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Filed 6/14/22 P. v. Peters CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

 Plaintiff and Respondent,

v.

CURTIS JAMES PETERS,

 Defendant and Appellant.

 A162354

 (San Mateo County

 Super. Ct. No.

 20NF008972A)

Appellant Curtis James Peters pled no contest to a charge 

of second-degree robbery after the trial court denied his motion to 

suppress evidence that the victim's recently stolen cell phone was 

found inside his home. (Pen. Code, §§ 211, 212.5, subd. (c); 

1538.5.) Appellant contends that the phone should have been 

suppressed because it was discovered by third parties who were 

acting as agents for the police, and the police did not have valid 

consent or a warrant to search. We disagree.

I. BACKGROUND1

Ervin Lopez was walking from a market towards his home 

at about noon on July 31, 2020. Appellant came out of a house 

1 The facts are taken primarily from the hearing on 

appellant's motion to suppress.
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and asked Lopez for his cell phone and wallet. Lopez refused,

and the two men struggled until appellant reached into Lopez's 

pocket and took his phone. Appellant fled to the same house from 

which he had emerged, dropping his wallet on the way. Lopez 

retrieved the wallet and attempted to catch up to appellant but 

was unable to do so. 

Lopez stayed in the area for about five hours, unable to call 

anyone because his cell phone had been taken. Eventually, a 

passer-by allowed Lopez to use his phone to call the police. Lopez 

went to a nearby community center where he met San Mateo 

Police Officer Ramirez, who took a description of the robbery 

suspect and inspected the wallet that the suspect had dropped. It 

contained an identification card for Curtis James Peters 

(appellant) bearing an address on North Claremont Street that 

was a few houses away from where the robbery was committed. 

Appellant matched the description of the suspect (age, 

gender, clothing, race and facial hair), and Officer Ramirez was 

advised that appellant had been detained near the North 

Claremont Street address. Officer Ramirez broadcast that Lopez 

had provided him a wallet with appellant's identification inside, 

and then drove Lopez to do an in-field show-up of appellant. At 

the show-up, Lopez said he was 100 percent certain that 

appellant was the man who had robbed him and taken his phone. 

Officer Ramirez asked appellant to give him consent to search the 

address given on his identification card and appellant refused. 

Meanwhile, Officer Hussein and his field training officer

had responded to North Claremont Street and saw appellant
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seated on the ground in handcuffs near some other officers. They 

were present when Lopez identified appellant in the in-field 

show-up. After Lopez made the identification, Officer Hussein 

searched appellant incident to arrest and found 

methamphetamine and a glass smoking pipe. 

Officers spoke with individuals standing outside appellant's 

home, including appellant's mother and two men identified as 

Harold and Solomon Ross. The officers explained that the police 

would be seeking a warrant to search the entire house for Lopez's 

cell phone, which could take five to six hours. Harold Ross went 

inside the home and retrieved a cell phone that he said he did not 

recognize and had found on the couch, which he handed to 

Solomon Ross who then handed it to Officer Hussein. The 

officers had not gone inside the house at that point and had not 

directed either Harold or Solomon Ross to retrieve the phone. 

Police determined that the cell phone retrieved from the house 

was the phone that had been stolen from Lopez when Officer 

Ramirez dialed the number that Lopez had given him, and the 

phone retrieved from the house rang in response.

Appellant was charged by information with second degree 

robbery, assault by means likely to cause great bodily injury, 

possession of a controlled substance and possession of drug 

paraphernalia. (Pen. Code, §§ 211, 212.5, subd. (c), 245, subd. 

