1 Filed 12/9/14 P. v. McCullough CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento)

----

THE PEOPLE, Plaintiff and Respondent,

v. ANTOINE JON MCCULLOUGH, Defendant and Appellant. C074675 (Super. Ct. No. 13F02802)

Defendant Antoine Jon Mc Cullough appeals the judgment of the trial court contending its denial of his motion to su ppress evidence pursuant to Penal Code section 1538.5 was erroneous. The Attorney General agre es the court erred in denying defendant’s motion. Notwithstanding both par ties’ agreement, we conclude the trial court did not err and affirm the judgment. FACTUAL AND PROCEDUR AL BACKGROUND Defendant was charged with possession of a controlled substance, namely methamphetamine (Health & Saf. Code, § 1137 8--count one); unlawful transportation of2 a controlled substance (Health & Saf. Code, § 11379, subd. (a)--count two) 1 ; unlawful possession of a firearm by a felon (Pen. C ode, § 29800, subd. (a)(1)--count three); unlawfully carrying of a con cealed firearm (Pen. Code, § 25400, subd. (a)(1)--count four); and unlawful possession of methampheta mine while armed with a loaded firearm (Health & Saf. Code, § 113 70.1, subd. (a)--count fi ve). The firearm and methamphetamine that are the basis of these charges were both recovered during a search of a car driven by defendant following a traffic stop. Defendant moved to suppress all evidence obtained during th e warrantless search of the car (including the contraband and de fendant’s subsequent statements), contending the traffic stop and ensuing search were not reasonable because the officer made a mistake of law when he believed the car’s windows were illegally tinted. The People opposed defendant’s motion arguing, (1) th e officer had reasonable suspicion of a Vehicle Code violation to justify the tra ffic stop and (2) the probation status of defendant’s passengers authorized the search of the center c onsole, which was within the passengers’ reach, where the contraband was found. Testimony at Suppression Hearing At approximately 11:24 p. m. on May 2, 2013, Deputy Sheriff Carlos Cabrera noticed a white Buick Century wi th tinted rear side and rear windows that defendant was driving. Deputy Cabrera was unable to see th rough the tinted windows -- even to see the silhouettes of the rear passengers -- despite sh ining a spotlight on the car. Based on his understanding the tinted windows were out of compliance with the Vehicle Code, Deputy Cabrera performed a traffic stop. Defendant testified he could see through the rear

