PEOPLE v. SCHMITZ

Respondent’s Opening Brief on the Merits

Cal.January 28, 2011

In the SupremeCourt of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. DOUGLAS GEORGE SCHMITZ, Defendant and Appellant. Case No. $186707 JAN 28 UI Appellate District Divisio Orange County Superior Preclerice « n Three, Case No. G040641 Court, Case No. 06HF2342 Deputy . LATHE Ler The Honorable John S. Adams, Judge RESPONDENT'S OPENING BRIEF ON THE MERITS KAMALA D. HARRIS Attorney General of California DANE R. GILLETTE _Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General STEVE OETTING Supervising Deputy Attorney General EMILY R. HANKS Deputy Attorney General State Bar No. 230442 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 SanDiego, CA 92186-5266 Telephone: (619) 645-3196 Fax: (619) 645-2191 Email: Emily.Hanks@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page Issues Presented ..........cccseseseessees sesseseseaesesesesesesesssesacsesesssecseenscseeesesesesentees 1 TmtroductiOn ...........cccccessecsssessseseeceteeeseeeeteeeseeeees eeseceuaeeeseaneesseeseeseeseneeeeeeesaes 1 Statement of the Case...ccsceesseeseesecseeseceeeessessaeecsseeseserscsesessenssseeenees 4 Statementof the Facts ........ccccccccssescsesesesssscsescsessessessseecsesseseseescesssscsesseasaesees 6 ATQUMENE 0... ceececesecsscesscesscecsseeaeecssecereessesssscssssecsesessateceareeeeeieesteeetseetnees OF I. The search of the areas of the vehicle’s passenger . compartmentthat were accessible to the parolee passenger wasreasonable under the Fourth AMeNAMEN.........ccccecsicccceessecssceeeecseesssaaeesssaceceeeseaceseeaaeeeaaes 8 A. Standard Of review ........:ccssccescecesecceeeerseesseesseeeseeeseees 9 B. General principals regarding the Fourth AMeNAMED..........ccccceseceseccessersneeeescersaeerseeeaeceeneerseeaas 9 1. The parole search exception .........c.ceeeeeeeee 1] 2. Third party expectations of privacy............... 16 C. Considering thetotality of the circumstances, a search ofthe areas of the vehicle accessible to the parolee was reasonable..............seeeeereeeeee 21 1. Appellant was subject to a reduced expectation ofprivacy in the areas of the vehicle he shared with the parolee................. 22 2. Suspicionless parole searches serve a significant state interest ...........eeeeceseseeeetees 28 3. Underthe totality of the circumstances, the search was reasonable..............eeeeee 30 D. The Court of Appeal’s analysis is erroneous............ 31 1, The Court of Appeal analysis fails to follow Knights’ and Samson’s balancing COSEoe eeeeeeeceeseeseceenceeseteseecesneeeeneeseecsnsesusoaees 32 2. The Court of Appeal’s rule grants greater privacy expectations to ai vehicle than a TOME ......eeeeeecceeceenceeeccceseneeesersseeseseaeseeeeaeeneees 34 TABLE OF CONTENTS (continued) Page 3, The Court of Appeal’s decision contradicts well-established law regarding jOINt POSSESSION ..........ceseeeeeeeeeeeees 37 4. The Court of Appeal’s decision leads to absurd results 0.0... .cccecsseessceseceeseeesseeeeeneenaners 38 5. The Court of Appeal’s decision . erroneously focuses on consentlaw.............. 40 Conclusion sussecevecscseseusuansnsssnsenesnansesesseressnssenssnensuenssesereatonerecossnonsenssesseeees 46 il TABLE OF AUTHORITIES Page CASES California v. Ciraolo (1986) 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210... 11 Georgia v. Randolph . (2006) 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208........ 36 Griffin v. Wisconsin (1987) 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709... 11, 42 Illinois v. McArthur (2001) 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 .......ees 10 In re Arturo D. (2002) 27 Cal4th 60.00... ecsecseccssssecsesessssecsesesccseeessesseseceeseseessaeses 23 In re Jamie P. . (2006) 40 Cal4th 128... ecceseessesessesreseeneseesesessssessesesecesssneeny 11, 13 In re Tyrell J. (1994) 8 Cal4th 68 oeciccseseesesssesssecsessessenseeeesesessveeseenesens 11, 43 Ohio v. Robinette | (1996) 519 US. 33, 117 S.Ct. 417, 136 L.Ed.2d 347 ...........seseaeeneese 33 Payton v. New York (1980) 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 oo...eee 36 Pennsylvania Bd. ofProb. & Parole v. Scott (1998) 524 U.S. 357, 118 S.Ct. 2014, 141 L.Ed.2d 344ow.28 People v. Ayala (2000) 23 Cal4th 225occcecssssecsseesesscssessessessssesseseeeeesessecseseseseess 10 People v. Baker | (2008) 164 Cal.App.4th 1152.0... ccscsscsssssesssscesssssessenenees passim People v. Boyd (1990) 224 Cal.App.3d 736.0...ccccscsssessessceseeesMeetaeeeetersneeses 24, 40 ili People v. Bradford a (1997) 15 Cal.4th 1229ooceeeseeseeeeereeseesessessesessecneesseneeseeness 10 People v. Bravo (1987) 43 Cal.3d 600.......... veevsceuaueeseceaeeeueecaeeesneeseesueeeeesteseneseesensansy 43 People v. Britton (1984) 156 CalApp.3d 689 o.oo. eeeeeeeereceerereenneeees‘easeeeseeeceeesees 40 _ People v. Evans . (1973) 34 Cal.App.3d 175 .....ccecssseseeeseeseeeseneensesnennessecennesnas 37, 38 People v. Glaser (1995) 11 Cal.4th 354.cceeseeeeeeereeeessessssseecssreseensessseeeseesenees 9 People v. Hughes (2002) 27 Cal.4th 287 0...cceeeeereesreteeeeenescesaeesaeeseceaeeuaneceaeenneeeneeeas 9 People v. Lawler . (1973) 9 Cal.3d 156.0... eeeseeeereeesecreeteseeseeenees seneeeneesaceceneeeseteeseesees 9 People v. Mendoza (1986) 183 Cal-App.3d 390 oo.eeeeeeeeseseeeeeesseseeeaceeseeeeaneaee 37 People v. Middleton | (2005) 131 Cal.App.4th 732.0... cccescsseeseeeceeseeesesesesenesseeenesenees 9, 44 People v. Munoz (2008) 167 Cal-App.4th 126.0...eeeeeeceeeeeseeseeesseeseseneesseeseaneenees 9 People v. Pleasant . (2004) 123 CalApp.4th 194occrescnseeseesereeneeseeneeeens 24, 25 People v. Reyes (1998) 19 Cal.4th 743occVeaceessseeesneceeseeseeesesnerensaseases passim People v. Robles (2000) 23 Cal.4th 789.000... cecsscssesteescecsseecaeeesseesesscsessessceeeeenes passim People v. Sanders (2003) 31 Cal.4th 318...........sesengaceesseeeesnsees vescaceeceteeecesseeeesteeeeess passim People v. Smith (2002) 95 Cal.App.4th 912oeeeeeeeeceesseseneseeressvesenseenees 25, 27, 40 iv People v. Smith (2009) 172 Cal.App.4th 13540...eceseeseeseeesseesenenesLceeeeeeaee 11, 44 People v. Tharp (1969) 272 CalApp.2d 268 0.0... eeeceseseeseeceeeceeeesseeseeecseseesseseseneeess 38 People v. Triche (1957) 148 Cal.App.2d 198 oo... ccccccsccesessssscssetseessesseseseeceseeseeseeens24 People v. Vermouth (1971) 20 CalApp.3d 746.00... cceccescecsencsseseseeseseseeseessteseeseenseess 37, 38 People v. Woods (1999) 21 Cal4th 668.0...ccsccssscsseecssesscesseeesseescsecsessseeeseenes passim Rakas v. Illinois (1978) 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 woes42 — Rideout v. Superior Court (1967)67 Cal.2d 471 oo ccescscenseessneeceeesecseeesseeeseeseeeeceeceseeaesseeeeees 37 Russi v. Superior Court (1973) 33 Cal.App.3d 160.seceueceesaeescersecceeseeesaeeeneseeeceteetenetses 25, 30, 35 Samson v. California (2006) 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 ............ passim Silverman v. United States (1961) 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 woocece 36 South Dakota v. Opperman (1976) 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000... 23 State v. Johnson (Utah 1987) 748 P.2d 1069 ucecsccssesscessecsecssccesseseecseeeeneeaes 25, 30 State v. Yule (Fla. Ct. App. 2005) 905 So.2d QOL cee eceeeeeeeseseseeeeseseeeesseseeeesesenens 25 U.S. v. Chavez Loya (8th Cir. 2008) 528 F.3d 546...cesceesesseseteeceeteesseeeseeceseesecsnsaees 42 United States v. Crawford (9th Cir. 2004) 372 F.3d 1048 oo...cccssccsessseecsscsesesseesessssesseeaees 29 United States v. Davis (9th Cir. 1991) 932 F.2d 752 woeeeeeesesesesseeseeseeeseeseeseesneeeeseeseesnes 40 United States v. Knights (2001) 534 U.S. 112, 122 S.Ct. 587, 151 L-Ed.2d 497 0.0... passim United States v. Martinez-Fuerte (1976) 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116...eee 36 United States v. Matlock (1974) 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 ....... 17, 26, 41, 42 United States v. Morales (3d Cir. 1988) 861 F.2d 396 oooeceseeseeseeessesseesseesseecseseenesaneeas 42 United States v. Poulack (8th Cir. 2001) 236 F.3d 932 oo. ceecseeeseereeeceeseersterseessseessseessatenes 42 Wyoming v. Houghton. (1999) 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 .......... 10, 23 vi STATUTES 15 California Administrative Code § 2511, subd. (D)(4) oo.eecccececesseeccssecesseessececsesceessseecesseeeseeeesses 12 Business & Professions Code § 4140 ooocccesssccsssssecesccsesesscecsecavscsssecseceueversescesesesaseseesaueeeceers 4 Health & Safety Code § 11350, subd. (8) occececseeeseeeestecesseeeeerseesSeseecuseececcesessarecevensnauacs 4 § 11550, Subd. (8) oo. eee eceececesesseeeseceseescesececeescecsesstsenseeeeesseseaeeeseaeeens 4 - Penal Code § 273, SUDA. (D) ooo.eeeccceseccesseccsssereesseeessseesseeccnseceseescssseecstnesensunss 4 § 667, SUD. (d) oo. eeeeccccsesscesesecesscscesseccsscesssssseseusesseecesscesacereeeessaaas 5 § 667, Subd. (€)(1) oo. ccecceessccssesseessserecesssseesececssseeeeescesscsnecesesstesseses 5 SI 00n 5 § 1538.5 ceeeeccccccessseccessssecscsssseccessesccessaescssnasesseesesceceveranesevsnaaness 5, 6 § 3060.5 ooeeeeeeeseeuevesesscuacessucecsususescssesuseccssceseesscssecantceseceeses 44 § 3067 ....ccccecccsccecsssccessesecsessseseveeesaeeseeeaeeaesageeeaseseseeateneeaeeateaseneaeees 43 § 3067, SUD. (2)..... ee cccceesecessesssecssseesseccateesscssrsceesnses seseeeseeenes 12, 43 § 3067, SUDA. (C) oo. eeceesscsssecessessssecesseerseceneseseceseeseeeesaeeessseesseesseseres 43 Vehicle Code § 23152, SUDA. (A) ....eeesescceseresesessseseesessesseseecsssescseeeeesessesseeseesssecseeseess 4 § 23540 oo cescccsecccsscccsssceccecesersececsusnaucesstssesessececesscesececsuacesesteseesers 5 CONSTITUTIONAL PROVISIONS California Constitution Article I, § 28, subd. () oo... cccecccsessssstectessscsssseeesscesseessesesssessenseens D