Filed 6/30/16
                          CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SIXTH APPELLATE DISTRICT


THE PEOPLE,                                       H040632
                                                 (Monterey County
        Plaintiff and Respondent,                 Super. Ct. No. SS131878A)

           v.

LESLIE STEPHENY CARREON,

        Defendant and Appellant.


                                    I. INTRODUCTION
        Defendant Leslie Stepheny Carreon and her young son were staying in a converted
garage unit of a residence leased by probationer Naomi Anderson. Law enforcement
officers arrived to conduct a probation search of the residence. The garage unit was
accessible from inside the house through a laundry room and a closed but unlocked door.
While the officers conducted a protective sweep, they had defendant remove her young
son from a bed in the converted garage unit and then had the occupants, including the
probationer, wait in the kitchen while officers searched the house. The probation officer
who entered the garage unit to search it believed it was defendant’s room and not the
residence of the female probationer he had come to search. In that room he found a
pay/owe sheet in a drawer and a plastic bag containing what appeared to be shards of
methamphetamine inside a purse. The crystalline powder tested presumptively positive
for methamphetamine. Defendant was charged with possession of methamphetamine for
sale (Health & Saf. Code, § 11378) while released on bail (Pen. Code, § 12022.1).1 She
was on bail and awaiting sentencing in two earlier cases in which she was convicted by
no contest pleas of two commercial burglaries, one a felony.
       After defendant’s suppression motion was denied, she entered a no contest plea to
possessing methamphetamine for sale while released on bail. In all three cases, the court
suspended imposition of sentence and placed defendant on formal probation for three
years with a number of conditions, including prohibiting defendant’s possession of tools
used for the express purpose of facilitating a burglary or theft.
       On appeal defendant seeks further review of her suppression motion and
challenges one probation condition. The Attorney General, while seeking to justify the
search, has no objections to modifying either the burglary tool probation condition or an
order requiring defendant to register as an offender. We will conclude that a probation
search condition of the residence of a female probationer, without more, did not authorize
law enforcement officers to look into a purse or drawers located in a separate living unit.
Because the suppression motion and the section 995 motion challenging its denial should
have been granted, we will reverse the judgment.
                             II. TRIAL COURT PROCEEDINGS
       A. EARLIER CHARGES
       On April 23, 2013, defendant and her boyfriend took unpurchased merchandise
from a Kohl’s store and were apprehended when they attempted to take speakers from a
Target store. This led to two felony charges of commercial burglary and two
misdemeanor charges of petty theft (§ 484, subd. (a)) against defendant in Monterey
County Superior Court Case No. SS130812B.



       1
           Unspecified section references are to the Penal Code.




                                              2
       While released on bail, defendant was apprehended after taking speakers from
Target on June 10, 2013. This led to a third charge of commercial burglary in Monterey
County Superior Court Case No. SS131200A, this crime occurring while she was on bail.
       On August 29, 2013, defendant signed no contest pleas in both of these cases,
agreeing to felony probation and pleading no contest to one felony count of commercial
burglary in Case No. SS130812B and one amended misdemeanor count of commercial
burglary in Case No. SS131200A. The court referred the cases for a pre-sentence
probation report due in October 2013.
       B. THE COMBINED SUPPRESSION/PRELIMINARY HEARING
       On September 20, 2013, defendant was charged by complaint with possessing
methamphetamine for sale while out on bail two days earlier.
       Defendant scheduled a motion to suppress evidence (§ 1538.5) concurrent with the
preliminary hearing in the case. Defendant requested suppression of all observations by
the officers during and after her detention and search, including any statements she made,
and all evidence located during the search, “including but not limited to the
methamphetamine, alleged pay/owe sheets, and text messages seized from [defendant’s]
person or property.”
       At the hearing, defendant called no witness. Two officers testified as follows.
       Based on information that probationer Naomi Anderson was dealing drugs,
officers set out to perform a probation search of a location in Salinas that Anderson had
informed the probation department was her residence. The search was performed by
several probation officers including Monterey County Probation Officer Kevin Christian
and also a team from the Peninsula Regional Violence and Narcotics Task Force
(PRVNT) including Seaside Police Detective Frank Salzillo. No document recording
Anderson’s probation conditions was produced at the hearing, but Officer Christian
recalled that the condition authorized searching Anderson, “[a]ny room . . . that she has
control over or access to, any vehicles that she has control over or access to.”