1 Although Health and Safety Code secti on 11379 was amended effective January 1, 2014, to provide that “transports” means to transport for sale, the amendment has no effect on this appeal. (Stats. 2013, ch. 504, § 2.) As discussed later, this count was dismissed in the plea agreement.3 windows while driving, the front windows of the car are not tinted, and he could see both the driver and passenger side mirrors. There were three passengers in the car: a male passenger sat in the front passenger seat and two female passengers sat in the rear seat. Deputy Cabrera testified that two of the passengers were on searchable probation. Specifically, Deputy Cabrera testified, “[the records check] re vealed that two of the occupa nts were on probation and one of them had a warrant for her arrest” and that it was “searchable probation.” Deputy Cabrera also testified that “[o]ne of the re ar passengers [was] on searchable probation.” After determining the passengers’ probati on status, Deputy Cabrera requested the assistance of additional officers to cond uct a probation search of the car. Deputies Cabrera and Gray searched th e car and found a lo aded handgun, three bags containing pills that tested positive fo r methamphetamine/Ecstasy, and a scale in a secret compartment “hidden un derneath the center console by the [emergency] brake.” To access the secret compartmen t, Deputy Gray reached fro m the front passenger seat into the center console and pu lled away the false floor with in the console. Deputy Cabrera testified the center console was w ithin reasonable reach of the front seat passenger and within reach of at least one of the rear passengers on searchable probation. Trial Court’s Findings The trial court found the traffic stop wa s not justified by a reasonable suspicion, and the good faith exception to the exclusionary rule did not apply because the officer made a mistake of law in believing the wi ndows of the car were illegally tinted. However, the court relied on People v. Brendlin (2008) 45 Ca l.4th 262 ( Brendlin ), weighed the factors set forth in Brown v. Illinois (1975) 422 U.S. 5 90 [45 L.Ed.2d 416] ( Brown ), and found the information obtained subseque nt to the traffic stop, i.e., the arrest warrant and the probation status of the passenge rs, supported a search of the vehicle. The court further found it was not a pretextual st op and there was no flagrant conduct by the officer who erroneously, but in good faith, believed there had been a violation of the4 Vehicle Code. Thus, the court denied de fendant’s motion to s uppress the evidence obtained in the search of the car. Proceedings after Motion to Suppress was Denied After his motion to suppress evidence wa s denied, defendant withdrew his plea of not guilty and pled no contes t to count five (unlawful possession of methamphetamine while armed with a loaded fir earm) in exchange for a stipul ated sentence to serve four years in state prison and dismissal of all othe r charges. The court dismissed all remaining charges, sentenced defendant to serve the upp er term of four years in prison for a violation of Health and Safety Code se ction 11370.1, subdivision (a), awarded presentence credits, and imposed various fines and fees. DISCUSSION Defendant contends the trial court erred in denying his motion to suppress evidence because the taint of the illegal traffic stop was not attenuated by the fact two passengers in the car were on probation becaus e the ensuing search ex ceeded the scope of a lawful probation search. The Attorney General agrees the court erred in denying defendant’s motion because there was insuffi cient evidence to es tablish the secret compartment, where the cont raband was found, was reacha ble by a passenger who was on probation. We disagree with both conten tions. Based on the record, we conclude the taint of the illegal traffic stop was attenuated by the probation search of the car and it was reasonable for the deputies to se arch the secret compartment within the center console as part of the probation search. Standard of Review In reviewing the trial court’s denial of a motion to suppress evidence pursuant to Penal Code section 1538.5, we consider the reco rd in the light most favorable to the trial court’s disposition and defer to the trial c ourt’s factual findings, whether explicit or implicit, if supported by substantial evidence. ( People v. Tully (2012) 54 Cal.4th 952, 979; People v. Weaver (2001) 26 Cal.4th 876, 924.) An y conflicts in the evidence are5 resolved in favor of th e trial court’s order. ( People v. Limon (1993) 17 Cal.App.4th 524, 529.) Additionally, “ ‘ “[when] two or more inferences can reasonably be deduced from the facts,” either deduction will be supporte d by substantial evidence, and “a reviewing court is without power to substitute its de ductions for those of the trial court.” [Citation.]’ [Citation.]” ( In re J. (1979) 25 Cal.3d 522, 527.) We exercise our independent judgment to determine whether, on th e facts found, the search or seizure was reasonable under the Four th Amendment of the federal Constitution. ( Tully , at p. 979.) We affirm the trial court’s ruling if it is corre ct on any theory of app licable law, even if for reasons different than thos e given by the trial court. ( People v. Evans (2011) 200 Cal.App.4th 735, 742; People v. Hua (2008) 158 Cal.App.4th 1027, 1033.) Illegality of Traffic Stop We agree with both parties that the trial court correctly concluded Deputy Cabrera lacked reasonable suspicion to justify the tra ffic stop, and the good faith exception to the exclusionary rule does not apply because th e officer’s mistake was one of law and was not objectively reasonable. ( People v. Lopez (1987) 197 Cal.App.3d 93, 101; accord People v. Ramirez (2006) 140 Cal.App.4th 849, 854; see also People v. Teresinksi (1982) 30 Cal.3d 822, 831.) The tinte d rear window and rear side windows on the car were not violations of the Vehicle Code because th e car bore operational side mirrors. (Veh. Code, §§ 26708, subds. (b)(4), (b )(8), 26708.5, subd. (a).) Th erefore, it was appropriate for the court to conclude the traffic stop was illegal. 2

