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Filed 3/28/01 P. v. Hill CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,
A097724
v.

(Solano County
JERRY LEE HILL,
Super. Ct. No. FC191162)

Defendant and Appellant.

Defendant appeals from the judgment following his conviction of receiving stolen
property. We hold that defendant's motion to suppress evidence was properly denied,
concluding that a search of defendant's motel room was lawful even though the police
were unaware of defendant's probation search condition. We also conclude there was
sufficient accomplice corroboration and affirm.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

Following a plea agreement, defendant's girlfriend, Jamie Gregory, testified that
on March 17, 2001, defendant asked her to help him burglarize the home of Patricia
Bond. Gregory refused because Bond was her friend. Defendant responded by striking
Gregory in the face with an auto part, breaking her nose.
The
next
morning,
defendant told Gregory he would kill her if she did not help
with the burglary. Gregory called Bond between 8:30 and 9:00 a.m. to determine if she
was home. Bond testified that Gregory appeared surprised that Bond had not yet left for
church. Bond was suspicious because Gregory was living in her car and had recently

asked Bond for money. Bond left home, locking the doors. While Bond was gone,
Gregory entered the house through a rear window and admitted defendant through a
sliding glass door. They took jewelry, coins, a DVD player, VCR, tools and other items.
After defendant sold some of Bond's property, he and Gregory checked into a
Travelodge.

Discovering the burglary upon her return, Bond called the police and Officer
Moore responded. Based on Bond's report, Moore considered Gregory a suspect. Bond
described Gregory's car, which was seen later at the Travelodge. Gregory testified that
she was walking to her car to get a clean shirt when Moore approached and told her he
was investigating a burglary. Gregory told Moore she was with defendant, who was
inside the Travelodge room taking a shower. Moore noted facial injuries and several
lacerations on Gregory's nose. Gregory reentered the room, and spoke with defendant
near the bathroom door. Officer Moore later searched the motel room and recovered
some of Bond's jewelry and silver dollars hidden under the bathroom sink and behind the
toilet. He found other stolen property in dresser drawers. Moore did not recover Bond's
DVD player or VCR, which defendant had already sold. After his arrest, defendant told
Moore that he could not be charged with a burglary because he did not enter the house.
He also asked, "If I help you get the other property back, can we work some kind of deal
to help [Gregory] out?" He said, "[I]f I could get some kind of guarantee for her . . . I
could help you guys out and get the rest of that property back."

Defendant's niece Mali Hill and his friend Taamra Rose testified that Gregory
injured her face when she fell on an auto part while defendant was fixing her car.
Another friend testified that Gregory approached her several weeks before the burglary
and tried to sell her a ring.

The jury convicted defendant of receiving stolen property, but found him not
guilty of burglary. The court found the defendant's prior conviction was not true.
Defendant was sentenced to three years in prison.

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DISCUSSION
I.
Motion to Suppress
Defendant moved to suppress his statements to Officer Moore and the evidence
seized in the motel room. The trial court denied the motion, finding that because
defendant was on probation he had no reasonable expectation of privacy. Defendant
claims the court erred because Moore had been erroneously informed that defendant was
on parole. Only later, after the search, did Moore determine that defendant had a
probation search condition.1 We reject defendant's claim.
A.
Factual Background

At the suppression hearing, Moore testified that after Bond identified both
Gregory and defendant as possible suspects, Moore contacted Gregory at the Travelodge
that same morning. Gregory's car had also been discovered there and Gregory admitted
she was staying at the motel with her boyfriend. Gregory refused Moore's request to
search the motel room. When Moore asked to speak to defendant, Gregory went back
inside. Through a crack in the door, Moore watched as Gregory stood at the bathroom
door and whispered to defendant. Defendant came outside and confirmed that he was
staying at the motel room with Gregory. Moore could not recall if he asked defendant for
permission to search.

Moore radioed the police dispatcher and asked whether Gregory or defendant was
on probation. When the dispatcher erroneously told him no, Moore asked his patrol
supervisor to obtain a warrant. While awaiting the arrival of a detective, Moore received
another call from the dispatcher who again erroneously advised him that defendant was
on parole. Relying on this information, Moore searched the motel room and found
property taken in the burglary. Several days later Moore learned that defendant was no
longer on parole, but was on probation with a search condition.

1 Nowhere in the record are the terms of defendant's probation search condition listed. Defendant does
not dispute, however, that he was subject to a condition allowing law enforcement officers to search his
residence.