United States Constitution | | Fourth Amendment...........cccscccsscssccsecescssescnsetseseesnsseeceeseseeeseees passim OTHER AUTHORITIES 2 Ringel, Searches and Seizures, Arrests and Confessions (2d ed. 2010) § 17:8.eeccecseseceseececsneseeseeeeeessenecsnesseneeseesseseessaeseeeeeceesseseeeens 42 Vii 5 LaFave, Search and Seizure: A Treatise on the Fourth Amendment(4th ed. 2010) § LOt]eeeeeseeceserereeesseeeeseeeeseeeseuanees 42 Caskey, Cal. Search and Seizure (2010 ed.) § OFiccccecsscecseessecseesecetsnssneenesereeeaesseeeaeeesersaesaacsasseeeaseaeneeeats 26, 44 Vill ISSUES PRESENTED Whenconducting a search authorized by an automobile passenger’s parole condition, can the police search those areas of the passenger compartmentthat reasonably appearsubject to the parolee’s access? INTRODUCTION Appellant was driving while underthe influence of methamphetamine andopiates. Hisfriend, a parolee, wasseated in the | front passenger seat. A woman andher three-year old child were seated in the back seat, During a consensual encounter, a police officer inquired whether anyonein the vehicle was on probation or parole andthe frontseat ' passenger admitted to being on parole. The officer then conducted a search of the passenger compartment of appellant’s car based on the passenger’s parole search condition. She discovered methamphetamine in a shoe and a hypodermic needle in a bag of chipslocatedin the back seat area ofthe car. Appellant moved to suppress these items and the motion wasdenied. Appellant then pled guilty to driving underthe influence, being under the influence, possession of a hypodermic needle, and child endangerment. Appellant appealed the denial of his suppression motion and the Court of Appeal agreed, finding the search of appellant’s car violated the Fourth Amendment. The court reasonedthat a front seat passenger’s parole status could notauthorize a parole searchofthe back seat area of acar. The Court of Appeal’s decision was erroneous and mustbe reversed. Whenconducting a search authorized by an automobile passenger’s parole condition, police may search areas of the passenger compartment that reasonably appear accessible to the parolee. The United States Supreme Court has held that a parole search satisfies the Fourth Amendmentif it is reasonable underthe totality of the circumstances. Reasonableness is assessed by weighing the privacy expectations of the individuals involved againstthe state’s interest in performing the search. Because appellant was in a vehicle on a public street and was sharing his vehicle’s passenger compartmentwith a parolee subject to a suspicionless search condition, he was subject to a reduced expectation of privacy in the areas of the vehicle within the parolee’s joint access or control. _ The state has an overwhelminginterest in conducting suspicionless searches of parolees to ensure the parolee’s successful reintroduction into society and to protect the public. If those portions of the vehicle accessible to the parolee were excluded from a parole search, the parolee could end- run his search condition. The parolee could simply place his contraband or weaponsin a nonparolee’s car, within his reach and subjectto his use, without fear of the property being discoveredin a parole search, thereby frustrating thestate’s ability to supervise parolees and protect the public from those released from prison early. Balancing the third party’s diminished privacy expectations with society’s vital interests in regulating parolees, a search of the property subject to the parolee’s access or control is reasonable. In this case, the back seat area of appellant’s car was subject to the parolee front seat passenger’s access or control. Therefore, the back seat area was properly included within the parole search. | Rather than considerthetotality of the circumstances, the Court of Appeal’s decision below crafted a bright-line rule in which only the seat occupied bythe parolee is subject to search. The Court of Appeal’s rule marksa significant break with this Court’s prior decisions in the context of parole searches of shared residences. Officers awareofthe parolee’s joint occupancy maysearch any area of the home that is subject to the parolee’s joint access or control. The Court of Appeal refused to consider which areas of appellant’s car constituted commonorshared space, instead limiting the search to the actual seat used by the parolee and no further. This rule grants far more constitutional protection to a car than a home, directly contradicting the weight of constitutional authority holding the homeis subject to the greatest Fourth Amendmentprotection. The Court of Appeal’s bright-line rule, untethered to the factual circumstances of the case, also leads to absurd results. The court’s rule fails to acknowledgethat a passenger can use moreofa vehicle than the seat he or she is actually occupying and fails to acknowledgethat a passenger can own,possess,or use items located in someoneelse’s car. Finally, the Court of Appeal’s decision places dispositive weight on whether appellant’s passenger was legally entitled to consentto the search of appellant’s car. But the search at issue in this case was not a consent search. Although parole searches havea basis in consent, a parole searchis constitutionally distinct from a consent search. Unlike a consentsearch, a parole search’s reasonableness must be assessed with consideration of the reduced expectations of privacy held by parolees, and those who chooseto live or ride with parolees, and society’s vital interests in regulating parolees by wayofthe suspicionless search. A simple application of consent principles, employed by the Court of Appeal below, fails to appropriately assess the constitutionality of the parole searchemployed in this case. STATEMENTOF THE CASE On May7, 2007, the Orange County District Attorney’s Office filed an information charging appellant with possession of a controlled substance (count 1; Health & Saf. Code, § 11350, subd.(a)), driving under the influence (count 2; Veh. Code, § 23152, subd. (a)), being under the | influence of heroin and methamphetamine (count 3; Health & Saf. Code, § 11550, subd. (a)), possession of a hypodermic needle (count 4; Bus. & Prof. Code, § 4140), and child endangerment(count 5; Pen. Code,! § 273a, ' All further statutory references are to the Penal Code unless otherwise indicated. subd. (b)). (CT 29-30.) The information also alleged that appellant had previously been convicted of driving underthe influence (Veh. Code, § 23540) and attempted robbery,a serious and violent felony (§ 667, subds. (d), (e)(1)). (CT 30-31.) On December3, 2007, the People dismissed count 1 pursuant to section 1100. (CT 39.) On March 4, 2008, appellantfiled a motion to suppress evidencepursuant to section 1538.5, claiming both the stop and search ofhis vehicle violated the Fourth Amendment. (CT 43.) The hearing was held on May 21 and June 23, 2008. At the conclusion of the hearing, the trial court denied appellant’s motion. (CT 62, 66.) On July 8, 2008, appellant pled guilty to four misdemeanors: driving underthe influence, being underthe influence, possession of a hypodermic needle, and child endangerment. Appellant admitted his prior conviction for driving underthe influence. Thetrial court sentenced appellant to 90 days in jail and 3 years’ informal probation. (CT 80-81.) Appellant appealed, contending his vehicle was stopped without reasonable suspicion and the search exceeded the proper scopeofa parole search. On August 18, 2010, the Court of Appeal for the Fourth Appellate District, Division Three, issued a published decision reversing the judgment. The Court ofAppeal held that appellant’s initial encounter with the officer was consensual anddid not implicate the Fourth Amendment. (Slip opn. at pp. 6-7.) However, the court concludedthat the search of the passenger compartmentof appellant’s vehicle was unconstitutional. The -court found that appellant’s front seat passenger’s parole condition did not authorize the officer to search the back seat area of the car. (Slip opn.at pp. 7-12.) Respondentpetitioned this Court for review. On December1, 2010, this Court granted the petition. STATEMENTOF THE FACTS? _ Appellant was driving an older model Oldsmobile or Buick in Aliso Viejo, Orange County, around 7:00 p.m. on November24, 2006. There. were three other occupants in the vehicle. The front seat passenger, Quentin Gordon, was appellant’s friend of two or three years. Gordon was on parole. Gordon’s girlfriend, Brenda Turner, and her three-year old son were seated in the back seat. (Supp. CT 8-9; Supp. RT 15, 33-35, 43, 45.) Deputy Mihaela Mihai observed appellant turn off a larger street onto a sinaller street and then make a U-turn. She followed him,without — activating herlights or initiating a traffic stop. After appellant made a U- ? The Statementof the Facts is derived from the section 1538.5 hearing held on May 21 and June 23, 2008. The arresting deputy’s testimony began on May 21. There wasno court reporter present and no tape recording ofthe testimony exists. A settled statement of the record regarding her testimony wasfiled before the Court of Appeal. (Supp. CT 8-11; RT 1-10.) Appellant presented multiple witnesses at the section 1538.5 hearing regarding whetherthe officer blocked his car during the encounter. These facts are omitted becausethetrial court’s ruling that the encounter was consensualis not before this Court. turn, his car was stopped parallel to Deputy Mihai’s car, facing in the opposite direction. Deputy Mihai’s car was stopped in such a waythatit did not obstruct the movementof appellant’s car. (Supp. CT 8-9; Supp. RT 3, 6.) Deputy Mihaiaskedif appellant was lost or needed help. (Supp. CT 8-9; Supp. RT 39.) Appellant said that he was notlost and had driven into