Opinion
F073045
01-19-2017
In re K.F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. K.F., Defendant and Appellant.
Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Doris A. Calandra, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 12CEJ600083-5, 5A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Gary R. Orozco, Judge. Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Doris A. Calandra, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Gomes, J. and Franson, J.
-ooOoo-
K.F., a minor, was adjudged a ward of the court pursuant to Welfare and Institutions Code section 602, following his admissions that he committed misdemeanor trespass (Pen. Code, § 602, subd. (m)) and robbery (§ 211). On appeal, he claims defense counsel was ineffective in stipulating to facts concerning K.F.'s motion to suppress evidence, and that the motion to suppress should have been granted. We affirm.
Further statutory references are to the Penal Code unless otherwise stated.
PROCEDURAL HISTORY
On April 1, 2015, the Fresno County District Attorney's Office filed a juvenile wardship petition, alleging K.F., then age 14, committed first degree burglary (§§ 459, 460, subd. (a)). On June 8, 2015, the petition was amended, upon motion of the prosecutor, to allege commission of misdemeanor trespass (§ 602, subd. (m)). K.F. then admitted the allegation.
Meanwhile, on May 29, 2015, the Fresno County District Attorney's Office filed a second juvenile wardship petition, alleging K.F. committed robbery (§ 211). K.F.'s motion to suppress evidence was denied, and, on December 9, 2015, K.F. admitted the allegation. On January 7, 2016, he was declared a ward of the court and placed under the supervision of the probation department.
FACTS
As K.F. raises no issues concerning the first petition, we dispense with a recitation of the facts underlying the offense alleged therein. The facts concerning the robbery are taken from the police reports appended to K.F.'s suppression motion and the probation officer's report.
Shortly after 9:00 p.m. on January 4, 2015, Chong Kim was working inside his store, Liquor Junction on Shaw Avenue in Fresno, when three subjects entered. Kim described two as Black males in their mid-20's, five feet six inches to five feet nine inches tall, with medium builds. One was wearing a black hooded sweatshirt, black pants, and white tennis shoes. The other was wearing a black hooded sweatshirt with white lettering, a black and gray Los Angeles Kings beanie, and black pants. Kim described the third individual as a White or Hispanic adult, five feet seven to five feet 10 inches tall, with a medium build. This individual was wearing a black hooded sweatshirt, black pants, and black and white tennis shoes.
The individuals acted suspiciously, walking around the store without making eye contact with or saying anything to Kim. They remained in the store for approximately a minute, then left without purchasing anything. A short time later, they reentered the store. The first individual was holding a large black revolver as he rapidly walked toward Kim. He pointed the gun directly at Kim and told him to walk to the cash register. Kim obeyed, and the individual took the cash from the register. The other two began taking merchandise from atop the front counter. All three attempted to hide their identities by placing their hands near their mouths and pulling their hoodies over their faces. The first subject kept the gun pointed directly at Kim the entire time. Eventually, the three knocked over some merchandise and ran out of the store. Kim immediately activated his robbery alarm and secured the store. He told police he would be able to recognize the subjects if he saw them again.
J.G.'s fingerprints were found on papers on the floor in front of the cash register. Surveillance video showed one of the robbers grabbing papers from the cash register drawer and then dropping them on the floor. He did not appear to be wearing gloves.
Fresno Police Detective Messick reviewed the police department's records concerning J.G., and learned J.G. had been arrested, along with K.F., on January 14, 2015, for a "person robbery." Both were presently in custody at juvenile hall. Messick created two photographic lineups, each containing a photograph of one of the juveniles, which he showed to Kim. Even after watching the surveillance video, Kim was unable to identify anyone.
Messick determined K.F. lived in an apartment on Polk, and that an adult named Jackie H. was "on probation to that address." On January 20, 2015, Messick and other officers responded to that location to conduct a probation search. A swimming and diving sweatshirt matching that worn by one of the robbery suspects was located in the closet of K.F.'s bedroom, on top of some other clothes.
