NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

THE COURT*

Appellant, Cynthia Lynn Plett, pled no contest to transportation of a controlled substance (count 1/Health & Saf. Code, § 11379, subd. (a)), possession for sale of methamphetamine (count 2/Health & Saf. Code, § 11378), possession of methamphetamine (count 3/Health & Saf. Code, § 11377, subd. (a)), and possession of narcotics paraphernalia (count 4/Health & Saf. Code, § 11364). Plett also admitted a prior conviction enhancement in count 1 (Health & Saf. Code, § 11370.2, subd. (c)).

On July 13, 2010, the court sentenced Plett to the middle term of three years.

On appeal, Plett contends: 1) the court erred when it denied her motion to suppress; and 2) the court violated the terms of her plea agreement by its failure to dismiss the prior conviction enhancement. We agree with this latter contention and we will dismiss the prior conviction enhancement. In all other respects, we will affirm.

FACTS

On July 27, 2009, during a search of a van occupied by Plett and Laurence Payne, Kern County Sheriff's Deputy William Davis found approximately 7.75 grams of methamphetamine, three small quantities of marijuana, and various narcotics paraphernalia.

On August 14, 2009, the district attorney filed an information charging Plett and Payne with several drug related counts and enhancements.

On November 9, 2009, Plett filed a motion to suppress.

On November 30, 2009, at a hearing on the motion, Officer Davis testified it was the policy of the Kern County Sheriff's Department to check on stranded motorists. On July 27, 2009, at approximately 9:00 a.m., he saw the van occupied by Plett and Payne, parked on the side of Highway 14 between Bakersfield and Ridgecrest in an area that was barren desert. Officer Davis was concerned that the van occupants might be stranded and stopped to investigate because the temperature was expected to reach 112 degrees that day and the van appeared to be broken down.

Payne was seated in the driver's seat as Officer Davis pulled in behind the van but quickly moved to the rear cargo area. As Officer Davis walked to the front passenger's side of the van, Plett opened a curtain on one of the windows in the rear cargo area and looked outside. When Plett closed the curtain, Officer Davis moved to the front of the van so he could get a better view inside through the windshield. Officer Davis then saw Plett in the middle section of the van moving some items by a bucket that contained approximately two inches of what appeared to be motor oil. Payne was in the rear section moving and "manipulating" items that were on a seat that was folded down flat and which had on top of it two cardboard boxes and some folded clothes.

Officer Davis yelled for Plett and Payne to show their hands and Plett moved to the driver's seat and sat down. After noticing the van did not have any keys and that the ignition was punched out, Officer Davis asked Payne who the van belonged to. Plett replied that she had just bought it. At about the same time, dispatch advised Officer Davis that the registration on the van was expired. He then asked Plett for identification and she identified herself. Payne also identified himself and stated that he was on Proposition 36 probation. A records check disclosed that Payne had one felony and two misdemeanor arrest warrants and Plett had none. Officer Davis also confirmed that Payne was on probation with search terms for narcotics.

During a probation search of the van, Officer Davis found 7.75 grams of methamphetamine, two one-gram quantities of marijuana, a half-gram quantity of marijuana, 27 empty zip-lock bags, and a glass pipe in a bag that was located in one of the cardboard boxes or in the pile of clothes on the folded seat where Officer Davis had seen Payne moving and manipulating items. Officer Davis described the bag as a woman's coin purse with a "knockoff Gucci logo" that would be sold in the women's section of a department store.

Officer Davis also recovered two empty baggies from the bucket containing oil and two scales, a syringe, and a second glass pipe in an Oxy brand plastic container that was located in the rear of the van.

At the conclusion of the hearing, the court denied the motion to suppress.

DISCUSSION

The Motion to Suppress

Plett contends that because Payne was a guest in Plett's van, his probation status did not justify the search of the van. She also relies on this court's opinion in People v. Baker (2008) 164 Cal.App.4th 1152 (Baker) to contend that Payne's probation status did not justify a search of the coin purse because it was a distinctly feminine item and, thus, clearly did not belong to Payne. We will reject these contentions.

The standard of review to determine whether the trial court properly denied a motion to suppress evidence 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 under the Fourth Amendment, we exercise our independent judgment.' [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 384.)

"[A] warrantless search, justified by a probation search condition, may extend to common areas, shared by nonprobationers, over which the probationer has `common authority.' [Citation.]" (People v. Smith (2002) 95 Cal.App.4th 912, 916 (Smith).) Thus, "[i]t is true that if persons live with a probationer, common or shared areas of their residence may be searched by officers aware of an applicable search condition." (People v. Robles (2000) 23 Cal.4th 789, 798.)