the condominium complex to make a U-turn because he could not do so on the main street. Deputy Mihaigot out of her car and approached appellant’s car. She asked where he was from andifhe neededdirections. Appellant replied that he was from Long Beach anddid not need directions. Deputy Mihai askedifappellant minded showingherhis driver’s license. Ashe wasretrieving the license, Deputy Mihai, who had expertise and training regarding street narcotics, observed that appellant’s arms were covered in abscesses consistent with drug use. Deputy Mihai then asked _ appellant if he was on probation or parole. Hesaid “no.” .She then asked if the other occupants of the car were on probation or parole. Gordon | admitted that he was on parole and that he had noidentification. Deputy Mihai asked appellant for permission to search the car and hedid not respond. (Supp. CT 9; Supp. RT 39-41.) After she discoveredthat the passenger was onparole, Deputy Mihai advised dispatch of her location and requested another officer come to the scene. (Supp. RT 9.) Deputy Mihai then conducted a search of the car based on the passenger’s parole status.. She found a woman’s black purse containing a syringe cap in the back seat. She also found a bag of chips containing two syringes (one without a cap) anda pair of shoes containing methamphetaminein the back seat. (Supp. CT 9-10.) Deputy Mihai arrested appellant. (Supp. CT 9.) At the time, appellant was under the influence ofmethamphetamines and opiates. (CT 71.) ARGUMENT I. THE SEARCH OF THE AREAS OF THE VEHICLE’S PASSENGER COMPARTMENT THAT WERE ACCESSIBLETO THE PAROLEE PASSENGER WAS REASONABLE UNDER THE FOURTH AMENDMENT This Court must determine the reasonablenessof a parole search underthe totality of the circumstances, balancing the privacyinterests of individuals with the state’s interest in the search. In this case, appellant wassubject to reduced privacy expectations becausehe wasin a vehicle on a public street and was sharing the vehicle’s interior with a parolee subject to a suspicionless search condition. Balancing this reducedprivacyinterest with the state’s compelling need to regulate those released from prison - early, a search ofthe areas ofthe vehicle accessible to the parolee was reasonable. The Court ofAppeal failed to conductthis totality of the circumstances balancing test. Instead, the court erroneously created a bright-line rule based on whichseat the parolee occupied and focused on a passenger’s legal right to consentto the search of another’s car. A. Standard of Review Whenreviewing the denial of a suppression motion, the reviewing court views the evidencein the light most favorable to the trial court’s ruling and adopts all express and implied factual findings that are supported by substantial evidence, but independently determines whetherthe challenged search or seizure was constitutionally reasonable as a matter of law. (People v. Hughes (2002) 27 Cal.4th 287, 327; People v. Glaser (1995) 11 Cal.4th 354, 362.) “[T]he powerto judgethe credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences,is vested in thetrial court.” (People v. Munoz (2008) 167 Cal.App.-4th 126, 132, quoting People v. Lawler (1973) 9 Cal.3d 156, 160.) If factual findings are unclear, the reviewing court must infer “a finding of fact favorable to the prevailing party on each groundor theory underlying the motion.” (People v. Middleton (2005) 131 Cal.App.4th 732, 737.) B. General Principals Regarding the Fourth Amendment Pursuant to California Constitution,article I, section 28, subdivision (d), issues relating to the suppression of evidence derived from police searches and seizures must be reviewed underfederal constitutional standards. (People v. Ayala (2000) 23 Cal.4th 225, 254-255; People v. Bradford (1997) 15 Cal.4th 1229, 1291.) The Fourth Amendmentto the United States Constitution guarantees “jhe right of the people to be secure in their persons, houses, papersand effects, against unreasonable searches and seizures” and providesthat “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (U.S. Const,, Amend.IV.) “The touchstone of the Fourth Amendmentis reasonableness.” (United States v. Knights (2001) 534 U.S. 112, 118-119 [122 S.Ct. 587, 151 L.Ed.2d 497] (Knights).) The court determines the reasonableness of a search “by assessing, on the one hand, the degree to whichit intrudes upon an individual’s privacy and, on the other, the degree to whichit is needed for the promotion of legitimate governmentalinterests.” (/bid., quoting Wyoming v. Houghton (1999) 526 U.S. 295, 300 [119 S.Ct. 1297, 143 L.Ed.2d 408]; accord Illinois v. McArthur (2001) 531 US. 326, 331 [121 S.Ct. 946, 148 L.Ed.2d 838] [“we balancethe privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable”].) An individual has a constitutionally protected privacy interest where “he or she has manifested a subjective expectation of privacy in the object of the challengedsearch that society is willing to recognize as reasonable.” 10 (California v. Ciraolo (1986) 476 U.S. 207, 211 [106 S.Ct. 1809, 90 L.Ed.2d 210]; Zn re Tyrell J. (1994) 8 Cal.4th 68, 83, overruled on other groundsin Jn re Jamie P. (2006) 40 Cal.4th 128, 139.) The Constitution recognizes a hierarchy of privacy interests. (People v. Reyes (1998) 19 Cal.4th 743, 751 (Reyes).) “Reasonable expectations of privacy that society is prepared to recognize as legitimate receive the greatest level of protection; diminished expectations of privacy are moreeasily invaded; and subjective expectations of privacythat society is not prepared to recognize as legitimate have noprotection.” (Jbid.) 1. The Parole Search Exception A warrantless search mustbe justified under a recognized exception to the warrant requirement. (In re Tyrell J., supra, 8 Cal.4th at p. 79.) A search pursuantto a valid parole search condition constitutes such an exception. (Knights, supra, 534 U.S. at pp. 117-118, 121-122; Griffin v. Wisconsin (1987) 483 U.S. 868, 875 [107 S.Ct. 3164, 97 L.Ed.2d 709]; People v. Smith (2009) 172 Cal.App.4th 1354, 1360.) In California, parolees may be subjected to a warrantless, suspicionless search by any memberof law enforcement. The notice of parole in California dictates, “You and your residence and any property under your control may be searched without a warrant at any time by any agent of the Department of Corrections or any law enforcementofficer.” 1] (15 Cal. Admin. Code, § 2511, subd. (b)(4).) Furthermore, before being paroled, a California inmate mustagree in writing “to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” (§ 3067, subd.(a).) In Reyes, this Court held that the practice of conducting warrantless, suspicionless searches of parolees is constitutional under the Fourth Amendment. (Reyes, supra, 19 Cal.4th at p. 752.) Such searchis reasonable under the Fourth Amendmentprovidedit is not “arbitrary, capricious or harassing.” (/bid.) This Court reached the conclusion that a properly conducted parole search does notintrude on any expectation of 3935privacy “society is ‘prepared to recognizeas legitimate’” by weighing the privacy interests of the parolee with society’s interest in conducting parole searches without any form ofparticularized suspicion. (/d. at p. 754.) “As a convicted felon still subject to the Department of Corrections, a parolee has conditional freedom-granted for the specific purpose of monitoring his transition from inmate to free citizen.” (/d. at p. 752.) The parolee has a greatly reduced expectation ofprivacy because he “is on notice thathis activities are being routinely and closely monitored.” (/d. at p. 753.) Additionally, his parolestatus has been triggered by his own conduct,the crime whichresulted in conviction, sentence, and ultimately parole. 12 (Reyes, supra, 19 Cal.4th at p. 752.) In contrast to the parolee’s extremely diminished expectation of privacy, the state has a strong interest in conducting random searchesofthose released from prison early. “Thestate has a duty not onlyto assess the efficacy of its rehabilitative efforts but to protect the public, and the importance ofthe latter interest justifies the imposition of a warrantless search condition.” (Jbid.) In the years following Reyes, this Court has concludedthat an officer’s subjective reasons for undertaking a parole or probation search are irrelevant. (People v. Woods (1999) 21 Cal.4th 668, 680-681 (Woods).) However, an officer must be aware of the parole or probation condition prior to conducting the search. (People v. Robles (2000) 23 Cal.4th 789, 800 (Robles); People v. Sanders (2003) 31 Cal.4th 318, 330 (Sanders); In ~ re Jaime P., supra, 40 Cal.4th at pp. 138-139.) In Knights, the United States Supreme Court upheld California’s practice of allowing warrantless probation searches of a probationer’s home by any memberof law enforcement without involvementof the probation officer and for general criminal investigation. After examining the totality of the circumstances, “with the probation search condition being a salient circumstance,” the Court found a warrantless search of a probationer’s residence by a police officer constitutional. (Knights, supra, 534 U.S.at p. 119.) 