Filed 9/25/13 P. v. Solorzano CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E056822

v.                                                                       (Super.Ct.No. RIF1102047)

ALBERTO SOLORZANO,                                                       OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge.

Affirmed.

         Jeanine Grimmond Strong, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Michael T. Murphy and Donald

W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant and appellant Alberto Solorzano was convicted by jury trial of

possession of methamphetamine and possession of drug paraphernalia. (Health & Saf.

Code, §§ 11377, subd. (a), 11364.1.) His appeal challenges the denial of his motion to

suppress evidence. (Pen. Code, § 1538.5.) We affirm.

                                  STATEMENT OF FACTS

       We may in general confine ourselves to the circumstances surrounding the seizure

in question. It was stipulated that there was no warrant for the entry of the home or any

search.

       Officer Scott Anderson was responding to a report of a subject who was

combative and argumentative with family members. He observed defendant in the front

yard area of a residence. As defendant appeared agitated, the officer detained him in the

back of his police vehicle while he investigated the matter.1

       Officer Anderson approached the front of the residence and made contact with a

man who identified himself as Mario Solorzano, defendant’s father. The father told the

officer that his son, defendant, was currently living in his front living room and consented

to the officer entering the residence so he could look around. The officer testified that

“[t]he front door opens up into the main living room of the residence. There’s a couch, a

computer desk, a table, all in the front room.” Defendant’s father informed the officer




       1 This   detention is not the subject of the appeal.



                                                2
that his son was “staying and sleeping” in the room. The officer saw a hypodermic

syringe in a small plastic baggie on top of a cabinet by the couch.2

       On cross-examination, the deputy testified that there was also clothing or dirty

laundry in the area, as well as a computer table which defendant’s father indicated

belonged to defendant. Defendant’s father told him that no one else had “been in the

living room.”3

       The trial court denied the motion to suppress. Defendant’s position on this appeal

is that his father's consent was ineffective because the living room was his personal living

space. We disagree and affirm the judgment.

                                          DISCUSSION

       In reviewing issues relating to the seizure and suppression of evidence under the

Fourth Amendment, we apply federal constitutional standards. (People v. Troyer (2011)

51 Cal.4th 599, 605.) Our review of the trial court’s legal conclusions is de novo.

(People v. Walker (2012) 210 Cal.App.4th 1372, 1380.)

       Although the warrantless entry into a private home is presumptively unreasonable

(see People v. Hawkins (2012) 211 Cal.App.4th 194, 199), a well-established exception


       2
       The syringe was the subject of the “drug paraphernalia” charge. Evidence at trial
showed that the baggie also contained a white powder, which proved to be
methamphetamine.

       3 The first formulation of the question by defense counsel was whether
defendant’s father told the officer that defendant “had exclusive control of that particular
area; correct?” The officer attempted to clarify: “Exclusive? Meaning like he had full
control over that and nobody else did?” Defense counsel then asked “That he was the
only one living there; correct?” The officer replied “Correct.”


                                             3
to this principle arises when consent to enter is given by one authorized to give it. (Ibid.;

Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219.) As defendant acknowledges, law

enforcement personnel may also rely on consent given by one who is reasonably believed

to have such authority. (Illinois v. Rodriguez (1990) 497 U.S. 177, 186 (Illinois).) The

seizure of contraband or incriminating evidence in plain view following a consensual

entry is, of course, permitted. (People v. Superior Court (Chapman) (2012) 204

Cal.App.4th 1004, 1012-1013.)

       In arguing that his father did not have authority to consent to the officer’s entry

into the living room, defendant analogizes his occupancy of the room to that of a tenant

in a boardinghouse or occupant of a motel room. (See, e.g., Chapman v. United States

(1961) 365 U.S. 610, 616-618; Stoner v. California (1964) 376 U.S. 483, 488-489; see

also People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1200-1201.) We

find the analogy inapt because the evidence does not support the necessary predicate of

exclusive control.

       It has been held repeatedly that even an adult child’s bedroom in the parental

home is subject to the joint control of the parent, whose consent to enter or search is

sufficient, unless there is clear evidence that the child has exclusive control over the

room. (See People v. Oldham (2000) 81 Cal.App.4th 1, 10.) A fortiori, where the child

simply dosses down on the couch in what is typically a common living area accessible to

all residents, exclusive control is not established by the mere presence of possessions in

the room.




                                              4
       Although the officer testified that defendant’s father told him that defendant was

the only one “living” in the living room, he did not testify that he was told that defendant

had “exclusive control” over the room in the sense that he had the power to forbid others

to enter.4 In the absence of any such evidence, we decline to assume such control.

Obviously defendant’s father felt perfectly entitled to enter the room in order to open the

front door, and to allow the officer to enter. It would be an unusual case indeed in which

a person could persuasively claim exclusive control over a room into which arriving

visitors would normally be welcomed, and which the homeowner would be required to

traverse in order to respond to knocks or a ringing doorbell.5

       Furthermore, if it were necessary to reach the point, nothing in the circumstances

known to the officer when defendant’s father consented to his entry suggested that the

latter did not have authority to so consent. (See Illinois, supra, 497 U.S. 177, 186.)

       Accordingly, the motion to suppress was properly granted and the judgment is

affirmed.




       4Defendant’s repeated assertions that defendant’s father told the officer that
defendant had “exclusive control” are simply erroneous. As our quotation of the actual
testimony above reflects, the officer’s response of “[c]orrect” was to a different question.

       5 We do not say that there could never be a reasonable expectation of privacy in
such a room; for example, if the front door bore a sign “Use back door,” and there was
evidence that passageways leading from the living room were closed or barricaded, one
could assume that the occupant was asserting a right to exclusive control and concomitant
privacy. That, of course, is not this case.


                                             5
                                   DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                 HOLLENHORST
                                                           Acting P. J.
We concur:



KING
                         J.



CODRINGTON
                         J.




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