Moreover, "`[t]hose associating with a probationer assume the ongoing risk that their property and effects in common or shared areas of a residence may be subject to search.' [Citations.]" (Smith, supra, 95 Cal.App.4th at p. 919.) When an officer executes a probation search, the officer may therefore "look into closed containers that he or she reasonably believes are in the complete or joint control of the parolee or probationer." (Baker, supra, 164 Cal.App.4th at p. 1159.) "The appearance of the object searched is but one of many factors to consider in assessing whether the reasonable suspicion standard was satisfied." (People v. Boyd (1990) 224 Cal.App.3d 736, 746.) Accordingly, with regard to a purse, the "critical issue" is "not whether the purse was `female' or gender-neutral," but whether the officer reasonably believed that the purse was under the probationer's control, or, at least, that the probationer had access to the purse. (Smith, supra, 95 Cal.App.4th at p. 919.)

Here, the court implicitly found that Plett owned the van at issue when it found that she had standing to challenge the search of the van and the coin purse. However, Payne was in the driver's seat when Officer Davis first saw the van and, afterwards, he moved to the rear of the van and began moving and "manipulating" items that were on the seat that was folded down flat. Officer Davis could reasonably conclude from these circumstances that Payne had common or shared authority over the interior of the van. Moreover, while he was in the rear of the van moving and "manipulating" items on the rear seat, Payne had access to the purse, which was located in that area and apparently unlocked, and the opportunity to secrete contraband in it. Further, Plett apparently did not assert a claim of ownership to the coin purse either by word or conduct when the purse was searched. Thus, notwithstanding the coin purse's feminine appearance, Officer Davis could reasonably believe, at minimum, that Payne had access to the purse.

Plett misplaces her reliance on Baker to contend otherwise. In Baker, this court held that the search of a purse belonging to a female passenger could not be justified by the male driver's parole search conditions. (Baker, supra, 164 Cal.App.4th at p. 1156.) Baker was the only passenger in a car that was stopped for speeding. The purse was sitting at her feet. When Baker was ordered to exit the vehicle during the subsequent parole search, she did so without taking her purse or asserting ownership of the purse. (Ibid.) On the facts presented, we concluded that "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. [Citation.]" (Id. at p. 1159.)

Baker is easily distinguishable from the instant case because in that case the purse was found in the female defendant's immediate presence, i.e., at her feet. Further, there was no evidence that the driver, who was subject to parole search conditions, had access or the opportunity to secrete contraband in the purse. In contrast, here, the purse was not found in Plett's immediate presence and the officer could reasonably conclude from Payne's movement in the van and his movement of the items in the area where the coin purse was found that Payne had access to the purse and the opportunity to hide contraband therein. Thus, we conclude that Officer Davis lawfully searched the van and the coin purse pursuant to the search conditions of Payne's probation and that the court did not err when it denied Plett's motion to suppress.

Violation of Plett's Plea Agreement

A jury trial in this matter commenced on December 21, 2009. On December 22, 2009, the court declared a mistrial.

On January 21, 2010, Plett entered into a plea agreement. In pertinent part, the agreement provided that in exchange for her plea to count 1 through count 4 of the information and her admission of the prior conviction enhancement, the court would dismiss the enhancement at her sentencing hearing and Plett would receive an indicated sentence of three years.1

On July 13, 2010, the court sentenced Plett in accord with her negotiated plea to a three-year term as follows: the middle term of three years on the transportation charge (count 1), stayed terms on the possession for sale and simple possession charges (counts 2 and 3), and a concurrent term on the misdemeanor possession of paraphernalia charge (count 4). The court, however, neglected to dismiss the prior conviction enhancement. Plett contends the court violated the terms of her plea bargain by its failure to dismiss the prior conviction enhancement. Respondent concedes and we agree.

"`"[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." [Citation.] [¶] The Supreme Court has thus recognized that due process applies not only to the procedure of accepting the plea [citation], but that the requirements of due process attach also to implementation of the bargain itself. It necessarily follows that violation of the bargain by an officer of the state raises a constitutional right to some remedy.' [Citations.]" (People v. Walker (1991) 54 Cal.3d 1013, 1024.) "The usual remedies for violation of a plea bargain are to allow defendant to withdraw the plea and go to trial on the original charges, or to specifically enforce the plea bargain." (People v. Mancheno (1982) 32 Cal.3d 855, 860-861.)

Here, the court violated Plett's plea agreement by its failure to dismiss the prior conviction enhancement in violation of an express term of her negotiated plea. Accordingly, we will dismiss this enhancement.

DISPOSITION

The prior conviction admitted by Plett pursuant to her plea bargain is dismissed. As modified, the judgment is affirmed.2