13 The Knights Court noted that probationers have a “significantly diminished . . . reasonable expectation of privacy” and “do not enjoy ‘the absolute liberty to which every citizen is entitled.’” (Knights, supra, 534 U.S. at pp. 119-120.) Society, on the other hand, has significant interests in performing probation searches, including “probation-rehabilitation and protecting society from future criminal violations.” (/d. at p. 119.) The Court looked to the high recidivism rate of probationers and noted ““‘the very assumptionofthe institution of probation’ is that the probationer ‘is more likely than the ordinary citizen to violate the law.’” (/d. at p. 120.) Probationers also have moreincentive to conceal their criminalactivities and dispose of incriminating evidence. (/bid.) The state’s strong interest in “apprehending violators of the criminal law, thereby protecting potential victims of criminal enterprise, may therefore justifiably focus on probationers in a waythat it does not on the ordinary citizen.” (Jd. at p. 121.) Because the search before the Court in Knights was supported by ‘reasonable suspicion, however, the Court declined to reach the issue of | whethera suspicionless probation search comports with the Fourth Amendment. (/d. at p. 120, fn. 6.) In Samson v. California (2006) 547 US. 343 [126 S.Ct. 2193, 165 L.Ed.2d 250] (Samson), the Court reached that unresolved question and affirmatively held that a parole search may be conducted without any form ofparticularized suspicion. In Samson, an officer performed a search of a «714 knownparolee’s person without any suspicion of wrongdoing. (Samson, supra, 547 US. at pp. 846-847.) The Court conducted the sametotality of the circumstances balancing test that had been employed in Knights. (Id. at p. 848.) The Court found parolees have “severely diminished expectations of privacy byvirtue oftheir status alone.” (/d. at p. 852.) In fact, parolees have even fewer expectations of privacy than probationers “because parole is more akin to imprisonment than probation is to imprisonment.” (Jd. at p. 850.) “[A]n inmate-turned-parolee remains in the legal custody ofthe | California Department of Corrections” and must comply with pervasive regulation, including mandatory drugtests, restrictions on association with felons or gang members, mandatory meetings with parole officers, approval for a changein residence or occupation, approval for travel, restriction from criminal conduct and possession offirearms, specified weapons, or knives unrelated to employment, possible psychiatric treatment programs, abstinence from alcohol, and “[a]ny other condition deemed necessary by the Board [of Parole Hearings] or the Department [of Corrections and Rehabilitation] due to unusual circumstances.” (Id. at pp..851-852.) Because-of this pervasive regulation, which is clearly communicated to the parolee as a condition ofhis release, the Samson defendantdid not have “an expectation ofprivacy that society would recognize as legitimate.” (Jd.at p. 852.) 15 In contrast, the state has “substantial” interests in performing suspicionless searches of parolees. (Samson, supra, 547 U.S.at p. 853.) Parolees are “more likely to commit future criminal offenses” and the state faces “grave safety concerns thatattend recidivism.” (/d. at p. 853.) Suspicionless searches serve to reduce recidivism, protect the public, and promotereintegration ofthe parolee into society. (Jd. at pp. 853-854.) A reasonable suspicion standard would underminethesestate interests by giving parolees the opportunity to anticipate a search and conceal criminal activity. (/d. at p. 854.) Balancing the parolee’s severely reduced privacy expectations and the state’s serious concerns regarding recidivism, public safety, and reintegration of parolees into productive society, the Samson Court held suspicionless searches of parolees are reasonable under the Fourth Amendment. (/d. at p. 857.) 2. Third Party Expectations of Privacy This Court has repeatedly confronted the constitutionalityof a parole/probation search of a residence shared between a parolee/probationer and nonparolee/nonprobationer. In- Woods, the defendants shared a one- bedroom residence with a woman whoseprobation included a term allowing suspicionless searches of her residence. (Woods, supra, 21 Cal.4th at p. 672.) Officers believed one of the nonprobationer residents wasselling drugs out of the home. The officers were also awarethat a 16 probationer subject to a search condition wasresiding there. Based solely on the probationer’s search condition, officers searched the home,including the shared bedroom,and recovered evidence implicating the defendants in drug sales. (Woods, supra, 21 Cal.4th at pp. 672-673.) In upholdingthe search, this Court indicated that probation searchesare justified based on the theory of advanced consent; “In California, probationers may validly consent in advance to warrantless searches in exchangefor the opportunity to avoid service ofa state prison term.” (/d. at p. 674.) The Woods Court therefore applied well-settled law regarding consent searches of shared residences and held that officers may search those portions of a shared residence “over which the probationeris believed to exercise complete or joint authority.” (/d. at p. 681, citing United States v. Matlock (1974) 415 U.S. 164, 170-171 [94 S.Ct. 988, 39 L.Ed.2d 242] (Matlock).) The “commonauthority” theory of consentrests “on mutualuse 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 assumedtherisk that one of their number might permit the commonareato be searched.” (Woods, supra, 21 Cal4th at p. 676, quoting Matlock, supra, 415 U.S.at p. 171, fn. 7.) The court found that officers “generally may only search those portions ofthe residence they reasonably believe the probationer has | complete or joint control over.” (Woods, supra, at p. 682.) Because the officers reasonably believed the probationer exercised common authority 17 overthe single bedroom,the search wasjustified by her probation search condition. (Woods, supra, 21 Cal.4th at p. 676, fn3.) A yearlater in Robles, this Court again confronted a probation ~ search of an area shared between a probationer and nonprobationer, in that case an attached garage in a homeshared between the defendant and a probationer.subject to a search condition. (Robles, supra, 23 Cal.4th at pp. 793-794.) This Court again stated that probation searches are justified under the theory of advanced consent. | (id. at p. 795.) The Robles Court also noted the important societal interest served by warrantless probation searches: Warrantless searchesare justified in the probation context because they aid in deterring further offenses by the probationer and in monitoring compliance with the terms of probation. By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from.potential harm by probationers. (Robles, supra, 23 Cal.4th at p. 795 [citations omitted].) In accordance with Woods, this Court found the officers could search “commonor shared areas”ofthe residence pursuantto the probationer’s search condition. However, because the searching officers were not aware until muchlater that the garage wasshared with a probationer, the search in Robles was illegal. (Ud. at p. 798.) The Robles opinion discussed the varying levels of expectations of privacy held by the different occupants ofthe searched residence. (Robles, 18 supra, 23 Cal.4th at p. 798.) An individual subject to a probation search condition “has a severely diminished expectation of privacy overhis or her person andproperty.” (/bid.) Those whoreside with such a person “enjoy measurably great privacy expectations in the eyes of society.” (Ibid.) Those privacy expectations are affected, however, by sharing a residence with a probationer: For example, those wholive with a probationer maintain normal expectations of privacy overtheir persons. In addition, they retain valid privacy expectations in residential areas subject to their exclusive access or control, so longasthereis no basis for officers to reasonably believe the probationer has authority over those areas. (Robles, supra, 23 Cal.4th at p. 798.) Cohabitants of a probationer “have no cause to complain of searches that are reasonably and objectively related to the purposesof probation-for example, when routine monitoring occurs or when facts knownto the police indicate a possible probation violation that would justify action pursuant to a knownsearch clause.” (/d. at p. 799 [citations omitted].) Finally, in Sanders, officers searched a residence belonging to a parolee and nonparolee and discovered drugs hidden in footwear. At the time of the search, however, the officers were unawarethat one of the occupants was on parole. (Sanders, supra, 31 Cal.4th at pp. 323-324.) The | Sanders Court noted that the nonparolee “had a reduced expectation of privacy because she wasliving with a parolee subject to a search condition.” (/d. at p. 330.) However,the Court found the search violated 19 the nonparolee’s expectations of privacy because she “need not anticipate that officers with no knowledge of the [parolee’s] existence or search condition may freely invade their residence in the absence of a warrantor exigent circumstances.” (Sanders, supra, 31 Cal.4th at p. 330.) The Court found that the cohabitant’s status as a parolee, rather than a probationer, did not distinguish Robles; “the expectation of privacy of cohabitants is the same whetherthe search condition is a condition of probation or parole.” ([bid.) This Court has not addressed the permissible scope of a parole or probation search of a shared vehicle. The Fifth District Court of Appeals confronted that issue in People v. Baker (2008) 164 Cal.App.4th 1152 (Baker). In Baker, a car driven by a male parolee was stopped for speeding. The front seat passenger was a female nonparolee. After the driver admitted to being on parole, officers ordered the individuals out of the car — and searchedtheentire car, including a purse belonging to nonparolee that had beensitting at her feet beside the front passenger seat. (/d. at p. 1156.) Drugs were recoveredinside the purse. The Fifth District found the search violated the Fourth Amendment. Considering the parole search one based on advanced consent, the Baker court looked to whether the parolee had “commonauthority” over the nonparolee’s purse. (/d.at p. 1 158.) The court noted, “[w]hile those whoassociate with parolees or probationers must assumethe risk that when they