                                             3
       After officers knocked at the door of the residence, defendant answered and
opened the door. When Christian entered, he saw Anderson sitting at a kitchen counter.
Salzillo was one of the last officers in the stack to enter the residence. Their first priority
was a protective sweep of the rooms to secure potentially hostile occupants. The officers
had defendant and Anderson sit in the kitchen as they swept and searched the house.
Anderson told Salzillo that it was the house of her and her boyfriend and that defendant
was staying in the converted garage. Salzillo stated, “once she told me that it was her
house, I assumed she had access to the whole house unless a door was locked.” Salzillo
believed that Anderson rented the house. He did not ask if defendant was renting a room
from the probationer.
       According to Christian, “we try every door in the house when we do a search. If
the door is not locked, the probationer has access.” The house had three bedrooms and
the converted garage and another room accessible only from the outside that appeared to
be inhabited. Salzillo recalled that one bedroom was not swept or searched because the
door was locked. Anderson said it was her son’s room and she did not have a key.
Officers observed no one present in that room.
       The garage was accessible from inside the house through a door off the laundry
room. Salzillo and another PRVNT officer were the first to sweep that room for safety.
Salzillo opened the door, which was closed but not locked. The room was dark.
Defendant told Salzillo that her young son was in bed in that room and Salzillo had her
remove him.
       Salzillo and Christian participated in searching Anderson’s bedroom. Neither was
asked whether he found or searched a purse belonging to Anderson.
       The interior door to the garage was open when Christian entered it. Christian and
Salzillo believed that the converted garage was defendant’s room before Christian
searched it. Christian was unaware of any tenancy arrangements in the house. He
noticed a purse on top of something a couple of feet inside the room. He did not say its

                                               4
contents were in plain view. He searched other areas before opening up the purse, which
was not fastened or otherwise closed. Christian did not ask the occupants whose purse it
was and he was not asked at the hearing whose purse he thought it was. Inside the purse
he found a plastic bag containing shards of what appeared to methamphetamine, which a
test by Salzillo presumptively confirmed. Salzillo recalled that Christian also found a
pay/owe sheet in a plastic drawer within a couple of feet of the purse.
       Neither officer saw signs of restricted access to the converted garage or noticed if
there was a lock on the door. Neither officer asked defendant or Anderson who had
access to the garage or whether Anderson had a key. There was no testimony about an
occupant objecting to any stage of the search.
       Christian testified that he had participated in another search where a son had put a
pound of cocaine in his father’s room and shut the door when the officers arrived.
Salzillo stated: “[I]t’s a common practice for us, especially when it’s a drug related
search, you know, in this type of household, that I would consider it more of a flop house,
where there’s in and out—people in and out of the dwelling, primarily drug users. And
it’s been common practice that they will, you know, stash drugs in other party’s rooms to
deter law enforcement. So based on that, the door was unlocked, which gave us access to
that room.”
       After the search, defendant was arrested on a misdemeanor warrant and for
possessing methamphetamine with intent to sell. After Salzillo advised her of her rights,
she said that the methamphetamine was hers and that she had turned from shoplifting to
selling methamphetamine to provide for her child. Neither officer was asked if Anderson
was arrested for constructive possession of the methamphetamine or conspiring to
possess it.
       At a continued hearing, having considered the parties’ briefing and oral argument,
the magistrate denied defendant’s motion to suppress and held her to answer on the
charge of possession for sale of a controlled substance in Monterey County Superior

