affirm the convictions, reverse the strike finding, and remand for a retrial of the strike allegation and for resentencing.
FACTS FROM SUPPRESSION HEARING
In February 2006, the manager of a Rancho Cordova apartment complex told law enforcement officers Travis Sanders and Glen Petree that he suspected two residents, defendant and S.Z., weredealing drugs at their apartment. The officers returned to their station, checked the residents’ criminal records, and confirmed that S.Z. lived at the apartment. The record check also revealed that defendant and S.Z. were on probation, with S.Z.’s probation including a search condition, and that the juvenile court had issued a warrant for her arrest.
The officers returned to the complex, and the manager gave them a key to the apartment. When Deputy Sanders knocked and received no answer, he opened the door using the key, announced the presence of law enforcement officers, and entered the apartment.
The apartment had one bathroom and two rooms designed as bedrooms, the doors to which were open.
One of the designed bedrooms had “no TV, no box spring or mattress or anything to suggest it was used for living.” We will call it the bedless room. “[S]ome female clothes” were in the closet and more female clothing was scattered on the floor of this room. Deputy Sanders described the articles of clothing as “mostly female”; he recalled some “glittery tank tops” on the floor. Deputy Petree similarly testified the clothes in the bedless room “appeared to be female clothing. They were patterns, pastel clothes and flowers and things that you normally don’t see men wearing.” In the pocket of clothing hanging in the closet, Petree found a bus pass bearing S.Z.’s name.
The other room, which we will call the bedroom, had a box spring and mattress, a stereo, and a television. There were magazines on the floor, although none was addressed to defendant or S.Z. Clothing was on the floor, and Deputy Petree found “a lot of clothing in the closet,” but he did not recall there being any “female clothing.” He also found mail that was addressed to defendant “and other various items like everybody would have in their house . . . with his name on it.” Among the items was a notice that the apartment manager had issued to defendant and a person named Genesis for “unauthorized persons living inside the apartment.”
Deputy Petree lifted a shoe box in the bedroom closet, noticed it was heavy, and opened it, revealing a loaded .32 caliber revolver wrapped in a red bandana.
As the facts of the drug conviction are not at issue on appeal, we do not summarize them.
DISCUSSION
I
Defendant contends his motion to suppress the firearm was erroneously denied. In his view, because items of female clothing were observed only in the bedless room, there was no reason to suspect that S.Z. had common authority over the closet in the bedroom; thus, the search condition of her probation did not authorize the officers to search that closet. The People disagree, asserting that because it was apparent defendant and S.Z. were sleeping together in the bedroom, it was reasonable for the officers “to suspect that two people who share a bedroom, as [defendant] and [S.Z.] did, also share the closet in the same bedroom.”
In ruling on a defendant’s motion to suppress evidence, the trial court makes factual findings, selects the applicable law, and determines whether the seizure violated the applicable rules of law. (People v. Williams (1988) 45 Cal.3d 1268, 1301.) The trial court’s “resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, viz., the reasonableness of the challenged police conduct, is also subject to independent review. [Citations.]” Accordingly, “‘it is “the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness.”’ [Citation.]” (Ibid.)
The parties largely agree as to the facts in this case and the applicable rules of law. They agree the search was based on S.Z.’s consent to warrantless searches of her home and person; their only dispute is whether “her” home extends to the closet where the gun was found.
The California Supreme Court has “relied upon the ‘common authority’ theory of consent in recognizing that if persons live with a probationer, shared areas of their residence may be searched based on the probationer’s advance consent. [Citations.]” (People v. Robles (2000) 23 Cal.4th 789, 795-796; see People v. Woods (1999) 21 Cal.4th 668, 675-676; United States v. Matlock (1974) 415 U.S. 164, 171 & fn. 7 [39 L.Ed.2d 242, 249-250 & fn. 7].)
However, unlike an adult, “a minor has no choice whether or not to accept a condition of probation that subjects him to a warrantless search;” thus, a minor does not give advance consent to a search condition. (In re Tyrell J. (1994) 8 Cal.4th 68, 83, overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 139.)
The record in this case suggests, but does not confirm, that S.Z. was a minor. This is so because Deputy Sanders testified his search revealed that she “had a juvenile warrant; and she was on probation also, searchable probation.” And the probation report describes her as “the juvenile subject at the apartment.”
Accordingly, the theory of consent to search appears not to apply. Nevertheless, we conclude the seizure was a lawful product of the search condition of S.Z.’s probation.
“Even though a person subject to a search condition has a severely diminished expectation of privacy over his or her person and property, there is no doubt that those who reside with such a person enjoy measurably greater privacy expectations in the eyes of society. For example, those who live with a probationer maintain normal expectations of privacy over their persons. In addition, they retain valid privacy expectations in residential areas subject to their exclusive access or control, so long as there is no basis for officers to reasonably believe the probationer has authority over those areas. [Citations.] That persons under the same roof may legitimately harbor differing expectations of privacy is consistent with the principle that one’s ability to claim the protection of the Fourth Amendment depends upon the reasonableness of his or her individual expectations. [Citations.]” (People v. Robles, supra, 23 Cal.4th at p. 798; italics added.)