share ownership or possession with a 20 parolee or probationer their privacy in these items mightbe violated, they do not abdicate all expectations of privacyinall personal property.” (Baker, supra, 164 Cal.App.4th at p. 1159.) A purse is such a personal item, functioning as “an inherently private repository for personal items.” ([bid.) The Baker court concludedthat there were nofacts indicating a reasonable suspicion that the male parolee driver shared ownership, control, or use of the purse that was kept directly beside the only female occupant of the car. (Ud. at pp. 1159-1160.) No other court of appeal has addressed the scope ofa parole or probation search in a vehicle shared by a third party. The lower court’s decision in this case was the only to address the propriety of a search based on a passenger’sparole status. (Slip opn.at 9.) C. Considering the Totality of the Circumstances, a Search of the Areas of the Vehicle Accessible to the Parolee was Reasonable In determining the reasonableness of the search conductedin this case, this Court must assess “on the one hand, the degree to whichit intrudes upon an individual’s privacy and,on the other, the degree to which it is needed for the promotion oflegitimate governmental interests.” (Knights, supra, 534 U.S.at pp. 118-119; accord Samson, supra, 547 US. at p. 848.) Because appellant was sharing his vehicle’s passenger compartmentwith a parolee subject to search terms, he was subjectto a 21 diminished expectation of privacy in the shared areas of the vehicle. In contrast, the state has a strong interest in monitoring and regulating individuals released early from prison on parole. To effectuate that vital state interest, officers must be able to search the parolee and his property. If those portions of the vehicle accessible to the parolee were nonetheless off limits during the parole search, a parolee would be permitted to frustrate the state’s ability to regulate his reentranceinto society by taking refuge in a nonparolee’s car. Balancing appellant’s diminished expectations of privacy and society’s vital interest in regulating parolees, a search ofthe back seat area which wasaccessible to the parolee was reasonable. 1. Appellant Was Subject to a Reduced Expectation of Privacy in the Areas of the Vehicle He Shared With the Parolee “The touchstone of Fourth Amendmentanalysis is whether a person ° has a constitutionally protected reasonable expectation ofprivacy,thatis, whetherhe or she has manifested a subjective expectation of privacy in the object of the challenged search that society is willing to recognize as . reasonable.” (Robles, supra, 23 Cal.4th at pp. 794-795.) In this case, appellant was subject to reduced privacy expectations becausethe area searched wasin a vehicle located on a public street and was shared with a parolee subject to search conditions. 22 Anindividualhas far less privacy interests in his or her vehicle than ina home. (See South Dakota v. Opperman (1976) 428 U.S. 364, 368 [96 S.Ct. 3092, 49 L.Ed.2d 1000]; Wyoming v. Houghton, supra, 526 U.S.at pp. 304-305; In re Arturo D. (2002) 27 Cal.4th 60, 68 [“individuals generally have a reduced expectation ofprivacy while driving a vehicle on public thoroughfares”’].) Onehasa lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personaleffects. ... It travels public thoroughfares where both its occupants andits contents are in plain view. (South Dakota v. Opperman, supra, 428 U.S.at p. 368.) Because the area searched wasa vehicle parked on a publicstreet, appellant’s expectation of privacy wasreduced. Additionally, by inviting a parolee to ride in the vehicle with him, appellant was subject to an even further reduced expectation of privacy. Gordon,the front-seat passenger, was on parole and subject to a suspicionless search condition. Consequently, Gordon had a severely diminished expectation of privacy. (Samson, supra, 547 U.S.at p. 852.) _ Appellant’s expectation of privacy was not coextensive with Gordon’s expectation. Because appellant was neither a probationernora parolee, he maintained normal expectations of privacy in his person andareasofthe vehicle he did not share in commonwith the parolee. (Robles, supra, 23 Cal.4th at p. 798.) Nevertheless, by sharing the vehicle with the parolee, 23 appellant subjected himself to a reduced expectation of privacy in the shared areasofthe car. Had Deputy Mihai searcheda residence shared between appellant and the parolee, the scope of the search would have been well defined. This Court has heldthat an individual has “a reduced expectation of privacy” in the areas of his or her homethatare shared with a parolee/probationer cohabitant. (Sanders, supra, 31 Cal.4th at p. 330; see also Robles, supra, 23 Cal.4th at p. 799 [defendant subject to a reduced expectation of privacy in areas ofresidence shared with probationer]; Woods, supra, 2\ Cal.4th at p. 684 (dis. opn. of Brown, J.) [“Those associating with a probationer assume the ongoingrisk that their property . and effects in commonorsharedareas of a residence may be subject to search’].) The California Court of Appeal has recognized that an individual diminishes his or her own expectations of privacy by sharing space with a parolee/probationer. (See, e.g., People v. Pleasant (2004) 123 Cal.App.4th 194, 197 [“Persons who live with probationers cannot reasonably expect privacyin areas of a residence that they share with probationers”): People v. Boyd (1990) 224 Cal.App.3d 736, 749 [by spending the night with one parolee in another parolee’s trailer, defendant (a nonparolee) had a lessened expectation of privacy]; People v. Triche (1957) 148 Cal-App.2d 198, 203 [by sharing a residence with “a parolee subject to special rules of supervision,” a nonparolee’s right to privacy 24 “must be to someextent restricted in the public interest”]; Russi v. Superior Court (1973) 33 Cal.App.3d 160, 168.) Indeed, multiple jurisdictions outside California recognize that co-habitants of parolees/probationers have a diminished expectation of privacy in the space they share with the parolee/probationer. (See, e.g., State v. West (Wis. 1994) 517 N.W.2d 482, 490-491; State v. Johnson (Utah 1987) 748 P.2d 1069, 1073; State v. Hurt (N.D. 2007) 743 N.W.2d 102, 108-109; State v. Yule (Fla. Ct. App. 2005) 905 So.2d 251, 264.) In the context of a residential search, this Court has held that a parole/probation search may include areas of a home subject to the parolee/probationer’s exclusive or joint access or control, including any “commonor shared areas” of the residence. (Robles, supra, 23 Cal.4th at p. 798 [attached garage]; Woods, supra, 21 Cal.4th at p. 676 [shared bedroom].) Although areas subject to the parolee/probationer’s joint access or control are subject to search, cohabitants ‘maintain normal privacy expectations over their persons andresidential areas subject to their exclusive access or control, provided there is no basis for officers to reasonably believe the parolee/probationer has authority over those residential areas. (Robles, supra, 23 Cal.4th at p. 798; see, e.g., People v. Pleasant, supra, 123 Cal.App.4th at pp. 197-198 [reasonableto believe probationer had joint access and authority over locked room occupied by her adult son because she had a keyto the room]; People v. Smith (2002) 95 25 Cal.App.4th 912, 919-920 [reasonable to believe male probationer had joint access and wasuSing a purse found in a shared bedroom becausepurse contained key to probationer’s safe and room wasbeing used for criminal enterprise].) By sharing a residence with another, an individual assumes the risk that the cohabitant will consent to a search of areas over which heor she has ‘joint access or control for must purposes.” (Matlock, supra, 415 US. at p. 171.) Similarly, in the context of a parole or probation search, one assumesa risk by sharing a residence with a parolee/probationer that commonareas of the home will be subject to a parole/probation search. (Robles, supra, 23 Cal.4th at p. 799.) “[C]ohabitants have no cause to complain of searches that are reasonably and objectively related to the purposesofprobation [or parole].” (/bid.) Here, appellant assumeda similar risk by inviting a parolee to share his vehicle. (See Caskey, Cal. Search and Seizure (2010 ed.) § 9:4, p. 550 [““A person wholives with, rides with or otherwise associates with a parolee or probationer assumes the risk law enforcementofficers may search areas or items the officer reasonably believes are in complete or joint control (or access) of the parolee or probationer’’}.) It would be unreasonable for appellant to expect that those areas of the vehicle shared with the parolee— _ whois subject towarrantless, suspicionless searches at any time and by any memberoflaw enforcement—wouldretain their full Fourth Amendment 26 protection. By allowing a parolee to use portions ofhis vehicle, appellant reduced his expectation of privacy in those shared spaces. (See People v, Smith, supra, 95 Cal.App.4th at pp. 919-920 [purse that appearedjointly used byprobationer, even if not jointly owned,subject to probation search].) He has no cause to complain about a legitimate parole search of the shared space within the vehicle by an officer aware of the parolee’s presence and search condition. In this case, the commonorshared areas of the vehicle included the passenger compartment of appellant’s car. There is no evidencein the record that appellant’s vehicle included separate compartments within the interior. There is nothing indicating that the front seat area was blocked in any way from the back seat area. There is no evidence indicating the back seat area was inaccessible from the front seat where Gordon wasseated. Byall accounts, appellant was driving an older model Oldsmobile or Buick with a normal passenger compartment. (Supp. CT 8.) Byvirtue of occupyingthe front passengerseat, the parolee hadjoint access and control overthe passenger compartmentaccessible to him. This included the back seat area where the chip bag and shoe were discovered. Neither the chip bag nor the shoe constituted “an inherently private repository for personal items”andthe facts did notindicate that either object was particularly associated with any one occupantin the car. (Baker, supra, 164 | Cal.App.4th at p. 1159.) Deputy Mihai reasonablybelieved that the parolee 27 hadaccess to or control overofthese items and properly included them within the parole search. Appellant did not retain full Fourth Amendmentprivacy protections in his vehicle. Given the reduced expectation of privacy in one’s vehicle and that his passenger parolee was reasonably considered to be sharing the accessible areas of the passenger compartment, the search did not transgress on anyreasonable privacy expectations. 