Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF095863A
CANTIL-SAKAUYE, J.
Defendant Gary Dean Plaster pled no contest to manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), possession of methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a)), and admitted a prior conviction for residential burglary. The trial court sentenced defendant to a stipulated term of nine years and four months in prison.
On appeal, defendant contends the trial court erred in denying his suppression motion. We reject the contention and affirm.
BACKGROUND
The facts are taken from the suppression hearing. San Joaquin County Sheriff’s Deputy Steven McCulloch responded to a domestic violence call involving defendant and his wife, Brandy Plaster (Plaster), on April 24, 2005. McCulloch interviewed Plaster at her mother’s house on Burkett Avenue at about 10:09 p.m.
Plaster told McCulloch she and defendant had been in an argument in the bedroom of the house they shared on LaJolla Drive in Stockton at 8:30 p.m. on April 23. Defendant was angry at Plaster because he thought she was spending too much time caring for their two-month-old baby and not enough time on him. He grabbed Plaster by the throat, threw her onto the bed, jumped on top of her, and began choking her. The assault stopped when their three-year-old daughter entered the room.
Another incident took place in their living room at around 5:00 a.m. on April 24. Plaster was holding their baby and feeding him when defendant grabbed her by the hair, made a fist, and swung and missed Plaster’s face. Defendant yelled at the three-year-old who had entered the room, and then went to the bedroom where he fell asleep. A few hours later, Plaster gathered some belongings and left for her mother’s house on Burkett Avenue.
Plaster wanted to go back to the LaJolla house to get the rest of her belongings but was afraid to return so long as defendant was there. She told McCulloch defendant kept a shotgun in the bedroom on the top shelf of the closet, and she believed drugs and firearms might also be in the garage. When asked by McCulloch whether the LaJolla drive house was her residence, Plaster stated it was. McCulloch then asked for and received permission from Plaster to search the LaJolla residence.
McCulloch went to the LaJolla house, knocked on the door, and was met by defendant. McCulloch told defendant he was investigating a domestic violence incident with his wife. Defendant admitted grabbing Plaster by the hair, swinging at her face, and arguing with her over how much time was spent on the baby.
After arresting defendant and placing him in the patrol car, McCulloch searched the house for firearms. He found a shotgun in the closet, just as Plaster described, and a .25-caliber pistol in a tin jar in the dining room. In the garage, he found a cabinet containing chemicals consistent with a methamphetamine lab.
McCulloch, who had promised to contact Plaster after defendant was arrested, informed her of her husband’s arrest. Plaster came to the LaJolla house with her mother, who entered the residence and retrieved a basket of women’s clothing. McCulloch told Plaster detectives would be conducting a follow-up interview with her, and Plaster responded by asking whether “her” house was going to be taken away. He also asked Plaster to sign a consent form to search the house and the car, which she did.
Previously, on April 14, 2005, McCullough and his partner were backup for a domestic violence call at the LaJolla residence.
Deputy Shelby Oliver, the lead officer in the case, interviewed Plaster in response to the April 14 domestic violence call. They met at a store in Stockton, where Plaster told Oliver she had moved out of the LaJolla residence in January of 2005 because of defendant’s methamphetamine use. She gave her address as 2351 West Sonoma Avenue.
Defendant had called Plaster, saying he had changed and wanted to work things out. She went over, smelled what she thought was a methamphetamine lab, and got into an argument with defendant, who she thought was under the influence of methamphetamine. Defendant hit her in the mouth and jumped on top of Plaster before her brother pulled him off. Plaster then walked to the market and called the authorities.
As Oliver drove to the LaJolla residence, Plaster asked to be let off at the West Sonoma address because she did not want to go back to her house on LaJolla. After the investigation of the LaJolla residence was concluded, Oliver went back to the West Sonoma address, but Plaster was gone. The people who lived there said Plaster was not staying at the address.
Oliver gave McCulloch and his partner a brief rundown of the alleged incident and an allegation from Plaster about a possible methamphetamine lab in the garage. The deputies knocked on the door, and after no one answered, walked around the house before leaving. Oliver did not tell Deputy McCulloch about any statements Plaster had made regarding her separation from defendant or whether she was still living at the LaJolla residence. McCulloch never spoke with Plaster on April 14.
In his report, McCulloch listed Plaster’s address as her mother’s residence on Burkett Avenue because Plaster said she was not going back to the LaJolla residence and he needed a contact address. He made no effort to verify Plaster’s claim to owning the La Jolla property with the defendant.
Plaster testified for the defense. She left defendant on January 1, 2005, first staying in a Stockton apartment and then with her mother, with whom she has lived ever since. On April 14 she told the deputies she was having many problems with defendant, but checked in on him from time to time. She went to the LaJolla residence on April 14 to see if defendant was free from drugs, but they got into an argument which led to the first domestic violence call.
Plaster said she spent only two or three nights at the LaJolla residence in April. The defense presented a deed granting the LaJolla property to defendant as his sole and separate property as of August 31, 2004. Plaster married defendant on March 17, 2001, and the two bought the LaJolla house together, although defendant made all of the payments.
After she left defendant in January of 2005, Plaster no longer thought of the LaJolla residence as her house. She gave her key back to defendant when she moved out, and Plaster could not enter the place without defendant’s permission. Plaster admitted some of her possessions were left at the LaJolla residence, but she did not need these while she lived at her mother’s apartment. Plaster denied giving consent for McCulloch to search the LaJolla house and does not remember signing a consent form.
Transcripts of Plaster’s calls to 911 to report defendant’s assaults were introduced. In both calls Plaster refers to the LaJolla residence as “my house.”