2 Although neither tria l counsel asked the officer about the functionality of the side mirrors, the traffic stop could have been justif ied by the rear window tinting and the need to further investigate the side mirrors. If th e officer could not determine whether the side mirrors were situated “to reflect to the driv er a view of the highw ay through each mirror for a distance of at least 200 feet to the rear of the vehicle” (§ 26708, subd. (b)(8)), then the tinted rear window could have provided a reasonable suspicion of a Vehicle Code violation such that a stop is justified to in vestigate the functionality of the side mirrors and the visibility provide d by those mirrors to the rear of the car. Unfortunately, this information is not in the record.6 Intervening Circumstances Warranted Probation Search In determining whether the taint of an illegal traffic stop has been sufficiently attenuated by an intervening circumstance to render the evidence seized in the stop admissible, the court should cons ider the factors set forth in Brown, supra , 422 U.S. 590 [45 L.Ed.2d 416]. ( Brendlin, supra , 45 Cal.4th at pp. 268-269 .) These factors include (1) the “temporal proximity of the Fourth Am endment violation to the procurement of the challenged evidence,” (2) “the presence of intervening circumstances,” and (3) “the purpose and flagrancy of the official misconduct.” ( Brown , at pp. 603-604; Brendlin , at p. 269.) With respect to the first factor, the closeness of time between the stop and the search generally operates in favor of excl usion, but is not a dispositive factor. ( Brendlin , supra , 45 Cal.4th at p. 270.) Indeed, where the intervening circumstance is not a volitional act by the defendant, the first fact or is outweighed by the other two. ( Ibid. ) Here, the intervening circumstance is th e discovery of the passengers’ searchable probation status. 3 These are the prototypical non- volitional acts contemplated in Brendlin , and the temporal proximity of the s earch is outweighed by the intervening circumstances and relative blamelessness of th e officer’s error in conducting the stop as described below. With respect to the second factor, as noted above, the intervening circumstance in this case is the discovery by the officer of two passengers on searchable probation. That a person is on probation and subject to a se arch condition provides ample authority to search the person and any area under hi s or her “common authority.” (See People v.