According to the probation officer's report, Jackie H. was K.F.'s stepfather. He was on postrelease community supervision (PRCS; § 3450 et seq.) from the California Department of Corrections and Rehabilitation.
Messick contacted Jackie H. and Sherry Y., K.F.'s mother, at the residence. Sherry Y. consented to a search of the entire residence. When shown a surveillance photograph of the suspects just prior to the robbery. Sherry Y. said the person wearing the swimming and diving sweatshirt looked like her son's friend, Kelon. Sherry Y. thought Kelon also had an LA Kings beanie, although she was not sure.
That same day, Messick and Detective Pierce interviewed K.F. at juvenile hall, after advising him of his rights. Shown the surveillance photograph, K.F. said the sweatshirt was his, and he might have let his friend, Kelon White, wear it. K.F. denied being in the photograph and stated he did not remember ever going to the store that was robbed, although he said he had seen White with a gun in the past. Eventually, K.F. said the robbery was White's idea, although it was not planned. He also said the gun belonged to J.G. K.F. admitted being parked in a car down the street when the others came running back. They told him to go, and he drove them away. He asked for something from the robbery, but White would not give him anything because he did not go inside the store.
DISCUSSION
K.F. contends he received ineffective assistance of counsel when his attorney stipulated to the facts surrounding the search of the residence and seizure of the sweatshirt. K.F. also says his suppression motion should have been granted. A. Background
Through counsel, K.F. moved to suppress evidence (§ 1538.5, subd. (a)(1); Welf. & Inst. Code, § 700.1), specifically the sweatshirt and statements K.F. made to law enforcement after its seizure. The written motion anticipated an evidentiary hearing. It asserted the warrantless search was based on Jackie H.'s probationary status and his residence being subject to search without a warrant as a result, but at no time was Jackie H. under suspicion of illegal activity. The motion also represented that after the sweatshirt was seized, officers advised Sherry Y. they were going to search her garage, and they asked for her consent to search the residence to see if a gun might have been hidden there. She agreed, but no additional evidence was found.
In the motion, K.F. asserted the search was conducted without a warrant; hence, the People had the burden of establishing it fell within an exception to the warrant requirement of the Fourth Amendment to the United States Constitution. K.F. argued probationers' and parolees' residences could be searched without a warrant or probable cause, but they could not be searched without any suspicion at all. Citing United States v. Knights (2001) 534 U.S. 112 (Knights) and Griffin v. Wisconsin (1987) 483 U.S. 868 (Griffin), he asserted this was particularly true of probationers, where reasonable suspicion was required to support the search of a residence. Citing Samson v. California (2006) 547 U.S. 843 (Samson), he noted parolees were not entitled to the same rights as probationers; for them, not even a reasonable suspicion was necessary, so long as the search was not arbitrary, capricious, or harassing. K.F. argued the search could not be justified as to Jackie H. regardless of whether he was on probation or parole, since he was not suspected of having done anything illegal. K.F. also questioned how much of the apartment could be searched based on Jackie H.'s probationary status, and he argued Sherry Y.'s subsequent consent did not remedy the unconstitutional search since it was the "fruit of the poisonous tree."
The People opposed the motion. They agreed they had the burden of justifying the search and seizure by a preponderance of the evidence, but asserted the search was valid under People v. Woods (1999) 21 Cal.4th 668 (Woods) and People v. Bravo (1987) 43 Cal.3d 600 (Bravo). The People argued Jackie H. was on probation; the probation search was valid pursuant to the consent given in advance by Jackie H.; and it was reasonable for Messick and the other officers to believe Jackie H. had control over the entire apartment, including K.F.'s bedroom.
The suppression motion was heard on October 1, 2015. At the outset of the hearing, the court memorialized its off-the-record discussion with counsel, who desired to submit the matter on the pleadings, supplemented with argument. The court stated — without objection or correction — that there was a stipulation to the facts that were, in part, adopted by the prosecutor in her response.