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B.
Analysis

Defendant contends the search of the motel room based on defendant's probation
search condition was unlawful because Officer Moore was unaware of this condition at
the time of the search. Defendant's argument is contrary to existing California Supreme
Court authority. In In re Tyrell J. (1994) 8 Cal.4th 68 (Tyrell J.), the Supreme Court
upheld a warrantless search of a juvenile probationer, finding irrelevant the police
officer's ignorance of the minor probationer's search condition. (Id. at pp. 74, 84-86.)2
The Supreme Court concluded that a juvenile probationer subject to a valid search clause
does not have a reasonable expectation of privacy over his person or property and thus
his "expectation of privacy is not one society is prepared to recognize as reasonable and
legitimate." (Id. at p. 86.) The court emphasized: "There is no indication the minor was
led to believe that only police officers who were aware of the condition would validly
execute it. The minor certainly could not reasonably have believed [that the searching
officer] would not search him, for he did not know whether [the officer] was aware of the
search condition." (Ibid., italics in original.)
In
People v. Reyes (1998) 19 Cal.4th 743, the Supreme Court extended the
reasoning of Tyrell J. to parolees and concluded that parole searches conducted without
reasonable suspicion do not intrude on a reasonable expectation of privacy. (Id. at p.
751.) The court stated: "The rationale of Tyrell J. can be stated succinctly. When
involuntary search conditions are properly imposed, reasonable suspicion is no longer a
prerequisite to conducting a search of the subject's person or property. Such a search is

2 The Supreme Court initially granted review in People v. Moss to reconsider its holding in Tyrell J. that
a search of a probationer subject to a search clause is valid even if the searching officer was unaware of
the condition. (People v. Moss, (March 13, 2000, G024202) [nonpub. opn.], review granted June 28,
2000, S087478.) However, on January 16, 2002, the Supreme Court dismissed the petition as
improvidently granted and remanded the matter to the court of appeal. Subsequently, the Supreme Court
granted review in two cases in which the Fifth District concluded a warrantless automobile search was
unlawful even though police later discovered that three of the four occupants were on probation. (People
v. Hanks (Nov. 14, 2001, F035120) [nonpub. opn.], review granted March 13, 2002, S102982, and People
v. Hester (Nov. 7, 2002, F034897) [nonpub. opn.], review granted March 13, 2002, S102961.)
Consideration of Hanks and Hester has now been deferred pending consideration and disposition of a
related issue in People v. Sanders (Nov. 20, 2000, F033862), review granted February 28, 2001, S094088.

4

reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary,
capricious or harassing. Tyrell J.'s reasoning applies with equal force to adults. In both
cases the expectation of privacy is already reduced by the absence of the warrant
requirement. As a convicted felon still subject to the Department of Corrections, a
parolee has conditional freedom--granted for the specific purpose of monitoring his
transition from inmate to free citizen. The state has a duty not only to assess the efficacy
of its rehabilitative efforts but to protect the public, and the importance of the latter
interest justifies the imposition of a warrantless search condition." (Id. at p. 752.)
The
reasoning
of
Tyrell J. applies even more forcefully to searches of adult
probationers who, unlike minors, consent to searches in order to obtain probation. (See
Tyrell J., supra, 8 Cal.4th at p. 82.) In People v. Bravo (1987) 43 Cal.3d 600, 608, the
Supreme Court emphasized that an adult probationer consents to a waiver of his Fourth
Amendment rights in exchange for the opportunity to avoid serving a state prison
sentence. " `[W]hen [a] defendant in order to obtain probation specifically [agrees] to
permit at any time a warrantless search of his person, car and house, he voluntarily
[waives] whatever claim of privacy he might otherwise have had.' " (Id. at p. 607,
quoting People v. Mason (1971) 5 Cal.3d 759, 766.) "We read the consent in Mason as 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." (Bravo, supra,
43 Cal.3d at p. 607.)

As in the case of minor probationers, we presume adult probationers are aware that
officers can stop them at any time or place and conduct a warrantless search. Like the
minor probationer in Tyrell J., defendant was never led to believe that only officers who
were actually aware of the search condition could validly execute it. Moreover, since
defendant did not know whether Moore was cognizant of the search condition, he could
not have reasonably believed the motel room would not be searched.

Nevertheless, defendant argues that the Supreme Court limited the application of
Tyrell J. in People v. Robles (2000) 23 Cal.4th 789, by requiring "knowledge first" to

5

validate a residential search. We disagree. Robles is distinguishable on its facts.3 In
Robles, officers searched the garage of the defendant, who was not on probation and not
subject to any search condition. The police sought retroactively to justify their
warrantless search on the basis of the probationary status and search condition of the
defendant's brother, who lived with him. At the time of the search, the police were
unaware of the brother's search condition. (Id. at p. 798.)

