PEOPLE v. CANADA (1987)

OPINION

THE CASE

Appellant was charged with driving or taking a vehicle belonging to another without consent and with the intent to permanently deprive the owner of title or possession in violation of Vehicle Code section 10851, subdivision (a).   The information additionally alleged a prior felony conviction as a sentence enhancement pursuant to Penal Code section 667.5, subdivision (b).

At the beginning of trial, appellant moved to suppress evidence obtained during a parole search of the residence of Cheryl Palmer.   This motion was denied.

The jury found appellant guilty of violating Vehicle Code section 10851, subdivision (a), as charged.   The jury was then told that appellant had been charged with a prior felony conviction which also had to be tried by the jury before it could be used as an enhancement and that the jury would be asked to return another day.

The following day, the case was continued, over defense objection, to enable the prosecutor to obtain evidence regarding the prior conviction allegation.   The trial court stated that a new jury would be selected at that time, and the jury was discharged.   Thereafter, appellant waived his right to a jury trial on the prior conviction allegation.   The court found the enhancement allegation to be true.   Appellant was sentenced to the upper term of three years in state prison, plus one year for the enhancement.

THE FACTS

On May 4, 1985, appellant was permitted by a salesman at a used car lot in Bakersfield to test drive a 1977 Ford Mustang alone.   Appellant stated he would return in 20 to 30 minutes but never did.

Appellant was arrested May 16, 1985.   When questioned by Greg Bender, a detective for the Bakersfield Police Department, appellant admitted driving the Mustang but insisted he had returned it.   Appellant stated he was on parole and gave Cheryl Palmer's address as his residence.

Detective Bender contacted Cheryl Palmer May 15, the day before appellant's arrest, and was told by Ms. Palmer that appellant no longer lived at her residence.   On May 16, Detective Bender spoke with appellant's parole agent who suggested that Detective Bender search Ms. Palmer's residence.   Appellant's parole records originally listed Ms. Palmer's address as his residence but showed an address change effective April 30, 1985.

On May 21, 1985, the Mustang was found in Fresno.

On May 23, 1985, Detective Bender conducted a parole search at Ms. Palmer's residence.   Ms. Palmer handed Detective Bender a box which she identified as containing appellant's belongings.   In the box was a jacket which contained a pair of keys.   The keys fit the Mustang.

DISCUSSION

I. Whether the parole search of the residence was illegal in the absence of probable cause to believe appellant resided there.

Appellant contends the parole search of Cheryl Palmer's residence was improper because Detective Bender did not have probable cause to believe that appellant resided there.

 As a condition of parole, appellant, his residence and any property under his control were subject to a warrantless search by any law enforcement officer or parole agent.   A condition such as this is reasonable, and a search pursuant to it is justified whenever there is a reasonable suspicion that the parolee has been involved in criminal activity.  (People v. Burgener (1986) 41 Cal.3d 505, 532–536, 224 Cal.Rptr. 112, 714 P.2d 1251.)   Here, the disappearance of the automobile shortly after it was entrusted to appellant for the purpose of a test drive supported a reasonable suspicion that appellant was involved in criminal conduct, and thus a parole search was justified.

 Before the passage of Proposition 8, which added article I, section 28, subdivision (d) to the California Constitution, neither law enforcement officers nor parole agents could properly conduct a warrantless search of a parolee's residence unless they reasonably believed that the residence was in fact the parolee's.  (People v. Palmquist (1981) 123 Cal.App.3d 1, 11, 176 Cal.Rptr. 173.)   This requirement was based on the rule established in California by People v. Martin (1955) 45 Cal.2d 755, 290 P.2d 855 that “ ‘whenever evidence is obtained in violation of constitutional guarantees, such evidence is inadmissible whether or not it was obtained in violation of the particular defendant's constitutional rights, ․’ ” (People v. Kanos (1971) 14 Cal.App.3d 642, 650, 92 Cal.Rptr. 614.)   However, Proposition 8 abrogated this “vicarious exclusionary rule.”  (In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744.)   Thus, in order to challenge an alleged illegal search, a defendant in California must now show he was “the victim of the unlawful search.”  (People v. Hamilton (1985) 168 Cal.App.3d 1058, 1062, 214 Cal.Rptr. 596.)

 Therefore, the law enforcement officer's lack of a reasonable belief that the residence being searched is the parolee's no longer invalidates the search;  the parolee simply does not have standing to challenge the search of a third party's residence.

As discussed above, a parole search of appellant's residence and possessions was justified.   Regardless of whether Detective Bender's belief that appellant resided at Ms. Palmer's address was reasonable, the search was valid as to appellant.

II.–III.**

The judgment of conviction is affirmed;  the one-year sentence enhancement based on the prior conviction is ordered stricken from the abstract of judgment.   The trial court is ordered to send a copy of the amended abstract to the appropriate authorities.

FOOTNOTES

FOOTNOTE.   See footnote 1, ante.

FRANSON, Acting Presiding Justice.

HAMLIN and MARTIN, JJ., concur.