In pertinent part, the People's opposition to the motion represented: "Detective Messick determined that [K.F.] lived at [a specified apartment on Polk] and that Jackie Jackie H. was on probation to that address. On January 20, 2015, officers conducted a probation search and located the 'Swimming and Diving' sweatshirt [seen in the surveillance video of the robbery] in [K.F.]'s bedroom closet. [K.F.]'s mother also consented to the search of the apartment."
Defense counsel then argued the police focused on K.F. because J.G.'s fingerprints were found at the scene of the robbery, and K.F. and J.G. had been arrested together about a week after that robbery. Rather than get a search warrant for K.F.'s residence, the police determined K.F.'s stepfather was on probation, and they decided to conduct a probation search during which they found the sweatshirt in K.F.'s closet.
The court asked whether K.F. was sharing the room with the person who was subject to search and seizure. Defense counsel responded no, it was K.F.'s bedroom; however, K.F.'s mother and stepfather rented the premises and arguably had authority over the whole apartment. Counsel argued there was no evidence Jackie H. had done anything illegal, and Woods, which the prosecutor used to justify the search, was overruled by Knights and Samson. The People countered that Woods remained good law, and stood for the proposition a probationer gives advance consent to search of his or her residence, regardless of the officer's subjective intent.
The court announced its ruling several days later. It stated its understanding this was a search of the residence K.F. shared with his mother, stepfather, and other family members; Jackie H., the stepfather, was on probation and subject to search and seizure of his person or place of residence; K.F. was suspected of involvement in a robbery; and law enforcement searched the apartment under the premise of Jackie H.'s search condition as part of the investigation into K.F.'s alleged involvement in the robbery. The court stated it had examined the cases cited by both counsel, and concluded Woods was still good law. The court understood the law to be that a search of a parolee or probationer subject to a valid search condition could be effectuated without reasonable suspicion that said individual had violated the law, so long as, in the case of a probationer, the search did not exceed the scope of the terms of that person's search and seizure clause, a search of his or her residence was limited to those areas over which he or she was believed to exercise complete or joint authority, and the search was not arbitrary, capricious, or harassing. The court did not find the current search to have been arbitrary, capricious, or harassing under the facts before it. The court further found the search was related to a legitimate law enforcement purpose, and that Jackie H. had access to and joint control over the areas searched. Accordingly, the court concluded the search was lawful, and it denied the motion to suppress. B. Analysis
The burden of proving ineffective assistance of counsel is on the defendant or, as in this case, the minor. (People v. Pope (1979) 23 Cal.3d 412, 425.) "To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.)
"If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 367.) In other words, "in assessing a Sixth Amendment attack on trial counsel's adequacy mounted on direct appeal, competency is presumed unless the record affirmatively excludes a rational basis for the trial attorney's choice. [Citations.]" (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260, original italics.)
The record here sheds no light on why counsel stipulated to the facts instead of insisting on an evidentiary hearing. Insofar as the record shows, counsel was not asked to provide an explanation for his decision. Nor, contrary to K.F.'s assertion, can we say there could be no satisfactory explanation. We do not know what counsel's investigation had disclosed. The asserted "fact" on which K.F. bases the bulk of his claim of reversible error — that Jackie H. was on PRCS, not probation, and that the distinction is important with respect to whether law enforcement officers could search his residence without reasonable cause — is taken from the probation officer's report. We have no way of knowing who is correct — Messick or the probation officer — or the source of the information. Thus, the predicate for much of K.F.'s contention on appeal is not truly a fact, but an assumption, and an evidentiary hearing might have been of no benefit to K.F. "Trial counsel is not required to make futile objections, advance meritless arguments or undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel. [Citation.]" (People v. Jones (1979) 96 Cal.App.3d 820, 827.)
Counsel was appointed to represent K.F. on July 10, 2015, due to K.F.'s previous multiple appointed attorneys having had conflicts of interest. Although it is not clear from the record when counsel began investigating the case, the record shows he was doing so as early as August 7, 2015, three weeks before he filed his suppression motion and not quite two months before the motion was heard.