The trial court denied the suppression motion. It found McCulloch was a credible witness, and did not believe Plaster when she said she never gave consent to search the LaJolla house.
DISCUSSION
Defendant asserts McCulloch’s warrantless search of the LaJolla residence violated the Fourth Amendment. In support of his claim, defendant argues Plaster lacked the authority to consent to the search and McCulloch could not reasonably rely on Plaster’s consent. Since McCulloch could reasonably rely on Plaster’s apparent authority to consent to the search, we reject defendant’s contention.
An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. (People v. Loewen (1983) 35 Cal.3d 117, 123.) In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to the court’s express or implied factual findings if they are supported by substantial evidence. We then exercise our independent judgment to determine whether, on the facts found, the search was reasonable under the Fourth Amendment. (U.S. Const., 4th Amend.; People v. Rege (2005) 130 Cal.App.4th 1584, 1588.)
Absent a warrant, the prosecution must demonstrate by a preponderance of the evidence justification for a search or seizure. (United States v. Matlock (1974) 415 U.S. 164, 177-178 [39 L.Ed.2d 242, 253] (Matlock).) Valid consent to a warrantless search satisfies the Fourth Amendment’s requirement of reasonableness. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 [36 L.Ed.2d 854, 858].) In proving consent, the prosecution “is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” (Matlock, supra, at p. 171 [39 L.Ed.2d at pp. 249-250], fn. omitted.)
The Supreme Court explained the basis for third-party consent in Matlock: “[t]he authority which justifies the third-party consent . . . rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” (Matlock, supra, 415 U.S. at p. 171, fn. 7 [39 L.Ed.2d at p. 250].)
Consent is not valid unless “‘the facts available to the officer at the moment’” would “‘“warrant a man of reasonable caution in the belief”’ that the consenting party had authority over the premises. [Citation.]” (Illinois v. Rodriguez (1990) 497 U.S. 177, 188 [111 L.Ed.2d 148, 161] (Rodriguez).) However, the person giving the consent need not have the actual authority to consent to the search. “The Constitution is no more violated when officers enter without a warrant because they reasonably (though erroneously) believe that the person who has consented to their entry is a resident of the premises, than it is violated when they enter without a warrant because they reasonably (though erroneously) believe they are in pursuit of a violent felon who is about to escape. [Citation.]” (Id. at p. 186 [111 L.Ed.2d at p. 160].)
Plaster told McCulloch she was defendant’s wife and he had twice assaulted her at their LaJolla residence within the last day. McCulloch had been told by Plaster that she lived in the LaJolla residence and it was her address. Her story was partially confirmed by defendant, who admitted to McCulloch that he had argued with his wife over how much time she spent with the baby and had grabbed her by the hair. These statements are consistent with Plaster’s authority, as defendant’s wife and the mother of his children, to consent to the search of their house.
In People v. Bishop (1996) 44 Cal.App.4th 220 (Bishop), appellant’s wife gave consent to search their residence even though she had left the house three weeks ago and appellant had changed the locks. (Id. at p. 236.) The wife “was forced out of the home she had shared with appellant out of fear for her safety.” (Id. at p. 239.) The wife had moved to a battered women’s shelter and the appellant did not have exclusive control over the property. (Ibid.) The appellant and his wife “were still married and, at least at that point, appellant had no legal right to exclude her.” (Ibid.) As the appellant’s spouse, his wife was still liable for rent and for any accidents on the property. (Ibid.) Although the wife never intended to return to the premises, “a substantial amount of her and her children’s property remained in the house at the time of the officer’s subsequent search.” (Ibid.) The Court of Appeal concluded that the wife retained authority to consent to the search of her former residence. (Ibid.)
Defendant attempts to distinguish Bishop because it addressed the wife’s actual rather than apparent authority, and Plaster did not in fact have the same authority as the wife in Bishop. We do not need to determine whether Plaster retained the same authority over her husband’s residence as the wife in Bishop. If the facts available to McCulloch “‘at the moment’” would constitute a valid consent under Bishop, then his reliance on Plaster’s consent was objectively reasonable. (See Rodriguez, supra, 497 U.S. at p. 188 [111 L.Ed.2d at p. 161].)
Applying Bishop, we conclude McCulloch was objectively reasonable in relying on Plaster’s consent. Although she did not intend to live there again, according to her statements to McCulloch, Plaster had just been forced out by defendant’s domestic violence. She told McCulloch she was still defendant’s wife, the LaJolla residence was her house as well as defendant’s, and she still had personal property there which she wished to retrieve. Plaster also told McCulloch they had once separated, but she said they were back together until defendant’s recent attacks caused her to move out. If these statements were true, then Plaster would have had authority under Bishop to consent to the search.
McCulloch could reasonably rely on Plaster’s statements asserting authority over the LaJolla residence. It is reasonable to believe that a wife, and mother of two children, was cohabiting with her husband, the father of the children. Even if she intended to move out permanently, Plaster’s statement that the house was also hers would normally be valid until a divorce or some other property settlement.
Defendant’s claim that McCulloch had reason to question Plaster’s authority to consent because she was angry with defendant is without merit. Anger over being attacked, especially by one’s spouse, is natural. Anger could lead a person to make false allegations about the offending spouse, but falsely asserting authority over a residence in order to give effective consent to a search presumes a far greater degree of legal sophistication than we are willing to find in this situation.
Plaster’s statement, as related by McCulloch, supported her apparent authority to consent to the search. McCulloch also testified he had never been informed about Plaster’s earlier statements that she had already moved and was staying at another address. The trial court found McCulloch to be a credible witness and found Plaster’s testimony that she never consented was not credible. We defer to these findings and conclude the search was valid.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND , P.J., MORRISON , J.