                                             5
Court No. Case SS131878A. The magistrate reasoned: “So what the Court finds in this
matter is that the entry into the home was a probation search. It was based on reasonable
suspicion of drug activity. There was information that the officers had, probation officers,
and that the [PRVNT] team had, that there was drug activity at the residence. And as part
of Ms. Anderson’s terms of probation and her agreeing to the benefit of probation, she
gave up her right to search and seizure. And the probation search allows search of all
areas in—that was authorized under the terms of probation. So the question is was the
search of all the areas of the house, including the garage that had been converted into a
living space, a bedroom, authorized by the probation conditions. So Ms. Anderson, by
accepting to be on probation, consented to the search terms. The search terms did include
the right to search her home and her vehicle, and that was stated by Officer Christian.
[¶] So the Court does find that she was on probation terms; that it was reasonable for the
officers to go in and do the search. The law provides that—actually, when she is on
probation, she’s consented to these search terms. And the law provides when a consent
to search—when there is a consent to search a home, it includes all the areas over which
there is sole or joint control. And the testimony that was borne out in this case indicated
by particularly Officer Christian that Anderson did have access to the garage and the
room, and she did have joint control of that area. Officer Salzillo’s testimony also
confirmed this, because Officer Salzillo says that Anderson told him that she controlled
the house. She had the lease for the house and was the primary person responsible for it.
[¶] . . . I find that the facts in this matter show that Ms. Anderson was the one in joint
control of the entire residence, including the garage; that there was no prohibition for
anyone, including Ms. Anderson, to go into the garage/bedroom area, and as [] a result, it
was available for law enforcement to search.”
       C. THE MOTION TO SET ASIDE THE INFORMATION
       After defendant was arraigned on the drug charge, she filed a motion to set aside
the information under section 995 which reiterated her suppression motion. The

                                              6
prosecutor filed opposition summarizing the evidence as follows (omitting bullet points
and citations to the reporter’s transcript). “Probationer [Naomi Anderson] reporting 267
Chaparral as her residence to Probation. [¶] Probationer’s statement to Detective Salzillo
that 267 Chaparral residence is ‘my house.’ [¶] Unlocked status of converted garage door
in probationer’s house. [¶] Absence of physical barriers limiting access to converted
garage to other residents of 267 Chaparral. [¶] Absence of signage notifying access
limitation to converted garage to other residents of 267 Chaparral. [¶] Absence of
statements to PRVNT-Probation that probationer lacked access to the converted garage
before they made entry. [¶] Officer Christian’s experiences on similar searches with
probationers hiding drugs in rooms that others occupy that the probationers can access.
[¶] Detective Salzillo’s experiences on hundreds of similar searches informing his belief
that 267 Chaparral was a ‘flophouse’ rife with drug users, people are commonly ‘in and
out,’ and stashing drugs in other’s rooms is a common practice.”
       The motion was argued based on the evidence presented at the suppression
motion. The court took the matter under submission and denied the section 995 motion
by a written ruling that relied on the prosecution’s summary of the evidence in
concluding that “the officer had a reasonable belief that the probationer had at least
access to the garage converted for sleeping, and the purse, if not joint control over same.”
       D. SUBSEQUENT PROCEEDINGS
       After defendant’s section 995 motion was denied, on January 7, 2014, she entered
a no contest plea to the charge of possession for sale and admitted she was out on bail
during the offense after being advised that “you’ll be required to register as a drug
offender pursuant to 11590 of the Health and Safety Code.”2

       2
          The minute order for this hearing did not record advice about drug offender
registration, instead stating she was advised: “Conviction of the offense would require
registration pursuant to PC 290 as a sex offender.”

