Filed 4/23/18 P. v. Franklin 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Butte)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

CASSIDY ADAM FRANKLIN,

Defendant and Appellant.
C083351

(Super. Ct. No. CM039103)




Defendant Cassidy Adam Franklin appeals from a judgment entered after a court trial following a “slow plea” to possession of child pornography. He argues: (1) the magistrate erred in applying the good faith exception to deny his motion to suppress evidence; and (2) the trial court erred in denying his subsequent motion to suppress evidence brought under Penal Code section 1538.5, subdivision (i). He asserts these errors require reversal of the judgment and dismissal with prejudice. The People agree defendant was entitled to a section 1538.5 hearing on the merits and request remand for such hearing. We concur with the People, reverse defendant’s judgment, and remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant’s initial motion to suppress evidence was heard and denied by a magistrate prior to the preliminary hearing, which was scheduled for a later date. Defendant later waived his right to a preliminary hearing, and the People filed an information, charging defendant with possession of matter depicting a minor engaging in sexual conduct in violation of section 311.11, subdivision (a).
Thereafter, defendant filed a new motion to suppress evidence, which the trial court denied, because it was not originally raised during a preliminary hearing. Defendant later filed motions in limine to dismiss for denial of a substantial right and to suppress the “piggy back” warrant for his computer, all premised on the illegality of the warrant originally implicated by his motion heard by the magistrate. The People opposed the motions, arguing defendant had already had his suppression hearing and lost. The trial court denied the motions.
Defendant filed a writ petition challenging the trial court’s denial of the suppression motion, which was denied by this court as untimely. The parties briefed the effect, if any, of this court’s action. The trial court did not change its previous rulings.
After reviewing the police reports on which the matter had been submitted, the trial court found defendant guilty. It sentenced him to three years’ formal probation and stayed imposition of 120 days in jail pending appeal, but immediately imposed the sex offender registration requirement.
DISCUSSION
Defendant’s Right To A Suppression Ruling In Superior Court
Defendant argues the trial court erred in denying his motion to suppress evidence brought under section 1538.5, subdivision (i), on the basis that it was procedurally barred.
Section 1538.5, subdivision (i), states in pertinent part: “If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing, . . . the defendant shall have the right to renew or make the motion at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 court days after notice to the people, unless the people are willing to waive a portion of this time. . . . If the offense was initiated by indictment or if the offense was initiated by complaint and no motion was made at the preliminary hearing, the defendant shall have the right to fully litigate the validity of a search or seizure on the basis of the evidence presented at a special hearing. . . .” (Italics added.)
Here, defendant waived his right to a preliminary hearing after the magistrate separately denied his motion to suppress the evidence. Because this occurred before the preliminary hearing, we find inapposite defendant’s authorities denying opportunities to bring motions to suppress within an ongoing preliminary hearing. (See, e.g., Cuevas v. Superior Court (1976) 58 Cal.App.3d 406, 410-411 [error to refuse to hear suppression motion on basis that judge presiding over preliminary hearing was not the magistrate who issued the warrant].)
Nonetheless, section 1538.5, subdivision (i) expressly affords defendant the right to bring a motion to suppress after “defendant was held to answer at the preliminary hearing. . . .” This right is not conditioned on his bringing such motion at the preliminary hearing. (Ibid.) Further, we see nothing in the statute that precludes defendant from utilizing this procedure after waiving the right to a preliminary hearing, nor do we believe the suppression hearing that occurred prior to the waiver of the preliminary hearing and the filing of the information qualified as a “special hearing” under section 1538.5, subdivision (i). The temporal prerequisite of defendant’s being held to answer after the preliminary hearing had not happened prior to his waiver of his preliminary hearing right.
Thus, the trial court erred in denying defendant’s suppression motion without reaching the merits. This error requires reversal of the judgment and remand for further proceedings so the trial court may consider the merits of the suppression motion. (People v. LeBlanc (1997) 60 Cal.App.4th 157, 167-170 [remand necessary where trial court erred in suppression ruling, but did not reach the merits of all relevant arguments].)
DISPOSITION
The judgment is reversed and matter remanded to the superior court with directions to vacate its order denying the motion to suppress and to conduct a new evidentiary suppression hearing consistent with this opinion. Based on the evidence adduced at the new suppression hearing, the trial court shall enter a new order granting or denying the motion to suppress. If the superior court grants the motion to suppress, it shall vacate the judgment and afford defendant the opportunity to withdraw his “slow plea.” If the superior court denies the motion to suppress, it shall reinstate the judgment.



/s/
Robie, J.

We concur:



/s/
Hull, Acting P. J.



/s/
Hoch, J.