"On direct appeal, a claim of ineffective counsel cannot be established by mere speculation . . . . We cannot assume from a silent record that particular witnesses were ready, willing and able to give [particular] testimony, nor can we speculate concerning the probable content or substance of such testimony." (People v. Medina (1995) 11 Cal.4th 694, 773.) Because the record on appeal "does not preclude a satisfactory explanation for counsel's actions, we will not, on appeal, find that trial counsel acted deficiently. [Citations.]" (People v. Stewart (2004) 33 Cal.4th 425, 459.)
K.F. contends detectives had no reasonable cause to search his residence; hence, his suppression motion should have been granted. As part of this argument, he claims denial of his motion was based upon case law that was inapplicable to the facts of this case, since Jackie H. was on PRCS and not probation. In light of the way the argument is presented, we cannot tell whether K.F. is merely attempting to demonstrate he was prejudiced by counsel's purported failings (see, e.g., Kimmelman v. Morrison (1986) 477 U.S. 365, 382; People v. Coddington (2000) 23 Cal.4th 529, 652, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13) or if he is attacking the trial court's ruling apart from the ineffectiveness issue. Since the record before us does not establish deficient performance, we need not reach the issue of prejudice or decide whether law enforcement officers must have reasonable cause in order to search the residence of someone subject to a search condition under PRCS. (Compare §§ 3453, subd. (f) & 3465 with § 3067, subds. (a) & (b)(3); see People v. Douglas (2015) 240 Cal.App.4th 855, 861-865 & fn. 7; see generally, e.g., People v. Jones (2014) 231 Cal.App.4th 1257, 1266-1267; People v. Espinoza (2014) 226 Cal.App.4th 635, 639-640 & fn. 3; People v. Smith (2009) 172 Cal.App.4th 1354, 1360.) Out of an abundance of caution, however, we will review the propriety of the trial court's ruling based on the evidence and arguments actually before it. (See People v. Williams (1999) 20 Cal.4th 119, 136; see also People v. Tully (2012) 54 Cal.4th 952, 979-980; People v. Ermi (2013) 216 Cal.App.4th 277, 282, fn. 1.)
A written motion is not evidence. (People v. Rios (2011) 193 Cal.App.4th 584, 592, fn. 4; see Evid. Code, § 140.) Here, however, the parties stipulated to certain facts.
" 'A defendant may move to suppress evidence on the ground that "[t]he search or seizure without a warrant was unreasonable." [Citation.] A warrantless search is presumed to be unreasonable, and the prosecution bears the burden of demonstrating a legal justification for the search. [Citation.] "The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." ' [Citations.]" (People v. Suff (2014) 58 Cal.4th 1013, 1053.) We view the evidence in the light most favorable to the trial court's ruling (People v. Tully, supra, 54 Cal.4th at p. 979), and we affirm a correct decision by the trial court even if based on an erroneous reason (People v. Lujano (2014) 229 Cal.App.4th 175, 182).
"A warrantless search is unreasonable under the Fourth Amendment unless it is conducted pursuant to one of the few narrowly drawn exceptions to the constitutional requirement of a warrant. [Citations.]" (People v. Schmitz (2012) 55 Cal.4th 909, 916.) A probation search is such an exception. (People v. Romeo (2015) 240 Cal.App.4th 931, 939.) "Because the terms of probation define the allowable scope of the search [citation], a searching officer must have 'advance knowledge of the search condition' before conducting a search [citations]." (Id. at pp. 939-940.) A search founded on neither reasonable suspicion of criminal activity nor advance knowledge of a probation search condition is arbitrary and, hence, constitutionally unreasonable. (In re Jaime P. (2006) 40 Cal.4th 128, 138.)