In determining that the search was unlawful, the Supreme Court first focused on
the privacy rights of nonprobationers who live with a person subject to a search
condition: "The logic of Tyrell J. cannot be stretched to vitiate the illegality of the police
action here. Even though a person subject to a search condition has a severely
diminished expectation of privacy over his or her person and property, there is no doubt
that those who reside with such a person enjoy measurably greater privacy expectations
in the eyes of society. . . . In addition, they 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. [Citations.] That
persons under the same roof may legitimately harbor differing expectations of privacy is
consistent with the principle that one's ability to claim the protection of the Fourth
Amendment depends upon the reasonableness of his or her individual expectations.
[Citations.]" (Robles, supra, 23 Cal.4th at p. 798.)
Second,
the
Robles court addressed the concerns of the exclusionary rule
implicated in such a search. The court reiterated its observation in Tyrell J. that
dispensing with a strict "knowledge-first" rule would not encourage police to engage in
warrantless searches because officers would be taking the chance that if the person
targeted is not subject to a search condition, any contraband found will be inadmissible in
court. (Robles, supra, 23 Cal.4th at p. 799.) However, the Robles court cautioned
"residential searches present an altogether different situation." (Id. at p. 800.) The court

3 To the extent that Robles held that probation searches must be reasonably related to the "special needs"
and purposes of probation, such limitation has been rejected by the United States Supreme Court in
United States v. Knights (2001) 534 U.S. 112, 116-121.

6

stated: "Notably, residences frequently are occupied by several people living together,
including immediate family members and perhaps other relatives or friends, as well as
guests. Allowing the People to validate a warrantless residential search, after the fact, by
means of showing a sufficient connection between the residence and any one of a number
of occupants who happens to be subject to a search clause, would encourage the police to
engage in facially invalid searches with increased odds that a justification could be found
later. It also would create a significant potential for abuse since the police, in effect,
would be conducting searches with no perceived boundaries, limitations, or justification."
(Ibid.)

The circumstances of the search considered by the Robles court differ significantly
from those here. Unlike the defendant in Robles, defendant is a probationer subject to a
search condition. Nevertheless, defendant claims that, even as a probationer with a
search condition, he retained a limited expectation of privacy to be free from warrantless
searches of his residence shared with others. Defendant argues that following the
analysis in Robles, we should extend additional Fourth Amendment protections to him in
order to guard innocent non-probationer housemates from improper police conduct.

We reject defendant's reasoning, and decline to extend Robles beyond its facts.
The search of defendant's motel room falls within the "logic" of Tyrell J. (Robles, supra,
23 Cal.4th at p. 798.) Tyrell J. provided that a probation search condition can validate the
warrantless search of a juvenile probationer, even if the police did not know of the
condition at the time of the search. The Robles court does not appear to disagree. The
court states, in discussing and quoting from Tyrell J., that a juvenile probationer subject
to a search condition must expect that an authorized official " `could at any time stop [the
probationer] on the street, at school, or even enter his home, and ask that he submit to a
warrantless search.' " (Robles, supra, at p. 798, italics added; see Tyrell J., supra, 8
Cal.4th at p. 86.)

Nowhere in its opinion does the Robles court state that Tyrell J. is limited to
nonresidential searches or to searches of a residence solely occupied by the probationer.
Instead, Robles states only that the "logic" of Tyrell J. does not apply to "vitiate the

7

illegality of the police action" in Robles. (Robles, supra, 23 Cal.4th at p. 798.) That
particular police action was not a search that resulted in evidence incriminating a
probationer, as it was in Tyrell J. and in defendant's matter. If Robles is applied as
defendant urges, a probationer could recapture the rights he has waived by the simple
expedient of residing with a nonprobationer.

Nor is defendant's extension of Robles logically supported. In return for his
placement on probation, defendant consented to searches of his residence. Defendant
cannot waive his right to be free from warrantless searches on one hand, yet retain a
reasonable and unfettered expectation of privacy on the other. Under the binding
authority of Tyrell J., defendant's waiver ended his Fourth Amendment privacy right,
except for freedom from arbitrary or harassing searches.

While we acknowledge the impact of residential searches on those living with the
probationer, defendant would have us carve out a limited Fourth Amendment protection
for him in order to protect those who live with him. The law already provides these co-
habitants with remedies. Any incriminating evidence offered against them could be
suppressed and other civil remedies may be available for pursuit. To go further and
suppress evidence against defendant confers upon him a right to which he is not entitled.
II.
Corroboration of the Accomplice's Testimony
Defendant
contends
that Gregory's uncorroborated accomplice testimony was
insufficient to support his conviction for receiving stolen property. We disagree.