Here, as we will explain, there was a basis for the officers to reasonably believe S.Z., the probationer, shared authority over the bedroom closet. (People v. Robles, supra, 23 Cal.4th at p. 798.)
Defendant acknowledges that “[i]n the abstract, [the People] may be correct” in asserting it is reasonable to suspect that two people who share a bedroom, as defendant and S.Z. obviously did, also share the closet in that bedroom. But defendant argues that inference does not apply in this case because the record indicates that S.Z. kept her belongings in the bedless room and only defendant used the closet in the bedroom. We are not persuaded.
It is true that the clothing in the bedless room and its closet was distinctly female. However, there was no corresponding evidence that the clothing or other items in the bedroom and its closet were distinctly male. Deputy Petree testified only that there was “a lot of clothing” in the bedroom closet; he could not recall whether any of it was female clothing. Deputy Sanders testified only that there was clothing on the floor of the bedroom (he did not specify whether it was male or female clothing) and that he did not see anything he could associate with S.Z. These facts are insufficient to establish that only defendant had authority over the closet.
Under the circumstances presented to the officers, they reasonably could suspect that defendant and S.Z. shared authority over the closet in the bedroom where they slept together, that S.Z. put additional personal items in the bedless room, and that the search condition of S.Z.’s probation entitled the officers to search both the bedroom and its closet as well as the bedless room and its closet. Hence, the trial court did not err in denying defendant’s motion to suppress evidence of the firearm found in the bedroom closet.
II
Defendant contends, and the People concede, there was insufficient evidence that defendant had a prior strike within the meaning of the three strikes law. Specifically, there was insufficient evidence that his prior juvenile proceeding resulted in a declaration of wardship.
“The prosecution bears the burden of proving beyond a reasonable doubt that a defendant’s prior convictions were for either serious or violent felonies. When a defendant challenges the sufficiency of the evidence to uphold a finding that his prior convictions qualified as strikes, the test on appeal is whether a reasonable trier of fact could have found that the prosecution sustained its burden. We review the record in the light most favorable to the trial court’s findings. [Citation.]” (People v. Towers (2007) 150 Cal.App.4th 1273, 1277.)
Penal Code section 667, subdivision (d) states in part:
“(3) A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if:
“(A) The juvenile was 16 years of age or older at the time he or she committed the prior offense.
“(B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) [of Penal Code section 667, subdivision (d)] as a felony.
“(C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law.
“(D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.” (Italics added; see In re Jensen (2001) 92 Cal.App.4th 262, 264.)
To prove the prior juvenile adjudication, the prosecutor submitted People’s Exhibit 1, which consisted of certified court records from Contra Costa County. No other evidence was presented.
The prosecutor also submitted People’s Exhibit 2, which was identical to Exhibit 1. One exhibit was to be filed in each superior court case.
The certified court records pertained to jurisdictional proceedings against defendant, a minor, in Contra Costa County. An April 2001 minute order shows that the juvenile court sustained allegations of second degree robbery and personal use of a deadly and dangerous weapon. The court made the jurisdictional finding that defendant came within Welfare and Institutions Code section 602. Finding that defendant was a resident of San Francisco County, the juvenile court ordered the matter transferred to that county for disposition.
Rule 5.610(c)(2) of the California Rules of Court states: “If the court decides to transfer a delinquency case, the court must order the transfer before beginning the disposition hearing without adjudging the child to be a ward.”
Since the prosecutor did not introduce evidence regarding the disposition hearing in San Francisco, there was no evidence that defendant had been “adjudged a ward of the juvenile court,” as required by Penal Code section 667, subdivision (d)(3)(D).
Because retrial of a strike allegation is permissible after an appellate determination that proof of a prior juvenile adjudication was insufficient in that declaration of wardship had not been shown (People v. Barragan (2004) 32 Cal.4th 236, 240, 259), we will reverse the true finding on the strike allegation and remand the matter for a retrial on the strike allegation.
III
For guidance on remand, we address defendant’s claim that his prior juvenile adjudication cannot support his second-strike sentence because he had no right to a jury trial in the juvenile proceeding.
Defendant acknowledges that this court, and other courts of appeal, have rejected constitutional challenges, like his, to the application of the three strikes law on the basis of a juvenile adjudication. (People v. Palmer (2006) 142 Cal.App.4th 724, 730; see People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1315-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1075-1079; People v. Bowden (2002) 102 Cal.App.4th 387, 393-394.)
As both parties recognize, this issue is currently pending before the California Supreme Court in several cases. (E.g., People v. Grayson, review granted Dec. 19, 2007, S157952; People v. Tu, review granted Dec. 12, 2007, S156995; People v. Nguyen, review granted Oct. 10, 2007, S154847.)
Pending guidance from our state Supreme Court, we remain persuaded by this court’s reasoning in People v. Palmer, supra, 142 Cal.App.4th 724. Therefore, we conclude that defendant’s objection to the juvenile adjudication was properly overruled.
DISPOSITION
The judgment of conviction is affirmed. The true finding on the strike allegation is reversed, the sentence is vacated, and the matter is remanded to the trial court for a retrial of the strike allegation and for resentencing.
We concur: BLEASE, J., BUTZ, J.