3 The officer also may have been justifie d in searching portions of the passenger compartment based on the rear passenger’s outstanding arrest warrant (see People v. Schmitz (2012) 55 Cal.4th 909, 927, fn. 19 ( Schmitz ) [vehicle search incident to arrest may only be justified where concerns of o fficer safety or evid ence destruction are implicated]), but as this case turns on whether the front passenger had access to the contraband, we exclusively consid er his probation status as a ju stification for the search.7 Durant (2012) 205 Cal.App.4th 57, 66 ( Durant ); People v. Smith (2002) 95 Cal.App.4th 912, 916.) “Probationers in California ty pically consent in advance to warrantless searches as a condition of pr obation, in exchange for the opportunity to avoid a prison sentence. [Citation.] Such co nsent operates as a ‘ “complet e waiver of that probationer’s Fourth Amendment rights, save on ly his [or her] right to obje ct to harassment or searches conducted in an unreasonable ma nner.” ’ [Citation.]” ( Durant , supra , 205 Cal.App.4th at p. 64.) Thus, the officer clearly acted w ithin his authority in searching the passenger compartment of the car, at leas t to the extent the searched area was under the passengers’ “common authority.” Finally, with respect to the third facto r, “a mere ‘mistake’ w ith respect to the enforcement of our traffic laws does not establis h that the traffic stop was pretextual or in bad faith.” ( Brendlin , supra , 45 Cal.4th at p. 271.) Here, while the officer believed the vehicle’s windows were illegally tinted, his error was a result of not knowing the rear windows could all be darkly tinted so long as the vehicle had functional rear and side view mirrors. We conclude the officer’s mistake does not mean the traffic stop was clearly pretextual or made in bad faith. Thus, on the facts before us, we conclude the probation status of the passengers in the car adequately attenuated the taint of th e illegal traffic stop so that the evidence obtained in the search was not inadmissibl e as “fruit of the poisonous tree.” ( Durant , supra , 205 Cal.App.4th at pp. 64-65, citing Wong Sun v. United States (1963) 371 U.S. 471, 488 [9 L.Ed.2d 441].) The Search Did Not Exceed the Permissible Scope of a Probation Search An officer who discovers a passenger in a car is on probation with a search condition may search the interior of the car. ( Schmitz , supra , 55 Cal.4th at pp. 926-927; see also People v. Baker (2008) 164 Cal.App.4th 1152, 1159 ( Baker ) [treating search of passenger compartment based on passenger’s prob ation or parole sear ch status equally]; People v. Woods (1999) 21 Cal.4th 668, 682 [officers can search areas they “reasonably8 believe the probationer has complete or jo int control over”].) However, the officer is restricted to “those areas of the passenge r compartment where th e officer reasonably expects that the [passenger] could have stow ed personal belongings or discarded items when aware of police activity.” ( Id. at p. 926.) 1. Whether Front Passenger wa s on Searchable Probation The Attorney General focu ses on the trial court’s implicit deduction that the front passenger was on probation, and contends there is insufficien t evidence to support that conclusion. We disagree. Although there was no express tes timony that the front passenger was on probation, it was reasonable for the trial court to deduce he was based on Deputy Cabrera’s testimony. Deputy Cabrera tes tified one of the rear passengers was on probation, one of the rear passengers ha d an outstanding arrest warrant, and two passengers in the car were on searchable proba tion. The court indicated its understanding that the front seat passenger was on probatio n when it sought to clarify that the front passenger could reach into the console and th e secret compartment. The prosecutor informed the court that “Deput y Gray was on the passenger side searching. . . . It was Deputy Gray that reached in from the passenger side and took out those pills, that gun and that scale, which leads us to believe l ogically that a passenger sitting in a passenger seat based on where Deputy Gray was when he searched the console easily had accessibility to those items.” Based on this record, it is reasonable to conclude, as the trial court implicitly did, that one rear passenger was a probationer, the other rear passenger had an outstanding arrest warrant, and the front pa ssenger was the second probationer. 2. Whether it was Reasonable to Se arch the Secret Compartment We must determine whether it was reasonable for the deputy to search the secret compartment. Schmitz expressly left undecided whethe r a search based on a passenger’s status as a searchable probationer or parolee extends to “closed comp artments of the car9 like the glove box, center console, or trunk . . . .” ( Schmitz, supra , 55 Cal.4th at p. 926, fn. 16.) However, Schmitz instructs that “[t]he reasonabl eness of such a search must necessarily take into account all the attendant circumstances, including the driver’s legitimate expectation of pr ivacy in those closed co mpartments, the passenger’s proximity to them, and whether they we re locked or otherwise secured.” ( Ibid. ) Based on these factors, we conclude the instant search was reasonable. The evidence adduced at the hearing on th e motion to suppress was that the center console was within reasonable reaching di stance of the front passenger and the rear passenger on searchable probation. Deputy Cabrera testified it did not take much to remove the floor of the center console to reveal the secret co mpartment with the contraband. He explained that “[i]t just ca me right off.” Based on this testimony, the trial court could implicitly find that both the front passenger and rear passenger on searchable probation could have reached into that s ecret compartment. (See Schmitz , supra , 55 Cal.4th at pp. 931-932 [finding it reasonable to search shoes and a chip bag on the rear seat of the car where a parolee, whose search condition au thorized the search, was seated in front passenger seat because the parolee coul d reach the rear seat].) As to the driver’s expectation of privacy, there is no evidence the driver of the car controlled access to the center console or its secret compartment such that it could not reasonably be expected a passenger would place items within th e compartment. Additionally, the center console of a car is not “an inherently private repository for personal items” rendering the sear ch unreasonable. (Compare Cardwell v. Lewis (1974) 417 U.S. 583, 590 [41 L.Ed.2d 325, 335] [“One has a lesser expectation of privacy in a motor vehicle because its function is tran sportation and it seldom serves as one’s residence or as the repository of personal effects”] with Baker, supra, 164 Cal.App.4th at p. 1159 [“a purse has been recognized as an inherently private repository for personal items”].) Indeed, “like the auto mobile itself, property transp orted inside the automobile is subject to a reduced e xpectation of privacy.” ( Schmitz , supra , 55 Cal.4th at p. 930.)10 Accordingly, we conclude the deputy’s search of the center console and secret compartment as being within reaching distance of a prob ationer who was on searchable probation was reasonable. DISPOSITION The judgment is affirmed.

HOCH , J.

We concur:

HULL , Acting P. J.

MURRAY , J.