(a)(4); Health & Saf. Code, §§ 11377, subd. (a), 11364.) He filed a 

motion to suppress evidence, contending that there had been an 

illegal search of both his person and the residence. 
4

At the hearing on the motion to suppress, defense counsel 

argued that Harold Ross’s retrieval of the phone from the house 

was not voluntary because the officers had told the Rosses that 

they would be seeking a warrant to look for a phone and that the 

occupants would be prohibited from entering the house for 

several hours. The court denied the motion. It noted that there 

had been no threatening conduct on the part of the officers, that 

Harold Ross had “freely and voluntarily” decided to walk back 

into the house and get the phone, and that no one had been 

coerced into giving the phone to the officers. The court also ruled 

that the officers had reasonable suspicion to detain appellant 

because he matched the description of the robber, which evolved 

into probable cause to arrest once the victim had identified 

appellant as the robber, and that the search of appellant’s person 

was incident to a lawful arrest.

2 

Appellant pled no contest to second degree robbery in 

exchange for a three-year probation period conditioned on a year 

in local custody.3

2 The legality of the search of appellant’s person incident to 

arrest is not challenged on appeal.

3 We requested supplemental briefing on whether recent 

amendments to section 1203.1, subdivision (a), which reduces the 

permissible probationary term to two years in most cases, applies 

retroactively to appellant’s case. The two-year limitation does 

not extend to “[a]n offense listed in subdivision (c) of Section 

667.5 and an offense that includes specific probation lengths 

within its provisions.” (§ 1203.1, subd. (l); see People v. Schulz

(2021) 66 Cal.App.5th 887, 896–898.) Appellant was convicted of 

robbery, an offense listed in section 667.5, subdivision (c). For 

section 1203.1, subdivision (l) to apply, a defendant only needs to 
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II. STANDARD OF REVIEW

“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 . . . we exercise our 

independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 

362.) In cases where the facts are essentially undisputed, we 

independently determine the constitutionality of the challenged 

search or seizure. (People v. Balint (2006) 138 Cal.App.4th 200, 

205.) The trial court’s ruling may be affirmed if it was correct on 

any theory, even if we conclude the court was incorrect in its 

reasoning. (People v. McDonald (2006) 137 Cal.App.4th 521, 

529.)

III. DISCUSSION

The victim’s stolen cell phone was discovered by Harold 

Ross on the couch in appellant’s home and it was turned over to 

the police. Appellant argues that the trial court should have 

suppressed the phone’s discovery because appellant had refused 

to give consent to search the home and Ross’s consent was 

coerced by police threats to get a warrant and exclude the home’s 

occupants from going inside for several hours. He also 

have committed an offense listed in subdivision (c) of section 

667.5, or an offense that includes a specific probation length, not 

both. (Schultz, at p. 898.) The parties agree that appellant is not 

eligible to have his probationary term reduced to two years.
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suggests—apart from arguing the involuntary nature of the 

consent—that Ross lacked the authority over the premises to 

consent to the search. We disagree.4

“The Fourth Amendment protects an individual's 

reasonable expectation of privacy against unreasonable intrusion 

on the part of the government.” (People v. Jenkins (2000) 22 

Cal.4th 900, 971.) A search without a warrant is presumed to be 

illegal, and the People have the burden of justifying the search by 

proving that it fell within an exception to the warrant 

requirement. (People v. James (1977) 19 Cal.3d 99, 106.) One 

exception is voluntary consent to search. (Ibid.)

Consent to search may be given by either the defendant or

a third party who possesses a common authority over or another 

sufficient relationship with the premises or effects to be searched. 

(United States v. Matlock (1974) 415 U.S. 164, 171.) A third

party’s consent is only valid if the person had actual authority to 

consent or if the police reasonably and in good faith believed 

there was actual authority. (People v. Jacobs (1987) 43 Cal.3d 

472, 481.)

Although appellant has framed his argument in terms of

the invalidity of a third party’s consent, this is not a case where a 

third party consented to a search by police, and the issue is 

whether that consent should be given effect. (E.g., People v. Poole

(1986) 182 Cal.App.3d 1004, 1011–1012.) There was no search of 

4 We assume without deciding that appellant’s arguments 

below were sufficient to preserve all issues relating to consent on 

appeal.
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the home by police for which consent could be given. Rather, 

Harold Ross conducted the search leading to the discovery of the 

phone when he entered the home, located the phone and then 

turned it over to Solomon Ross, who turned it over to an officer

outside the home. 