In Bravo, supra, 43 Cal.3d 600, the California Supreme Court held that a condition of probation permitting a search of the probationer's home without a warrant also permits a search of the home without reasonable cause. (Id. at pp. 607-609.) The court distinguished between probationers, who consent to a waiver of Fourth Amendment rights in exchange for the opportunity to avoid service of a prison term, and parolees, who have parole search conditions imposed upon them without their consent, and who therefore cannot lawfully be searched pursuant to that condition absent reasonable suspicion they are engaged in criminal conduct or otherwise violating parole. (Bravo, supra, at p. 608; see Samson, supra, 547 U.S. 846, 848, 850-853, 857 [under totality-of-the-circumstances approach to 4th Amend., suspicionless search of parolee subject to parole search condition is constitutional].)
In Woods, supra, 21 Cal.4th 668, Loza agreed, as a condition of felony probation, to submit her residence to warrantless searches. During such a search, law enforcement officers discovered evidence of criminal activity engaged in by the defendant and another person who shared the residence with Loza. The defendant successfully sought suppression of the evidence on the ground it was obtained as the result of a pretextual probation search. (Id. at p. 671.) The California Supreme Court "granted review to consider whether a warrantless search of a probationer's house is constitutionally invalid when it is undertaken to discover incriminating evidence against a third party residing in the house. [The court] conclude[d] that . . . the officer's subjective intent did not invalidate the challenged search since the circumstances, viewed objectively, justified the officer's actions." (Id. at pp. 671-672.)
The court observed: "It long has been settled that a consent-based search is valid when consent is given by one person with common or superior authority over the area to be searched; the consent of other interested parties is unnecessary. [Citations.] Warrantless consent searches of residences have been upheld even where the unmistakable purpose of the search was to obtain evidence against a nonconsenting coinhabitant. [Citations.]" (Woods, supra, 21 Cal.4th at pp. 675-676.) The court concluded Griffin, supra, 483 U.S. at pages 873 through 875, in which the United States Supreme Court upheld the warrantless search of a probationer's home conducted pursuant to a state regulatory scheme that satisfied the Fourth Amendment's reasonableness requirement because the state's operation of a probation system presented a " 'special need' " beyond normal law enforcement that justified departure from the usual warrant and probable cause requirements, provided "little guidance on the specific issue at hand" (Woods, supra, at p. 678). On the other hand, it found the analysis of Whren v. United States (1996) 517 U.S. 806, 811, in which the United States Supreme Court held officers' subjective motivations did not invalidate an asserted pretext search since the circumstances, viewed objectively, justified the officers' action, "logically extend[ed], at the very least, to a search where . . . the circumstances, viewed objectively, show[ed] a possible probation violation that justifie[d] a search of the probationer's house pursuant to a search condition" (Woods, supra, at pp. 678-679, fn. & italics omitted).
The state high court concluded:
"[W]hether the purpose of the search is to monitor the probationer or to serve some other law enforcement purpose, or both, the search in any case remains limited in scope to the terms articulated in the search clause [citation] and to those areas of the residence over which the probationer is believed to exercise complete or joint authority [citations]. Given such constraints, there is little to be advanced by validating a search merely upon the searching officer's ability to convincingly articulate the proper subjective motivation for his or her actions. . . . [¶] . . . [¶]
"In closing, it should be emphasized that our holding is not intended to legitimize unreasonable searches with respect to nonprobationers who share residences with probationers. In all cases, a search pursuant to a probation search clause may not exceed the scope of the particular clause relied upon. [Citation.] Nor may such a search be undertaken in a harassing or unreasonable manner. [Citations.] Moreover, officers generally may only search those portions of the residence they reasonably believe the probationer has complete or joint control over. [Citation.] That is, unless the circumstances are such as to otherwise justify a warrantless search of a room or area under the sole control of a nonprobationer (e.g., exigent circumstances), officers wishing to search such a room or area must obtain a search warrant to do so." (Woods, supra, 21 Cal.4th at pp. 681-682.)