2. Suspicionless Parole Searches Serve a Significant State Interest Next, this Court must weight appellant’s reduced privacyinterests against the degree to whichthe search “is needed for the promotion of | legitimate governmentalinterests.” (Knights, supra, 534 U.S.at pp. 118- 119.) California has an “overwhelminginterest” in supervising parolees. (Samson, supra, 547 U.S.at p. 853, quoting Pennsylvania Bd. ofProb. & Parole v. Scott (1998) 524 U.S. 357, 365 [118 S.Ct. 2014, 141 L.Ed.2d 344].) The state’s interests in reducing recidivism and promoting | reintegration following incarceration “warrantprivacyintrusions that would not otherwise be tolerated under the Fourth Amendment.” (Samson, supra, at p. 853.) The warrantless, suspicionless searchis a vital part of parole supervision. As the United States Supreme Court has recognized, “parolees . . are morelikelyto commitfuture criminal offenses” and thereare “grave _ safety concernsthat attend recidivism.” (/d. at pp. 853-854.) Additionally, 28 parolees and probationers “have even moreofan incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal.” (Knights, supra, 534 U.S.at p. 120.) The state’s interest in regulating and monitoring parolees is even stronger than probationers because parole is “more akin to imprisonment.” (Samson, supra, 547 U.S.at p. 850.) [A]s distinguished from those not convicted of anything, those convicted of mere misdemeanorsandeither jailed or not jailed, and those convicted of felonies but not imprisoned for lengthy periods, parolees are persons deemedto have acted more harmfully than anyone except those felons not released on parole. (United States v. Crawford (9th Cir. 2004) 372 F.3d 1048, 1077 (concur. opn. of Kleinfeld, J.).) | If areas of the vehicle accessible to the parolee were nonetheless excluded from the parole search, the parolee would be permitted to end-run his or her search condition simply by riding as a passenger in a car driven by anonparolee. Although the parolee would havethe entire passenger compartmentavailable to stash his or her contraband or weapons,officers would berestricted to searching only the seat occupied bythe parolee. This would enable a paroleeto flout his search condition by placing contraband or weapons within arm’s reach while riding as a passengerwithout any repercussions. Parolees could effectively appropriate the normal _ expectations of privacy held by average citizens and underminethestate’s interests in regulating parolee’s reintroduction into society and protecting 29 the public. (See Russi v. Superior Court, supra, 33 Cal.App.3d at p. 169; State v. Johnson, supra, 748 P.2d at p. 1073 [“If the Fourth Amendment rights of nonparolees living with parolees were not reduced, a parolee could avoid all warrantless parole searches by living with a nonparolee and asserting the nonparolee’s constitutional rights,and thus emasculate one significant feature of the parole system’’]; State v. West, supra, 517 N.W.2d at p. 486.) “[T]he Fourth Amendmentdoes not render the States powerless to address these concerns effectively.” (Samson, supra, 547 U.S.at p. 854 [emphasis in original].) The state’s overwhelminginterest in the effective functioning ofits parole system requires that the parole search of a shared vehicle include those areas subject to the parolee’s joint access or control. 3. Underthe Totality of the Circumstances, the Search Was Reasonable Balancing society’s overwhelminginterest in supervising individuals who were, and likely remain, a threat to society, with the parolee and nonparolee occupants’ privacy expectations, the search ofthe back seat area accessible to the parolee was reasonable. The officer could not search the nonparolee’s person or areas of the vehicle that it was not reasonable to believe were subject to the parolee’s access or control. In this case, Deputy Mihaidid not search appellant’s person, which would clearly have been outside the permissible scope of the parole search. Additionally, the deputy 30 did not find the contrabandin the trunk or some other compartment inaccessible to the parolee. The drugs were found in a shoe andthe needle wasfound in a chip bag. Both items were located in the back seat area of the car. (Supp. CT 9-10.) As a passengerseated in the front passenger seat, the parolee had access tothis area of the car and the back seat area was properly included within the scope of the parole search. As such,thetrial court properly denied appellant’s motion to suppress. D. The Court of Appeal’s Analysis is Erroneous The Court of Appeal failed to conduct the above balancingtest as required by the United States Supreme Court. The court ignored the totality of the circumstances andinstead crafted a bright-line rule. The courtbroke with prior law regarding the scope ofa residential parole search. and effectively granted far greater protection to a vehicle than a home. By failing to acknowledge that passengers mayjointly possess items ina vehicle, the court’s decision also contradicts well-established law in the context of sufficiency of the evidence and willlead to absurdresults. Finally, the court placed dispositive weight on the passenger’s legal authority to consent, despite the fact that a parole search is constitutionally distinct from consent search. 31 1. The Court of Appeal Analysis Fails to Follow Knights’ and Samson’s Balancing Test The Court of Appeal crafted a bright-line rule divorced from the facts of the case, thus ignoring the totality of the circumstances balancing test required by the United States Supreme Court in both Knights and | Samson, The Court of Appeal concluded that appellant “gave up none ofhis own expectation of privacy” by inviting a parolee to ride asa passengerin his vehicle. (Slip opn. at p. 11.) “Schmitz clearly had a reasonable expectation of privacy in his glove box, his console, his door pockets, his ownseat, the back seat — indeed every part ofhis car except thefront passenger seat where the parolee wassitting.” (Slip opn.at p. 11 | [emphasis added].) Becauseappellant was the owneranddriver, the court concludedthat he did not cede any authority over the backseatto the front seat passenger. “The parolee hadno right to open packages,eat food, or even read magazines he foundin the back seat.” (Slip opn.at p. 11.) The court found that the parolee “could only obtain authority over the chip bag at issue here by claiming ownership, which — given his lack of search and seizure rights — would have been bootless.” (Slip opn. at pp. 11-12.) The determination regarding what area the parolee had accessto or control over was a question of fact for the trial court to resolve. (Woods, supra, 21 Cal.4th at p. 673.) Rather than consider the record below in the 32 light most favorable to respondent and resolveall factual conflicts “in the manner mostfavorable to the [superior] court’s disposition on the [suppression] motion”as required (Woods, supra, 21 Cal.4th at p. 673), the Court of Appeal refused to consider which portions of the vehicle constituted common,shared space with the parolee. The court’s assertion that the front seat passengerlacks the “right” to touch things in the back seat was not based on anything the officer observed aboutthe vehicleorits occupants. The court’s absolute rule that appellant retained full privacy expectations everywhere except“the front passenger seat where the parolee wassitting” has no basis in the facts developed below. The creation of a bright-line rule contradicts the United States Supreme Court’s dictate that the reasonablenessofa parole search should be determined from the totality of the factual circumstances. (Knights, supra, 534 US.at pp. 118-119; Samson, supra, 547 U.S.at p. 848; accord Reyes, supra, 19 Cal.4th at p. 750 [“Whatis reasonable depends uponall the circumstances surrounding the search and seizure”].) In fact, the United States Supreme Court has “consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry.” (Ohio v. Robinette (1996) 519 U.S. 33, 39 [117 S.Ct. 417, 136 L.Ed.2d 347].) | The Court of Appeal’s decision disregardedthis firmly-rootedprinciple. 