                                                                                (Continued)

                                             7
       On January 21, 2014, the court suspended imposition of sentence and granted
probation in all three cases as follows: in Case No. SS131878A, formal probation for
three years subject to various fines and conditions and registration as a drug offender; in
Case No. SS130812B, formal probation for three years subject to various conditions,
fines, fees, and assessments, including the condition, “You are not to possess tools used
for the express purpose of facilitating a burglary or theft such as pry bars, screw drivers,
pick lock devices, universal keys or implements or other such devices without the express
permission of your supervising probation officer”; in Case No. SS131200A, formal
probation for three years subject to various fines, fees, and assessments, and “very
similar” conditions, including prohibited possession of tools for the express purpose of
facilitating a burglary or theft.
                                      III. ANALYSIS
       A. STANDARD OF REVIEW
       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. (Illinois v. Rodriguez (1990) 497 U.S. 177,
181; People v. Escudero (1979) 23 Cal.3d 800, 806; In re Scott K. (1979) 24 Cal.3d 395,
405.) On appeal we give deferential review to the fact-finder’s determinations, after
assessing witness credibility and resolving any evidentiary conflicts, of the historical
facts of what happened, including what a searching officer did, observed, thought, and
believed. (Cf. People v. Tully (2012) 54 Cal.4th 952, 979; Ornelas v. U.S. (1996) 517
U.S. 690, 696, 699 (Ornelas).) When an appeal challenges the denial of a section 995



       The Attorney General concedes this error in the minute order and does not oppose
defendant’s request that we order the minute order corrected to reflect the court’s actual
advice.




                                              8
motion that itself challenged a magistrate’s denial of a section 1538.5 motion, we resolve
any evidentiary conflicts and credibility questions in support of those express and implicit
factual findings by the magistrate that are supported by substantial evidence. (People v.
Shafrir (2010) 183 Cal.App.4th 1238, 1244-1245; cf. People v. Laiwa (1983) 34 Cal.3d
711, 718; People v. Superior Court (Cooper) (2003) 114 Cal.App.4th 713, 717.)
       However, on appeal we independently determine whether the conduct involved in
a search was constitutionally reasonable, “whether the[] historical facts, viewed from the
standpoint of an objectively reasonable police officer,” justified the search. (Ornelas,
supra, 517 U.S. at p. 696; People v. Hughes (2002) 27 Cal.4th 287, 327.) “The
constitutional precept of ‘reasonableness’ as to searches and seizures is not a ‘fact’ which
can be ‘found’ or not found in any given case. Rather, it is a standard, a rule of law,
external, objective and ubiquitous, to be applied to the facts of all cases.” (People v.
Manning (1973) 33 Cal.App.3d 586, 599; contra, People v. Tidalgo (1981) 123
Cal.App.3d 301, 307.)
       The Attorney General cites People v. Ermi (2013) 216 Cal.App.4th 277, 281, for
the proposition, “[t]he question of joint access to control over a room is a factual one
reviewed for substantial evidence.” However, the issue critical to consent is not whether
the consenting party had actual access, but whether it was “objectively reasonable for the
searching officer to believe that the person giving consent had authority to do so . . . .”
(People v. Jenkins (2000) 22 Cal.4th 900, 974 (Jenkins).) What is objectively reasonable
is a question of law, not fact.
       B. THE SCOPE OF THE PROBATION SEARCH
       It is unquestioned that Anderson’s probation search condition authorized officers
to enter and search her residence. (People v. Woods (1999) 21 Cal.4th 668, 675-676
(Woods).) “A search conducted pursuant to a valid consent does not violate the Fourth
Amendment unless the search exceeds the scope of the consent.” (People v. Bravo
(1987) 43 Cal.3d 600, 605.)