In Woods, the officer had been told drugs were being sold at the probationer's house, and had seen the probationer's boyfriend acting suspiciously in the area of the residence. (Woods, supra, 21 Cal.4th at p. 681.) The evidence before the trial court in the present case was that Jackie H., K.F.'s stepfather who lived at the same residence as K.F., was on probation and, as a result, the residence was subject to being searched. Messick was aware of this before the search took place. The evidence also showed Jackie H. himself was not suspected of wrongdoing, but Messick had at least some reason — K.F.'s alleged involvement with J.G. in a recent robbery and the existence of J.G.'s fingerprints on items taken from the cash register in the robbery Messick was investigating — to investigate K.F.
In Knights, supra, 534 U.S. 112, a California court placed Knights on probation, on condition, inter alia, that he submit his residence to search at any time, with or without a search warrant and with or without reasonable cause. Several days later, the latest in more than 30 acts of vandalism and arson — in which Knights and his friend had long been suspected — occurred. The friend subsequently was seen exiting Knights's apartment and was determined to have a number of suspicious items in his truck. A detective with knowledge of Knights's search condition then searched Knights's residence and discovered evidence of Knights's participation in the acts of vandalism and arson. (Id. at pp. 114-115.) Knights's subsequent motion to suppress the evidence was granted on the ground that, although the detective had reasonable suspicion to believe Knights was involved, the search was conducted for investigatory, rather than probationary, purposes. (Id. at p. 116.)
The United States Supreme Court concluded the probation condition "significantly diminished" Knights's reasonable expectation of privacy. (Knights, supra, 534 U.S. at pp. 119-120.) It declined to determine whether Knights's acceptance of the search condition of his probation constituted consent in the sense of a complete waiver of his Fourth Amendment rights, however, because it found the search was reasonable under the general Fourth Amendment approach of examining the totality of the circumstances. (Knights, supra, at p. 118.) Moreover, because the search was supported by reasonable suspicion, it also declined to decide whether a suspicionless search — which was permitted by the terms of the probation condition — was constitutional. (Id. at p. 120, fn. 6.)
In People v. Medina (2007) 158 Cal.App.4th 1571 (Medina), a police officer stopped the defendant's car due to an inoperative taillight. The defendant pulled into the driveway of his house and stopped. He told the officer it was his house. A records check showed the defendant was on felony probation and was subject to search for narcotics and paraphernalia. Based solely on the search condition, the officer searched the defendant's room and found methamphetamine. (Id. at p. 1574.) Relying on Knights, the trial court granted the defendant's suppression motion, finding no facts to suggest a search was necessary or reasonable. (Medina, supra, at p. 1575.)
This court reversed. We explained: "A probationer's consent is considered 'a complete waiver of that probationer's Fourth Amendment rights, save only his right to object to harassment or searches conducted in an unreasonable manner. [Citation.]' [Citation.]. . . Accordingly, the California Supreme Court has held that a search of a probationer pursuant to a search condition may be conducted without any reasonable suspicion of criminal activity and that such a search does not violate the Fourth Amendment. [Citation.]" (Medina, supra, 158 Cal.App.4th at pp. 1576-1577, fns. omitted.)
We noted there are some limitations on probation searches. First, they cannot be undertaken for harassment, or for arbitrary or capricious reasons. (Medina, supra, 158 Cal.App.4th at p. 1577.) "A search is arbitrary and capricious when the motivation for it is unrelated to rehabilitative, reformative or legitimate law enforcement purposes, or when it is motivated by personal animosity toward the probationer. It must be reasonably related to the purposes of probation. [Citations.]" (Ibid.) We also noted a search could become unconstitutionally unreasonable if conducted too often or at an unreasonable hour; if unreasonably prolonged; or if conducted for reasons establishing arbitrary or oppressive conduct by the searching officer. (Ibid.) We also observed the officer must be aware of the search condition before conducting the search. (Ibid.) We concluded: "In summary, under California law, a search conducted pursuant to a known probation search condition, even if conducted without reasonable suspicion of criminal activity, does not violate the Fourth Amendment as long as the search is not undertaken for harassment or for arbitrary or capricious reasons or in an unreasonable manner. [Citation.]" (Ibid.)