33 2. The Court Of Appeal’s Rule Grants Greater Privacy Expectations to a Vehicle Than a Home The effect of the Court of Appeal’s rule is to afford far more privacy to individuals in a car than a home,thus contradicting the well-established Fourth Amendmenthierarchy. Asexplained above,in the context of a residential parole search, | areas subject to the parolee’s exclusive or joint access or control are properly included within the scope of the search. The rule pronounced by the Court of Appeal significantly deviates from this standard. The court limited the search to the area used exclusively by the parolee, the actual seat he was occupying. Thus, pursuant to the Court of Appeal’s decision, a homesearch mayincludeareas subject to exclusive orJoint use by the parolee, but a vehicle search is limited to the areas subject to the parolee’s exclusive use. The Court of Appeals found that appellant “gave up none of his own expectation ofprivacy” by inviting a parolee to ride in his vehicle. (Slip opn. at p. 11.) Butin the context of aparole search of a residence shared with a parolee, this Court has specially held thatcohabitants ofparolees have “a reduced expectation of privacy” in the commonor shared areas of the home. (Sanders, supra, 31 Cal.4th at p. 330; see Part C.1. supra.) ‘The Court of Appeal’s decision in this case contradicts this Court’s prior 34 decisions by concluding that appellant retained full Fourth Amendment privacy expectations despite the presenceofa parolee in his vehicle. In assessing appellant’s expectations of privacy, the Court of Appeal noted, “there was no evidence Schmitz Anew his passenger wasa parolee.” (Slip opn.at p. i [emphasis in original].) But in the context of a residential search, this Court has never applied a requirementthat an individual know they are living with a parolee/probationer in order to be subjected to a reduced expectation of privacy in the commonor shared areas of the residence. (See Woods, supra, 21 Cal.4th at p. 668; Robles, supra, 23 Cal.4th at p. 789; Sanders, supra, 31 Cal.4th at p. 318.)° * To the extent the court’s decision seeks to create a requirementthat the defendant know heorsheis sharing space with a parolee, such a requirement is not supported by the law and is untenable. Even if appellant was unawarethat his passenger wasa parolee,his lack of knowledge does not transform otherwise lawful police activity into improper conduct. The purposeofthe exclusionary rule is to “deter future unlawful police conduct.” (Sanders, supra, 31 Cal.4th at p. 324.) If the searching officeris aware of the passenger’s parole status and conducts a properparole search, appellant’s lack of prior knowledge about his passenger does not have any effect on the propriety of the officer’s conduct. (Russi v. Superior Court, supra, 33 Cal.App.3datp.170.) | Furthermore, a knowledge requirement would be wholly unworkable: It would require the officer, once he or she has learned that they are dealing with a parolee, to inquire ofall the other occupants of the car whether they knew that individual was on parole. Those individuals would have noreasontotell the truth. (See Russi v. Superior Court, supra, 33 Cal.App.3d at p. 167 [noting, in the context of a probation search of a shared residence, that a knowledgerequirement “would be virtually impossible to prove’’].) The facts in the instant caseunderscore this concern. Appellant and Gordon were friends for two to three years prior to the offense and yet the ~ (continued...) 35 Bylimiting a parole search to the seat used by the parolee but not any shared space within the car and finding appellant did not in any way reduce his expectation of privacy by sharing his vehicle with a parolee,the Court of Appealeffectively granted far greater privacy protections to individuals in car than a home. Such rule contradicts the weight of Fourth Amendmentjurisprudence. Thelaw isclear that “physical entry of the homeis the chief evil against which the wording of the Fourth Amendment is directed.” (Sanders, supra, 31 Cal.4th at p. 324, quoting Payton v. New York (1980) 445 U.S. 573, 585 [100 S.Ct. 1371, 63 L.Ed.2d 639].) The very core of the Fourth Amendmentis “the right of a man to retreat into his own homeandthere be free from unreasonable governmental intrusion.” (Silverman v. United States (1961) 365 U.S. 505, 511 [81 S.Ct. 679, 5 L.Ed.2d 734].) “[I]t is beyond dispute that the homeis entitled to special protection as the center of the private lives of our people.” (Georgia v. Randolph (2006) 547 U.S. 103, 115 [126 S.Ct. 1515, 164L.Ed.2d 208].) In contrast to this “most stringent Fourth Amendment protection” afforded to private homes, an individual maintainsfar less privacy expectationsin their vehicle. (United States v. Martinez-Fuerte (1976) 428 U.S. 543, 561 [96 (...continued) Court of Appeal found there was no evidence appellant knew Gordon was on parole. 36 S.Ct. 3074, 49 L.Ed.2d 1116].) The Court of Appeal’s decision contradicts this well-established Fourth Amendmenthierarchy. 3. The Court of Appeal’s Decision Contradicts Well- Established Law Regarding Joint Possession Byfailing to acknowledge that a passenger may ownor possess items in someoneelse’s vehicle, the Court of Appeal’s decision contradicts well-established law regarding joint possession. The Court of Appeal held that a passenger has no “right” to touch anything in a car that he does not ownor has not be entrusted to him. On the contrary, the law is clear that an individual may possess items in a vehicle even whennotin control of the vehicle as the driver. (See, e.g., People v. Evans (1973) 34 Cal.App.3d 175, 182-183 [sufficient evidence front seat passenger possessed drugs located in back of van]; People v. Vermouth (1971) 20 Cal.App.3d 746, 755 [probable cause to arrest passenger for unlawful possessionofbilly club located next to driver’s side door]; Rideoutv. Superior Court (1967) 67 Cal.2d 471, 475 [probable cause that back seat passengers were in possession of marijuana hidden behind back seat]; People v. Mendoza (1986) 183 Cal.App.3d 390, 395-396 [sufficient evidence front seat passenger was in possession of contraband found next to front passengerseat].) Items in a vehicle may be jointly possessedbyall of its occupants. (Vermouth, supra, at p. 755.) Whether there is sufficient evidence that an occupantof a vehicle is in possession of 37 contraband found within it depends onthetotality of the facts in a given case. (See, e.g., People v. Tharp (1969) 272 Cal.App.2d 268, 273-274 [considering totality of circumstances, including the character of the bag searched, to determine whether there was sufficient evidence defendant possesseda case of drugs found in a vehicle he co-occupied]; Peoplev. Vermouth, supra, 20 Cal.App.3d at p. 755 [Whetherthere is probable cause to arrest more than one occupantofa vehicle halted by the police on a public highway for a felony based upon possession of contraband observed in the car generally depends uponthe facts in a given case”].) The Court of Appeal’s determination that a passenger has no right to touch anything in a car he does not ownor has not been entrusted to drive contradicts this well-established law. It makeslittle sense that the front seat passengercould be properly convicted ofpossessing items in the back seat if the totality of the circumstances prove possession(see, e.g., People v. Evans, supra, 34 Cal.App.3d at pp. 178-179, 182-183), but those items could neverbe included, despite the factual circumstances, within the scope of his parole search. | 4. The Court of Appeal’s Decision Leads to Absurd Results Byfailing to consider the totality of the circumstances, the Court of Appeal announceda rulethat will lead to absurdresults. 38 According to the Court of Appeal, the only way a front seat passenger’s parolee status can authorize the search of an item in the back seat of someoneelse’scaris if the parolee claims ownership ofthe item. (Slip opn. at pp. 11-12.) The court held that the parolee “could only obtain authority overthe chip bag at issue here by claiming ownership, which — given his lack of search and seizure rights — would have been bootless.” (Slip opn.at pp. 11-12.) Thus, the court’s rule not only fails to take into accountthe totality of the factual circumstances,it actually requires the officer to ignore all factual circumstancesindicating the parolee has access . to or control over property in the car except a claim to ownership. And even the Court of Appeal acknowledges that such a claim is unlikely to be forthcoming given the parolee’s knowledgethat he is subject to a search condition. Thus, the court’s rule would require an officer with obvious reason to believe items in the back seat area belong to or are being used by the parolee front seat passenger to ignore those items during a parole search. For example, in a vehicle occupied by a male nonparolee driver and a female parolee front seat passenger, if an officer observed a woman’s purse or clothing in the back seat, the officer would not be permitted to search those items despite the obvious reasonableness ofthe belief that the items belong to the female parolee. Even if the officer had reason to believe the parolee placed items in the carin an effort to end-runhis parole search 39 terms, the officer would be required underthe decision below to ignore that evidence absenta claim to ownership bythe parolee. The Court of Appeal’s requirement that only a claim to ownership can establish a relationship between the parolee and the item sufficientto authorize a séarch would, in practice, create a requirement that officers ask who an item belongs fo prior to including the item in the parole search. Several courts have explicitly rejected such a requirement, instead finding a reasonable suspicion underthe totality of the circumstances standard appropriate. (See People v. Baker, supra, 164 Cal.App.4th at p. 1160; People v. Smith, supra, 95 Cal.App.4th at p. 918; People v. Boyd, supra, 224 Cal.App.3d at pp. 745-746, 749-750 [“Such a rigid rule would unnecessarily bindthe officer to the answergiven, regardlessofits veracity”]); People v. Britton (1984) 156 Cal.App.3d 689, 701 [An officer could hardly expect that a parolee would claim ownership of an item which he knew contained contraband”]; United States v. Davis (9th Cir. 1991) 932 F.2d 752, 760.) The Court of Appeal’s rule, divorced from any consideration of the factual circumstances, is unworkable. 