                                              9
       “[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.” (Jenkins, supra, 22 Cal.4th 900, 974.)
       “The ‘common authority’ theory of consent rests ‘on mutual use of the property by
persons generally having joint access or control for most purposes, so that it is reasonable
to recognize that any of the co-inhabitants has the right to permit the inspection in his
own right and that the others have assumed the risk that one of their number might permit
the common area to be searched.’ ” (Woods, supra, 21 Cal.4th at p. 676, quoting United
States v. Matlock (1974) 415 U.S. 164, 172, fn. 7.) A person may assume the risk of
search by associating with a probationer without knowing his or her associate is on
probation. What is relevant is the searching officer’s state of mind. (People v. Schmitz
(2012) 55 Cal.4th 909, 923 (Schmitz).) Officers who are aware of a probation search
condition (People v. Robles (2000) 23 Cal.4th 789, 800) “generally may only search
those portions of the residence they reasonably believe the probationer has complete or
joint control over.” (Woods, supra, 21 Cal.4th at p. 682.) “The sanctity of the home
demands recognition that persons living with a probationer or parolee ‘retain valid
privacy expectations in residential areas subject to their exclusive access or control, so
long as there is no basis for officers to reasonably believe the probationer has authority
over those areas.’ ” (Schmitz, supra, 55 Cal.4th at p. 920, quoting People v. Robles,
supra, at p. 798.)
       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

                                             10
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. (Cf. People v. Britton (1984) 156
Cal.App.3d 689, 701, disapproved on another ground by People v. Williams (1999) 20
Cal.4th 119, 135; People v. Boyd (1990) 224 Cal.App.3d 736, 749 (Boyd).)
       In this case, the searching officer believed he was searching defendant’s bedroom.
On appeal, the parties argue about whether the probationer had joint control over or joint
access to defendant’s bedroom without citing any precedent involving landlords or
overnight guests.
       In People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, this court
reviewed several cases involving a landlord’s authority. “[A] landlord may not give valid
third-party consent to a police search of a house rented to another. [Citations.] The same
principle applies to prevent a finding of third-party consent where the leased property is
an apartment unit [citation], a room in a boarding house [citation], a garage [citation], or
a locker [citation]. Likewise, a hotel clerk may not consent to the search of an occupant’s
room. [Citations.]” (Id. at p. 1200.)
       Even without a formalized tenancy, an overnight guest in another’s residence has
some reasonable expectations of privacy. “To hold that an overnight guest has a
legitimate expectation of privacy in his host’s home merely recognizes the everyday
expectations of privacy that we all share.” (Minnesota v. Olson (1990) 495 U.S. 91, 98
(Olson).) “We will all be hosts and we will all be guests many times in our lives. From
either perspective, we think that society recognizes that a houseguest has a legitimate
expectation of privacy in his host’s home. [¶] From the overnight guest’s perspective, he
seeks shelter in another’s home precisely because it provides him with privacy, a place
where he and his possessions will not be disturbed by anyone but his host and those his
host allows inside. . . . [¶] . . . The point is that hosts will more likely than not respect
the privacy interests of their guests, who are entitled to a legitimate expectation of

                                               11
privacy despite the fact that they have no legal interest in the premises and do not have
the legal authority to determine who may or may not enter the household.” (Id. at pp. 98-
99.) Olson determined that it violated the Fourth Amendment rights of an overnight
guest for the police to arrest him after making a warrantless, nonconsensual entry into a
duplex. (Id. at p. 93.) Olson was a seizure case and there was no separate discussion of a
guest’s freedom from warrantless searches.
       In this case the searching officer, Christian, and Detective Salzillo both believed
the converted garage was defendant’s room in the probationer’s residence before
Christian searched it. We conclude that this subjective belief was objectively reasonable
considering (a) the probationer had said so, (b) the probationer had a separate bedroom,
and (c) defendant’s child was in bed in the room when the officers arrived.
       The question is what “widely shared social expectations” govern defendant’s
privacy in this converted room. (Georgia v. Randolph (2006) 547 U.S. 103, 111.) It is
significant that the probationer was not merely an unrelated adult housemate, but
apparently the resident leaseholder of the premises, as the magistrate found. Though
property law is not determinative, “when the person who consents to the search enjoys a
possessory interest that the defendant does not share in the premises searched . . . , the
authority of a third party to consent to a search may be established.” (Jenkins, supra, 22
Cal.4th 900, 979.)
       On appeal, both sides present colorful characterizations of the living arrangement
that are not supported by the testimony. Defendant repeatedly characterizes the
converted garage as her “private room,” “a private rented room,” “a private living space
within her rented room,” and her “closed private bedroom.” However, there was no
testimony that defendant was paying rent for the room and the magistrate did not so find.
On the other hand, while the room was not posted “private,” it was a separate bedroom
inhabited by defendant and her child, and its door was closed, though not locked, until it
was opened for the protective sweep.