Defendant has waived this issue by conceding at trial the existence of sufficient
corroboration. After the prosecution rested, the court, on its own, raised the issue of the
sufficiency of corroborative evidence. In response, defense counsel referred to
defendant's statement that he could help the police by getting Bond's remaining property
for them. Defense counsel told the court: "I believe that that would be sufficient
corroboration for the receiving [stolen property] charge, but I don't believe it's sufficient
corroboration as to the burglary charge." Nevertheless, the court found that Gregory's
testimony was corroborated on the burglary count.

8

In closing argument, counsel again conceded the sufficiency of the evidence on
the receiving stolen property count: "[T]here's evidence that he received stolen property,
and it doesn't depend on the testimony of Jamie Gregory. I thought that counsel made a
good point of that with her argument that he's in the bathroom where much of the stuff is
located that came from the house. Well, that's evidence that you can consider on this
count of receiving stolen property. Doesn't prove he stole it, but it sure proves that he's
in a place where he's . . . apparently got control over it, got some knowledge that it's
there."

Even absent defendant's concession, his claim of insufficient corroboration is
without merit. A conviction cannot be based solely on accomplice testimony. (Pen.
Code, � 1111.) There must be sufficient corroborating evidence that "shall tend to
connect the defendant with the commission of the offense; and the corroboration is not
sufficient if it merely shows the commission of the offense or the circumstances thereof."
(Ibid.) To adequately corroborate accomplice testimony, the prosecution must " `produce
independent evidence which, without aid or assistance from the testimony of the
accomplice, tends to connect the defendant with the crime charged. [Citation.]'
[Citation.]" (People v. Rodriques (1994) 8 Cal.4th 1060, 1128.) The nature and extent of
corroboration required is not great. "Corroborating evidence may be circumstantial in
nature, and may consist of evidence of the defendant's conduct or his declarations."
(People v. Garrison (1989) 47 Cal.3d 746, 773.) "[C]orroborative evidence is sufficient
even though slight and entitled to little consideration when standing alone. [Citation.]"
(People v. Wood (1961) 192 Cal.App.2d 393, 396.) "Only a portion of the accomplice's
testimony need be corroborated, and the corroborative evidence need not establish every
element of the offense charged. [Citation.] All that is required is that the evidence
connect the defendant with the commission of the crime in such a way as may reasonably
satisfy the jury that the [accomplice] is telling the truth. [Citation.]" (People v. DeJesus
(1995) 38 Cal.App.4th 1, 25, internal quotation marks omitted.) In determining the
sufficiency of corroborative evidence we must view the evidence in the light most
favorable to the verdict and uphold the trial court's disposition if, on the evidentiary

9

record, the jury's determination is reasonable. (People v. Garrison, supra, 47 Cal.3d at
p. 774.)

A conviction for stolen property requires proof that the property was stolen, the
defendant knew it was stolen, and the defendant had possession of it. (Pen. Code, � 496,
subd. (a).) Defendant was located in the Travelodge motel room where Bond's stolen
property was found, hours after the burglary. After Moore recovered Bond's property,
defendant told Moore that he could not be charged with burglary since he did not actually
enter the house. Defendant's statement indicates knowledge of the burglary and that the
items recovered by Moore were stolen. Defendant also told Moore that he would help get
Bond's remaining property back in exchange for a deal for Gregory. This statement
further demonstrates defendant's knowledge that the items found in the motel room were
stolen.

Moreover, when Moore initially contacted Gregory at the Travelodge, she told
him that defendant was inside the motel room taking a shower. Moore then watched as
Gregory went back inside the motel room and talked to defendant near the bathroom.
When Moore later entered the bathroom to search it, he discovered Bond's stolen jewelry
hidden in a wet towel underneath the sink and her silver coins hidden at the rear of the
toilet. This evidence supports an inference that that defendant concealed the property
while Moore was outside the room with Gregory.

While this evidence is not overwhelming, it tends to connect defendant to the
commission of the crime of which he has been convicted and we must uphold the jury's
verdict. (People v. Garrison, supra, 47 Cal.3d at p. 774.) Because Gregory's testimony
was sufficiently corroborated, it follows that her testimony was properly admitted, and
adequately supports defendant's conviction for receiving stolen property.
III. Ineffective Assistance of Counsel

Defendant's last contention is that his trial counsel was ineffective for failing to
move to dismiss the receiving stolen property charge based on insufficient accomplice
corroboration. In order to demonstrate ineffective assistance of counsel, defendant must
show not only the deficiency of counsel's performance, but also that prejudice resulted.

10

(Strickland v. Washington (1984) 466 U.S. 668, 687.) Given our conclusion regarding
the sufficiency of the accomplice corroboration, defendant has failed to meet either
burden.
DISPOSITION

The judgment is affirmed.

_________________________

Corrigan, Acting P.J.

We concur:

_________________________
Parrilli, J.

_________________________
Pollak, J.

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