The Fourth Amendment’s prohibition against unreasonable 

searches and seizures does not apply to searches by private 

citizens unless they are acting as agents for the government. 

(People v. Wilkinson (2008) 163 Cal.App.4th 1554, 1564

(Wilkinson).) This is so even if a private citizen acts unlawfully. 

(Ibid.) Thus, there was no Fourth Amendment violation unless 

Harold Ross was acting as a police agent.5

The trial court did not squarely address the question of 

agency, which is ordinarily a factual issue to be decided by the 

trial court in the first instance. (Wilkinson, supra, 163 

Cal.App.4th at p. 1564.) But it determined that Ross acted 

“freely and voluntarily” and was not coerced into action by the 

police. The facts are undisputed regarding what the officers said 

5 Appellant does not cite Wilkinson or other cases dealing 

with private searches per se, but he argues that the “consent” 

given by Harold Ross was invalid “because police relied on a third 

party as an agent empowered to search for evidence sought by

the police.” The Attorney General responds that the house had 

not yet been “frozen” at the time of the search, and that Harold 

Ross went into the house “freely and voluntarily and not under 

police compulsion.” The issue of agency in connection with a 

private search has thus been “proposed” and “briefed” by the 

parties to this proceeding and supplemental briefing on this point 

is not necessary. (See Govt. Code, § 68081; People v. Watkins

(1994) 26 Cal.App.4th 19, 30, fn. 7.)
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to the occupants prior to Harold Ross’s entry into the home. 

Portions of the body camera footage demonstrating what the 

officers said about their intent to secure a warrant were played

and there is no suggestion that either party lacked access to the 

complete footage. There does not appear to be any additional 

evidence that could have been introduced on this point. (See

People v. Johnson (2018) 21 Cal.App.5th 1026, 1032, 1038

[affirmance of denial of suppression motion on a different theory 

than the trial court relied upon when the record fully established 

another basis for affirmance and there does not appear to be any 

further evidence that could have been introduced to defeat the 

theory].) 

As to whether there was agency, the decision in Wilkinson 

is instructive. There, the boyfriend of the defendant's roommate 

told the police he suspected the defendant of secretly recording 

him and the roommate. (Wilkinson, supra, 163 Cal.App.4th at 

p. 1559.) After the defendant refused to allow the police to search 

his room, the boyfriend became frustrated that the police did not 

do more and asked an officer if he could search the defendant's 

room himself. (Ibid.) The officer replied that the boyfriend could 

look anywhere in the apartment because he lived there, but he 

could not act as an agent of the police. (Id. at pp. 1559–1560.) 

The boyfriend entered the defendant's room and found compact 

disks of images the defendant had taken surreptitiously of him 

and the roommate. (Id. at p. 1560.) The court concluded “there 

was insufficient government participation” in the boyfriend's 

search of the defendant's room to implicate the Fourth 
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Amendment, reasoning that “the police did not affirmatively 

encourage, instigate, or initiate” the search of the room, the 

seizure of the disks, or the viewing of the disks. (Id. at

pp. 1568–1569.)

In the present case, there is even less evidence of 

government agency than in Wilkinson, where the private actor 

specifically asked the police if he could conduct the search 

himself, and the officer knew about the search before it occurred. 

Here, the officers simply told the Rosses they would be obtaining 

a warrant, after which Harold Ross went into the house to 

retrieve the phone without asking for prior police permission to 

search. Even if we assume the police might have thought it was 

likely that Ross’s purpose for entering the home was to obtain the 

phone, “ ‘mere knowledge and passive acquiescence’ ” on the part 

of the police do not suffice to establish the private citizen was 

acting as a government agent. (Wilkinson, supra, 163 

Cal.App.4th at p. 1566.)

IV. DISPOSITION

The judgment is affirmed.
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WISEMAN, .J. *

We concur.

JACKSON, P.J.

SIMONS, J.

People v. Peters / A162354

* Retired Associate Justice of the Court of Appeal, Fifth 

Appellate District, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.