                                             12
       The Attorney General emphasizes that the probationer told the officers it was
“her” house and repeats the opinion of Detective Salzillo that it was a “flop” house with
drug users going in and out. While the search did reveal drugs in the house, as defendant
points out, Salzillo did not cite any pre-search evidence supporting this opinion. A search
must be justified by information then available to the searching officers, not by evidence
discovered by the search. (People v. Harris (1975) 15 Cal.3d 384, 392.) There is no
indication that the magistrate relied on this opinion, though the superior court did so in
denying the section 995 motion.
       The presence of an overnight guest should prompt a searching officer to pause and
consider the guest’s privacy expectations before intruding into an area assigned to the
guest. In our opinion, it flouts widely held social expectations to define joint access as
simply having the physical ability to open a door, walk into a room, and open drawers.
       “Whether a woman has a legitimate privacy interest in the contents of her purse
depends in part on where the purse is located.” (People v. Shepherd (1994) 23
Cal.App.4th 825, 829 [woman had no reasonable expectation of privacy in purse left in
stolen car].) Purses have been recognized to be essentially personal and private
containers. (People v. Veronica (1980) 107 Cal.App.3d 906, 909 (Veronica) [“In this
case . . . there was simply nothing to overcome the obvious presumption that the purse”
in a parolee’s residence belonged to his wife, not to him].)
       Defendant also invokes People v. Baker (2008) 164 Cal.App.4th 1152 (Baker). In
a car stopped for speeding were the male parolee driver and a woman who was sitting in
the front passenger seat with a purse at her feet. (Id. at p. 1156.) The court
acknowledged that “a purse has been recognized as an inherently private repository for
personal items” (id. at p. 1159) and “is not generally an object for which two or more
persons share common use or authority.” (Id. at p. 1160.) Without more evidence, the
appellate court concluded “there is nothing to overcome the obvious presumption that the
purse belonged to the sole female occupant of the vehicle who was not subject to a

                                             13
parole-condition search.” (Ibid.) On the limited facts, “there could be no reasonable
suspicion that the purse belonged to the driver, that the driver exercised control or
possession of the purse, or that the purse contained anything belonging to the driver.”
(Id. at p. 1159.)3
       The Attorney General seeks to distinguish Veronica and Baker because defendant
and the probationer were both female, so “the police could reasonably believe that the
‘distinctly female’ item—the purse, was [the probationer’s], when they discovered it in
[defendant’s] room—a room [the probationer] had joint control over or access to.”
However, there was no testimony that any officer subjectively entertained this belief and
we do not consider it objectively reasonable. No special circumstances indicated that the
probationer was keeping her purse, or one of them, in defendant’s bedroom, instead of
her own bedroom, which the officers had already searched. There was no evidence that
the probationer had recently left defendant’s room or that she had a particularly intimate
relationship with defendant. Had the officers found two purses near defendant and the
probationer in the kitchen where they were sitting, there may have been some ambiguity
about the ownership of each purse, but the purse in question was located in what the
officers recognized to be the female defendant’s bedroom.
       We find guidance in People v. Daniels (1971) 16 Cal.App.3d 36 (Daniels), where
a mother specifically consented to a search of a bedroom in her house where her adult son

       3
         In some cases, the presumption of female ownership has been overcome and
appellate courts have upheld purse searches based on evidence that the purse owner’s
boyfriend, a parolee or probationer, had joint control over or at least joint access to the
contents of the purse. (People v. Smith (2002) 95 Cal.App.4th 912, 916, 919 [facts
indicated either that male probationer and his girlfriend were “sharing in a criminal
enterprise” or that she knew he was using the purse “as a repository”]; Boyd, supra, 224
Cal.App.3d 736, 750-751 [“the gender neutral handbag” was “owned or controlled by
one or both of the [male] parolees.”]; People v. Ermi, supra, 216 Cal.App.4th 277, 281.)
Those cases involve different fact patterns than presented here.