5. The Court of Appeal’s Decision Erroneously Focuses on Consent Law The Court of Appeal’s analysis places dispositive weight on whether — the parolee, as a nonownerand nondriver, was legally entitled to consent to 40 the search of appellant’s car. This focus on consent law was erroneous because a parole search is constitutionally distinct from a consent search. The court applied the test set forth in Matlock for determining the constitutionality of consent given bya third party: The authority which justifies the third-party consent does notrest upon the law of property, with its attendanthistorical and legal refinements,[citations] but rests rather on mutualuse 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 assumedtherisk that one of their number might permit the commonarea to be searched. (Matlock, supra, 415 U.S.at p. 172, fn. 7.) The court found that Gordon did not have “commonauthority” over appellant’s car because Gordon,as a nonownerpassenger, did not have“the right to permit the inspection [of the vehicle’s interior] in his own right.” (Slip opn. at pp. 10-11.) In this case, there was no evidence that Schmitz, merely by allowing a parolee to ride as a passenger in his car, ceded to that parolee any authority overthecaratall, let alone the authorityto permit inspections of the vehicle’s interior “in his own right.” Indeed there was no evidence Schmitz knew his passenger was a parolee. Had Schmitz left the vehicle in the parolee’s possession, or allowed him to drive it, that would be different. [Citations]. But Schmitz did neither. Instead he simply allowed the parolee to visit the car temporarily as a passenger. (Slip opn. at p. 11 [emphasisin original].) Because mere passengerstatus alone, absent other circumstancesindicating ownership or another sufficientinterest, does not grant an individual an expectation of privacy in 41 a vehicle’ orthe right to consent to a search of the vehicle,’ the Court of _ Appeal concluded that Gordon could not consent to the search of appellant’s car. (Slip opn. at p. 11.) The Court of Appeal’s analysis fails because the search of appellant’s car was not based on consent. A strict application of the Matlock “commonauthority” doctrine was faulty here because a parole search is not simply a consent search. The constitutional basis for parole searches has been a moving target. (See 2 Ringel, Searches and Seizures, Arrests and Confessions (2ded. 2010) § 17:8, pp. 17-27 [discussing multiple constitutional rationales for warrantless probation and parole searches]; 5 LaFave, Search and Seizure: A Treatise on the Fourth Amendment(4th ed. 2010) § 10:1, p. 434 [same].) The practice of conducting warrantless parole and probation searches has been upheld by this Court and the United States Supreme Court under various theories, including the “special needs” exceptionto the warrant requirement (see, e.g., Griffin v. Wisconsin, supra, 483 U.S. at p. 872), advanced consent 4 Pursuant to Rakasv. Illinois (1978) 439 U.S. 128[99 S.Ct. 421, 58 L.Ed.2d 387], mere nonownerpassengers do not have standing to contest the search of a vehicle. > Whether a passengerhaslegal authority to consent to a search of the vehicle they are occupying depends on the factual circumstances presented. (See U.S. v. Chavez Loya (8th Cir. 2008) 528 F.3d 546, 554; United States v. Morales (3d Cir. 1988) 861 F.2d 396, 400 fn. 9; United States v. Poulack (8th Cir. 2001) 236 F.3d 932, 934-936 [passenger who rented the vehicle had authority to consent to search].) 42 (see, e.g., Woods, supra, 21 Cal.4th at p. 674; Robles, supra, 23 Cal.4th at p. 795; People v. Bravo (1987) 43 Cal.3d 600, 608), and the totality of the circumstances including the severely reduced expectations of privacy held by parolees and probationers(see, e.g., Samson, supra, 547 U.S. at pp. 850- 853; Knights, supra, 534 U.S. at pp. 118-119; Reyes, supra, 19 Cal.4th at p. 752; In re Tyrell J., supra, 8 Cal.4th at pp. 81-83). Althoughthis Court has at various times treated parole and probation searches differently under the theory that probation searches are consented to in advance while parole searches are mandatory (Reyes, supra, 19 Cal.4th at pp. 748-749),it is now clear that both probation and parole searches have an equalbasis in consent. Since 1997, the Penal Code requires that in orderto be released on parole, prisoners must consent in writing to warrantless, suspicionless searches. Section 3067° provides, “[a]ny inmate whoiseligible for release on parole pursuantto this chapter shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time ofthe day or night, with or without a search warrant and with or without cause.” (§ 3067, subd.(a).) If the inmate refuses to consent to the above search terms,heor she is required to serve ° Section 3067 only applies to parolees who committed their offenses after January 1, 1997. (§ 3067, subd. (c).) This provision did not applyto the parole search analyzed by this Court in Reyes and wasnot addressedin that case. 43 the remainderofhis or her sentence, without worktimecredits. (§ 3067, subd. (b).) Pursuant to section 3060.5, “the parole authority shall revoke the parole of any prisoner whorefuses to sign a parole agreementsetting forth the general and any special conditions applicable to the parole . . . and shall order the prisoner returnedto prison.” (§ 3060.5.) An inmate who refuses to consent to search terms is not paroled and mustserve the entirety of his or her sentence. (People v. Middletown, supra, 131 Cal.App4th at pp. 739-740; People v. Smith, supra, 172 Cal.App.4th at p. 1361, fn. 2.) But parole and probation searchesare not simply consent searches. (Caskey, Cal. Search and Seizure (2010 ed.) § 9:4,p. 550 [noting parole search is more than a consent search].) The United States Supreme Court’s decisions in Knights and Samson makeclearthat parole searchesare independently justified underthe totality of the circumstances, including the severely diminished expectations ofprivacy held by parolees and the overwhelmingstate interest in regulating those released from prisonearly. (Knights, supra, 534 U.S. at pp. 1 18-1 19; Samson, supra, 547 U.S.at p. 848.) Parole and probation searches have a basis in consent, “albeit with the recognition that there is a strong governmental interest supporting the consent conditions-the need to supervise probationers and parolees and to ensure compliance with the termsoftheir release.” (People v. Baker, supra, 164 Cal.App.4th at p. 1158.) 44 The parolee’s severely reduced expectation of privacy and society’s strong interest in regulating parolees by way of a warrantless search distinguish a parole search from a simple consent search. A normal search based on consent does not involve the addedlayer that a party to the search is subject to pervasive governmentregulation and limited Fourth Amendmentrights. Nor does a regular consent search involve consideration of the state’s powerful need to conductthe search in order to supervise and assimilate those released from prison early. Simply importing consent jurisprudence, as the Court of Appeal did in this case, ignores the constitutional distinction between a parole search and a consent search. Thus, whether or not Gordon could consent to the search of appellant’s car in the event Gordon wasnot a paroleeis irrelevant. Gordon wasa parolee and he and any property under his control were subjectto _ warrantless, suspicionless searches. Gordon’sstatusas a paroleeis critical to the totality of the circumstances analysis, informing both appellant’s reduced expectation of privacy in the shared portions of the vehicle and society’s interest in conducting the search. (See Knights, supra, 534 U.S.at p. 119; Samson, supra, 547 U.S.at p. 848.) The Court of Appeals erred by dismissing this critical circumstance and analyzing the search in this case as if it was based solely on consent given by a passenger. 45 CONCLUSION For the reasons stated above, respondent respectfully requests that this Court reverse the judgment of the Court of Appeal. Dated: January 26, 2010 ERH:nh SD2010703399 70398428 Respectfully submitted, KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General STEVE OETTING Supervising Deputy Attorney General EMILY R. HANKS Deputy Attorney General Attorneysfor Plaintiffand Respondent 46 . CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT'S OPENING BRIEF ON THE MERITSusesa 13 point Times New Romanfont and contains 10,432 words. . Dated: January 26, 2010 EDMUND G. BROWN JR. AttorneyGeneral of California .- a EMILY R. HANKS Deputy Attorney General Attorneysfor Plaintiffand Respondent DECLARATION OF SERVICE BY U.S. MAIL & ELECTRONIC SERVICE Case Name: People v. Douglas George Schmitz Case No.: S186707 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On January 26, 2011, I served the attached RESPONDENT’S OPENING BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: William D. Farber Alan Carlson Attorney at Law Chief Executive Officer P.O. Box 2026 Orange County Superior Court San Rafael, CA 94912 Central Justice Center Attorneyfor Appellant Schmitz 700 Civic Center Drive West 2 Copies Santa Ana,CA 92701 For Delivery to: The Honorable John S. Adams The Honorable Tony J. Rackauckas Court of Appeal of the State of California District Attorney Fourth Appellate District, Division Three Orange County District Attorney's Office P.O. Box 22055 . 401 Civic Center Drive West Santa Ana, CA 92702 Santa Ana, CA 92701 and I furthermoredeclare, I electronically served a copy of the above document from Office of the Attorney General's electronic notificationaddress ADIEService@doj.ca.gov on January 26, 2011 to Appellate Defenders, Inc.'s electronic notification address eservice-criminal@adi- sandiego.com. I declare under penalty of perjury under the lawsofthe State of California the foregoingis true and correct and thatthis declaration was executed on January 26, 2011, at/San Diego, California. N. Hernandez . Declarant $D2010703399 70426049.doc