Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Los Angeles Susan Speer, Judge, Martin Herscovitz, Judge
Meredith J. Watts, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Roy C. Preminger, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Michael Mendoza appeals his conviction by plea for identity theft (Pen. Code, § 530.5, subd. (a)) and receiving stolen property (§ 496, subd. (a)). Appellant entered a change of plea after the trial court denied his motion to suppress evidence. (§ 1538.5.) He sentenced to three years state prison. We affirm.
All statutory references are to the Penal Code.
Facts & Procedural History
On the evening of April 7, 2006, Los Angeles Police Detective Chris McKinney observed appellant and Carl Hamilton standing by three vehicles parked in a row at a 7-Eleven parking lot. One of the vehicles was a Mercedes. Appellant and Hamilton touched hands in what appeared to be a narcotics transaction.
Detective McKinney approached and asked if either was on probation or parole. Appellant said he was on parole and consented to a search. He had a matchbox filled with a substance resembling marijuana in his pocket. Hamilton also consented to a search of his person.
Aracely Lopez was seated in the Mercedes and made eye contact with the detective. She leaned forward, appeared to move items around as if trying to hide something, and started talking on her cell phone.
Detective McKinney pointed to the Mercedes and asked whose car it was. Appellant said the Mercedes was not his but he was thinking about buying it. The detective asked Hamilton if the Mercedes was his. Hamilton replied "No."
Lopez acknowledged that she was on probation for receiving stolen property. Detective McKinney asked if he could search the Mercedes. Lopez replied, "It's not mine, go ahead."
Lopez's wallet was on the front passenger seat. The wallet had two credit cards with different names and an identification card issued to Lily Lazarnejed but with Lopez's photo.
The detective found a checkbook issued to Peggy Thompson under the front passenger seat. In the center console area, was a credit card with someone else's name and a bag of identity theft profile information. The detective found $8,000 in the back seat and a car registration listing Hamilton as the owner of the Mercedes.
Officers searched appellant, Hamilton, and Lopez incident to an arrest. Hamilton had a Visa card and a blank check bearing the name of another person. Appellant had a credit card issued to someone else and an arrow key used by postal carriers to access mailboxes. Lopez had a stolen credit card and false driver's license in her bra.
The Chevrolet Prism parked next to the Mercedes belonged to Lopez. Inside the vehicle were personal checks and credit cards issued to other people.
Lopez and Hamilton filed motions to suppress evidence, claiming that the search of the Mercedes violated their Fourth Amendment rights. Appellant joined in Hamilton's motion.
The trial court denied Lopez's motion to suppress on the ground it was a consensual encounter and search. With respect to Hamilton, the trial court found that he lacked "standing" to assert a Fourth Amendment violation. "Hamilton denied it was his vehicle. The officer then goes over, encounters Lopez, and proceeds to search the [Mercedes] for several minutes, at least 10 minutes, if not more. [Hamilton] does nothing to stop him, say . . . that is my vehicle You are searching the wrong car. [¶] I think a reasonable person under the circumstance unless they are attempting to hide the ownership of the vehicle based upon its contents would have spoken up."
In an unpublished opinion, we affirmed Lopez's and Hamilton's convictions. (B195608.) We concluded that Lopez consented to the search and that Hamilton abandoned any Fourth Amendment protected privacy interest when he disavowed ownership of the Mercedes.
The trial court denied appellant's motion to suppress on the ground that "he was on parole. There was also consent to search and a consensual encounter. . . ."
Reasonable Expectation of Privacy
On review, we defer to the trial court's factual findings where supported by substantial evidence and independently determine whether, on the facts found, the search was reasonable under Fourth Amendment standards. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.) To assert a violation of a Fourth Amendment right, appellant must have a reasonable expectation of privacy in the place searched. (Rakas v. Illinois (1978) 439 U.S. 128, 140 [58 L.Ed.2d 387, 399].) Because it is a personal right, it may not be asserted vicariously. (Ibid. [58 L.Ed.2d at p. 399].) Earlier decisions characterized this as Fourth Amendment "standing," but recent cases avoid use of the word in determining whether the defendant, rather than someone else, has a reasonable expectation of privacy in the place searched. (People v. Alaya (2000) 23 Cal.4th 225, 254, fn. 3.)
Appellant claims that the trial court erred in denying the motion to suppress because (1) Lopez was seated in the Mercedes passenger seat and did not demonstrate a reasonable expectation of privacy in the vehicle; (2) Detective McKinley did not know who owned the vehicle; (3) the detective should have known that a vehicle passenger cannot consent to a search of the vehicle, (4) Lopez did not consent to the vehicle search because she did not own it, (5) the search was unreasonable "because there was a Fourth Amendment 'break' when [Detective] McKinney decided to search the Mercedes without knowing whose it was," (6) the search was unreasonable because there was no nexus between the Mercedes and what appeared to be a hand-to-hand drug transaction; (7) the vehicle search was based on a hunch and Detective McKinney's actions were not reasonable under the "objective officer" standard; and (8) there no exigent circumstance justifying a search without first obtaining a warrant.
These arguments fail because appellant presented no evidence that he had a legitimate and reasonable expectation of privacy in the Mercedes. There is no "automatic standing" rule. (United States v. Salvucci (1980) 448 U.S. 83, 85 [65 L.Ed.2d 619, 623].) "[D]efendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated." (Ibid. [65 L.Ed.2d at p. 623].)
Appellant's joinder in Hamilton's motion to suppress evidence did not confer Fourth Amendment standing. At the hearing on the motion, Hamilton argued that appellant had no possessory interest in the vehicle and agreed with the trial court that appellant lacked standing to object to the search. Appellant did not object, tacitly agreeing with the trial court.
"Since the adoption of Proposition 8, California's prior adherence to the vicarious exclusion rule, under which a defendant had standing to object to the introduction of evidence seized in violation of the rights of a third person, is no longer applicable, and a defendant's right to object to the seized evidence is controlled by federal law. [Citations.]" (In re Rudy F. (2004) 117 Cal.App.4th 1124, 1131.) The United States Supreme Court has consistently held that Fourth Amendment rights are personal rights and may not be vicariously asserted. (Rakas v. Illinois, supra, 439 U.S. at pp. 133-134 [58 L.Ed.2d at p. 394]; People v. Madrid (1992) 7 Cal.App.4th 1888, 1895-1896.) The same principle applies here.
Appellant argues that the preliminary hearing transcript establishes a factual basis for Fourth Amendment standing. The trial court however, was only asked to take judicial notice of page 60 of the preliminary hearing transcript in which Detective McKinney denied conducting a "field search" of Hamilton. Whether Hamilton was subject to a field search is irrelevant to appellant's Fourth Amendment claim.
Parole Search
Because appellant was on parole, the court did not err in concluding that the vehicle search was reasonable. (Samson v. California (2006) 547 U.S. 843, ___ [165 L.Ed.2d 250, 262]; People v. Reyes (1998) 19 Cal.4th 743, 753-754.) It is uncontroverted that appellant disclosed his parole status to the detective and consented to a search of his person. Appellant has no greater Fourth Amendment rights than his cohorts: the Mercedes owner (Hamilton) or the passenger (Lopez).
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.