                                             14
was staying rent-free. (Id. at p. 42.) While the son was in the living room, the police
entered the bedroom and opened dresser drawers and a suitcase. (Ibid.) The court
concluded that while the mother’s “consent to search covered not only the bedroom as
such but also the furniture therein, i.e., the dresser, dresser drawers and bed” (id. at p. 45),
it did not justify opening a suitcase found in that bedroom. (Id. at pp. 42-43, 45; cf.
People v. Koury (1989) 214 Cal.App.3d 676, 690 [occupant of house had a legitimate
expectation of privacy in a closed pouch, a locked briefcase, and a locked suitcase located
in a bedroom].) While the purse in our case was located in the probationer’s residence,
the available evidence indicated it was not her purse and there was no evidence of the
probationer’s actual access to or control over the contents of the purse.
       As to the earlier search of what was apparently a dresser drawer in defendant’s
bedroom, we consider the facts distinguishable from Daniels, supra, 16 Cal.App.3d 36,
where the court concluded the mother had actual or at least apparent authority to consent
to a search of her adult son’s bedroom and dresser drawers in the bedroom. (Id. at
pp. 42-43.) “The evidence supports the inference . . . defendant did not have exclusive
possession or control over the bedroom which he was permitted to use; and his mother,
by virtue of her ownership and the circumstances in the case, had the right to enter and
search the bedroom at will.” (Id. at p. 43.) The court noted that the defendant, who was
present, did not object to the search. (Id. at pp. 44-45.)
       In our case, while the magistrate found that the probationer was the leaseholder,
there was no evidence of a family relationship or equivalent familiarity between the
probationer and defendant. The probationer did not expressly consent to searching
defendant’s bedroom or otherwise manifest the same level of authority over the converted
garage as did the mother in Daniels. We conclude that the prosecution did not present
sufficient evidence to justify a warrantless search or an objectively reasonable belief that
the probationer had authority over the contents of either the drawers or the purse in
defendant’s bedroom. We see no basis for upholding the denial of the section 995 motion

                                              15
and conclude that it should have been granted. (See People v. Lilienthal (1978) 22 Cal.3d
891, 897 [denial of section 995 motion may be upheld “if there is substantial legally
obtained evidence to support the information . . . .”].)
       C. VALIDITY OF PROBATION CONDITION REGARDING BURGLARY TOOLS
       On appeal defendant also challenges a probation condition that arose from her two
convictions of commercial burglary, which we are not reversing. That condition states:
“You are not to possess tools used for the express purpose of facilitating a burglary or
theft such as pry bars, screw drivers, pick lock devices, universal keys or implements or
other such devices without the express permission of your supervising probation officer.”
She contends it must be modified to include a knowledge element, specifically to prohibit
possessing burglary tools “knowingly.”
       While defendant did not object to this condition below, a reviewing court may
examine the constitutionality of a probation condition, even if not challenged in the trial
court, if the question can be resolved as a matter of law without reference to the
sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.) The Attorney
General has conceded that modification would be appropriate, relying on a decision by
this court in which the California Supreme Court has subsequently granted review.
(People v. Povio (2014) 227 Cal.App.4th 1424, review granted October 15, 2014,
S220685.)
       This is not a situation in which it is possible to infer that a probation condition has
the same implicit mental element as the penal statutes it was written to enforce. (E.g.,
People v. Kim (2011) 193 Cal.App.4th 836, 843, 847; People v. Rodriguez (2013) 222
Cal.App.4th 578, 593.) The challenged condition appears to derive from part of
section 466, a lengthy statute that makes three kinds of conduct a misdemeanor. It
prohibits (a) possessing a burglary tool with the intent to burglarize, (b) knowingly