We then turned to Knights and Samson, and observed that in neither did the United States Supreme Court address whether a suspicionless probation search violates the Fourth Amendment. (Medina, supra, 158 Cal.App.4th at pp. 1578-1580.) We concluded we were bound to follow California Supreme Court precedent absent direct authority from the United States Supreme Court, and stated: "Under this state's body of law, a suspicionless search pursuant to a probation search condition is not prohibited by the Fourth Amendment." (Id. at p. 1580.)
The United States Supreme Court still has not provided direct authority. Consequently, we find Medina dispositive of the constitutional issue. The search here was undertaken for a legitimate law enforcement purpose, to wit, the investigation of K.F. as a possible robbery suspect. It was reasonably related to the purposes of probation, at the very least because it would be undesirable for a probationer to become involved in criminal activity (for instance, as an accessory) through a close family member's involvement or to have access to a gun — which had not been found in this case — used to commit a crime. It was not undertaken at an unreasonable time or in an unreasonable manner.
K.F. argues Messick acted purely on a hunch, given that the victim's description of the suspects bore virtually no resemblance to K.F. However, the victim's description — particularly with respect to age — also did not fit J.G., who was 15 years old, yet J.G.'s fingerprints were found on items handled by one of the perpetrators during the robbery. In light of K.F.'s alleged companionship with J.G. in another robbery not long after the one at the liquor store, Messick's investigation of K.F. was a reasonable line of inquiry.
Jackie H.'s search condition authorized officers to enter and search his residence, in which K.F. also resided. "When a warrantless search is based on consent by a third party, it is the prosecution's burden in the trial court to establish the third party's apparent common authority over the area or property searched. [Citations.]" (People v. Carreon (2016) 248 Cal.App.4th 866, 876; see People v. Robles (2000) 23 Cal.4th 789, 798.) " '[A]t least two questions are presented when the state seeks to justify a warrantless search by relying upon the consent of a third party who is the occupant of the premises searched: whether the third party had authority to consent to the search, and whether the scope of the consent given included the object or container that was searched. In the resolution of these questions . . . the state may carry its burden by demonstrating that it was objectively reasonable for the searching officer to believe that the person giving consent had authority to do so, and to believe that the scope of the consent given encompassed the item searched.' [Citation.]" (People v. Carreon, supra, at p. 877.) "What is, or reasonably appears to be, within a probationer's common authority will depend on the specific factual setting of each search. Searching officers are entitled to rely on appearances. In searching a probationer's residence, officers are not required either to inquire about the ownership of or access rights to each item on the premises or to believe the probationer's statements on this topic. [Citations.]" (Id. at pp. 877-878.)
Generally speaking, officers reasonably may conclude a parent can validly consent to the search of a minor child's bedroom. (In re D.C. (2010) 188 Cal.App.4th 978, 985; cf. People v. Daniels (1971) 16 Cal.App.3d 36, 42-43.) We see no reason the same should not be true of a stepparent who resides in the same household and who, from all appearances, acts as a de facto parent. Moreover, even if Messick and the other officers involved in the present case were unaware Jackie H. was K.F.'s stepfather, they were aware he resided in the household and his residence was subject to search, and, insofar as the evidence shows, nothing suggested Jackie H. did not have authority over the entire residence. The sweatshirt was on top of other clothes in the closet in K.F.'s room. There was no evidence it was in a closed container, or even that the bedroom or closet door was shut. Under the circumstances, officers reasonably could conclude Jackie H. had access rights to the location in which the sweatshirt was found. (Compare In re Joe R. (1980) 27 Cal.3d 496, 510-511 with In re Scott K. (1979) 24 Cal.3d 395, 404-405.)
DISPOSITION
The judgment is affirmed.