                                             16
creating such a tool without a property owner’s authorization, and (c) creating such a tool
with the knowledge or at least a reason to believe it will be used in a crime.4
       In construing related section 466.5, which prohibits use of a motor vehicle master
key, People v. Valenzuela (2001) 92 Cal.App.4th 768 concluded that since the statute
already has an explicit specific intent element, it need not be construed like weapon
possession statutes as also requiring constructive knowledge of the nature of the item.
(Id. at pp. 778-779.) The court said of section 466, “the elements of the crime described
in that section are possession and intent. There is no requirement that the defendant
know that the screwdriver is a screwdriver, or the master key is a master key, or even that
a particular tool is a slim jim. In other words, the possession of each of the items is
lawful until it is intended to be used feloniously.” (Valenzuela, supra, at p. 777; People
v. Southard (2007) 152 Cal.App.4th 1079, 1084-1085 [elements of § 466 include
possession of tools with the intent to use to use them for breaking and entering].)
       The challenged probation condition does not include any of the express mental
elements found in section 466, neither specific intent, actual knowledge, nor constructive
knowledge. This condition may be made constitutionally clear by including either an
express knowledge element (e.g., “do not possess a tool that you know or reasonably


       4
           Section 466 makes it a misdemeanor to have “upon him or her in his or her
possession a picklock, crow, keybit, crowbar, screwdriver, vise grip pliers, water-pump
pliers, slidehammer, slim jim, tension bar, lock pick gun, tubular lock pick, bump key,
floor-safe door puller, master key, ceramic or porcelain spark plug chips or pieces, or
other instrument or tool with intent feloniously to break or enter into any building,
railroad car, aircraft, or vessel, trailer coach, or vehicle as defined in the Vehicle Code, or
who shall knowingly make or alter, or shall attempt to make or alter, any key or other
instrument named above so that the same will fit or open the lock of a building, railroad
car, aircraft, vessel, trailer coach, or vehicle as defined in the Vehicle Code, without
being requested to do so by some person having the right to open the same, or who shall
make, alter, or repair any instrument or thing, knowing or having reason to believe that it
is intended to be used in committing a misdemeanor or felony . . . .” (Our italics.)



                                              17
should know is used to facilitate a burglary or theft”) or an express intent element (e.g.,
“do not possess a specified tool with the intent to commit a burglary or theft” or “do not
possess a specified tool with the purpose of committing a burglary or theft”). The latter
conforms more closely to section 466. As this case is being remanded for other reasons,
the trial court will have an opportunity to remove the vagueness from this condition.
                                    IV. DISPOSITION
       The judgment is reversed. The court shall enter an order granting defendant’s
section 995 motion in case SS131878A. The minute order of January 7, 2014 shall be
corrected to state, “conviction of the offense would require registration pursuant to
Health and Safety Code section 11590.” The court is directed to modify the probation
condition as indicated above.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           MÁRQUEZ, J.




People v. Carreon
H040632




                                   19
Trial Court:                                  Monterey County
                                              Superior Court No.: SS131878A


Trial Judge:                                  The Honorable Julie R. Culver



Attorney for Defendant and Appellant          Monica Stoner
Leslie Stepheny Carreon:                      under appointment by the Court
                                              of Appeal for Appellant



Attorneys for Plaintiff and Respondent        Kamala D. Harris
The People:                                   Attorney General

                                              Gerald A. Engler,
                                              Senior Assistant Attorney General

                                              René A. Chacón,
                                              Supervising Deputy Attorney General

                                              Bruce Ortega,
                                              Deputy Attorney General




People v. Carreon
H040632




                                         20
